Citation Nr: 20043740
Decision Date: 06/29/20	Archive Date: 06/29/20

DOCKET NO. 18-45 101
DATE: June 29, 2020

REMANDED

Entitlement to service connection for a lumbar spine disability is remanded.

Entitlement to service connection for neck disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1955 to September 1957.  These matters are before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

In June 2020, the Veteran testified before the undersigned Veterans Law Judge at a Board Virtual hearing.

1. Entitlement to service connection for a lumbar spine disability is remanded.

2. Entitlement to service connection for neck disability is remanded.

The Board notes that the Veteran’s service treatment records (STRs) are unavailable.  The RO requested them but received a response from the National Personnel Records Center (NPRC) in August 2015 that the records were “fire-related.”  

When STRs are lost or missing, the United States Court of Appeals for Veterans Claims (Court) has held that VA has a heightened duty “to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision.”  Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)); see also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  However, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records.  See Cromer, 19 Vet. App. at 217-18 (2005) (Court declined to apply “adverse presumption” against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown).

The Veteran asserts that his current back and neck disabilities are etiologically related to an in-service training accident during service when his vehicle was struck by a motor round.  He indicates that he has had chronic back and neck pain since service.  To date, VA has not obtained a competent medical opinion addressing these claims.  Accordingly, a VA medical opinion is necessary prior to further adjudication.  See McClendon v. Nicholson, 20 Vet. App. 79 (2006).

The matters are REMANDED for the following action:

1. Provide the Veteran with a VA examination to determine the nature and etiology of any current neck and back disabilities.  The entire claims file, including a copy of this Remand, should be made available to, and be reviewed by, the examiner.  

It is left to the examiner’s discretion whether to perform an in-person examination.

The examiner is advised that the Veteran’s STRs are unavailable and such is not fatal to the service connection claim.

The examiner should note that the Board finds the Veteran’s account of his in-service back and neck injuries credible.

After examining the Veteran and reviewing the file, the examiner is asked to provide the following opinion:

Is it at least as likely as not (50 percent probability or greater) that each currently diagnosed back and neck is related to, caused by, or aggravated by an in-service event, disease, or injury? 

A thorough explanation must be provided for the opinions rendered.

 

 

H.M. WALKER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. McPhaull, Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.