Citation Nr: 21062395 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 15-03 184 DATE: October 7, 2021 REMANDED Entitlement to service connection for a lower back disability is REMANDED. Entitlement to service connection for a cervical spine disability is REMANDED. REASONS FOR REMAND The Veteran served honorably in the United States Army from March 1969 to October 1970. The certificate of release from active duty (DD214) reflects that the Vietnam Service Medal and Combat Infantry Badge were among the Veteran's medals and citations. Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claims prior to final adjudication. Entitlement to service connection for lower back and cervical spine disabilities is remanded. In April 2011, the Veteran submitted a VA Form 21-4138. Thereby, the Veteran initiated claims for service connection for upper and lower spine disabilities. The Veteran relayed that trauma to the spine occurred when he fell 20 feet after being pushed out of the door of a helicopter. In September 2012, correspondence was associated with the claims file. Therein, a physician relayed that, "(the Veteran) is being treated in our office for a spinal condition caused by degenerative cervical and lumbar discopathies. His problems are insidious, and related, by history, to injuries sustained serving in the military." The physician opined that, "there is no credible evidence to suggest (the Veteran's) chronic pain and somatic dysfunction were not caused by the reported military trauma." In January 2015, the Veteran's service treatment records (STRs) were associated with the claims file. After review, the Board observes that the STRs do not contain any notation about a back injury or a back injury that occurred after a fall from a helicopter. In addition, the Veteran's separation examination reflects that the Veteran demonstrated a normal spine. At that time, the Veteran reported that, "my physical condition is good," and the military examiner did not note a significant or interval history. In December 2019, the Veteran underwent a VA examination that considered the nature and etiology of cervical spine conditions. The examiner noted a 2013 diagnosis for degenerative arthritis of the spine. At that time, the Veteran relayed that his spinal pain began after he fell out of a helicopter in 1970. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service event. The examiner supplied the following rationale: "Veteran claims injury while falling out of a helicopter and landing on his back while in service, but the C File & Relevant Evidence file are silent for this incident. Veteran separation exam is also silent for complaints of neck/back pain and/or injury. Cervical degenerative changes are first mentioned in the record as of 2011 with medical visits and MRI in 2013. Lumbar spine DJD changes are noted on an Xray in 2011. Medical visits list fibromyalgia & rheumatoid arthritis as additional diagnoses in 2011. According to current medical literature from arthritis.org fibromyalgia & rheumatoid arthritis are autoimmune disorders which could be caused by genes, hormones and environmental factors, therefore these conditions would not have been caused by a fall from a helicopter. Degenerative joint changes in the cervical spine present in 2011 could have been caused by the fall from the helicopter, however, there is no record of this accident nor is there record of treatment for neck pain within one year of discharge. There is no medical record of rheumatoid arthritis, DJD, or fibromyalgia condition existing in this Veteran prior to 2011." In April 2021, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case (SSOC). Therein, the AOJ continued the denials of service connection for the Veteran's claims for service connection for upper and lower spine disabilities. On two occasions in July 2021, the Veterans treatment records from the Lakeland Clinic were associated with the claims file. After review, the Board notes that the records address the current severity of the Veteran's upper and lower spine disorders. However, the records do not address etiology and/or whether the upper and lower disorders were incurred during the Veteran's U.S. Army service. In August 2021, the Veteran's representative submitted a Written Brief Presentation. Therein, the representative acknowledged that the Board may not deem the evidence sufficient to award the Veteran's claims for direct service connection of the upper and lower spine disorders. The representative relayed that, "(i)f this is the case, we offer the following: the Veteran's neck/back disabilities are service connected on a secondary basis to his service connected generalized anxiety disorder (post-traumatic stress disorder . . .." When determining service connection, all theories of entitlement, direct and secondary, must be considered if raised by the evidence of record, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). At this time, the Board concludes that claims for secondary service connection for the Veteran's upper and lower spine disorders have been raised by the record. Consequently, a remand is necessary to secure a competent medical opinion on secondary service connection. The Board notes that the Veteran is currently service connected for the following disabilities: prostate cancer, coronary artery disease, posttraumatic stress disorder (PTSD), tinnitus, and bilateral hearing loss. The board also notes that, to date, the Veteran has not been afforded a VA examination that addresses secondary service connection. Consequently, on remand, the AOJ should secure a competent medical report, from a qualified examiner, that addresses secondary service connection for the Veteran's claimed upper and lower spine disabilities. Consequently, the matters are REMANDED to the agency of original jurisdiction (AOJ) for the following action: 1. The Veteran should be scheduled for a VA examination to determine the nature and etiology of the currently endured cervical and thoracic spine disorders. Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to the following question: Is it at least as likely as not (i.e. a 50 percent probability or greater) that any cervical and/or thoracic spine disorders currently endured by the Veteran was either (i) caused by or (ii) aggravated by one of the Veteran's service-connected disabilities, to include acquired psychiatric? Governing regulations provide that service connection is permissible on a secondary basis if a claimed disability is proximately due, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310. The term aggravation is defined as any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. See Ward v. Wilkie, No. 32 Cet. App. Vet. Claims 233 (2019). If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. It should be noted that the Veteran, is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the lay history provided by the Veteran, the examiner should provide a fully reasoned explanation. Explanations for all opinions must be provided. While providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records and the Veteran's statements regarding the onset of his cervical and thoracic spine disorders. 2. After completing any other development that may be warranted, the AOJ should readjudicate the claims on appeal. If the benefits sought are not granted, the Veteran and his representative must be given a supplemental statement of the case (SSOC) and a reasonable opportunity to respond before the record is returned to the Board. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.