Citation Nr: 21066800 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-64 687 DATE: November 2, 2021 ORDER Entitlement to service connection for a forehead scar is granted. REMANDED Entitlement to service connection for cervical spine disability is remanded. Entitlement to service connection for thoracolumbar spine disability is remanded. FINDING OF FACT The Veteran injured his head resulting in a forehead scar while deployed to a combat zone. CONCLUSION OF LAW The criteria for service connection for a forehead scar are met. 38 U.S.C. §§ 1110, 1154 (b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from August 1989 to August 2004. During his active-duty service, the Veteran was, for periods of time, deployed to combat zones, specifically in Southwest Asia. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) November 2015 rating decision of the Agency of Original Jurisdiction (AOJ). In July 2021 the Veteran appeared before the undersigned Veterans Law Judge at a virtual Board hearing. A transcript of that hearing has been reviewed by the Board, and has been associated with the claims file. 1. Entitlement to service connection for scar The Veteran alleges that his scar, located on his forehead, was caused by an in-service accident. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For claims made by combat veterans, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. The combat presumption may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). However, the combat presumption provision of section 1154(b) does not mean that a grant of service connection is presumed. Even when the section 1154(b) combat presumptions apply, a "veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury...incurred during active duty." Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination, VA will resolve that doubt in the Veteran's favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran has provided sworn testimony as to the presence of a current scar on his forehead. See also December 2017 VA Form 9 (Appeal to Board of Veterans' Appeals). As such the first Shedden element necessary to establish service connection has been met. The Board notes that the Veteran's service treatment records (STRs) generally, and his July 2008 separation examination specifically, are silent as to any injury to the head or forehead scar. The Veteran's post-service treatment records show no complaints of, or treatment for, issues or complications related to his scar. In a December 2015 VA examination (performed to determine the severity and/or etiology of any traumatic brain injury) the Veteran reported being accidentally struck on the forehead with a rifle, necessitating stitches. The Veteran noted that incident occurred days prior to the invasion of Kuwait, and as such he did not report to sick call. Rather, the stitching was performed by his unit's medic, which is "probably" why there "is no record of it" in his STRs. The Veteran again explained the cause in his November 2017 Notice of Disagreement. At his July 2021 Board hearing the Veteran testified as to the incident where he hit his head. He reported being told by another soldier that the "cut is deep" and would require stitches, and as such was sent to see "the medics." The Veteran explained that his scar "hurts at times," but he had not sought treatment for it as he had gotten used to it. Upon review of the record, specifically the Veteran's military personnel records, the Veteran was clearly deployed to a combat zone in Southwest Asia. This is further corroborated by the Veteran's receipt of the Combat Infantry Badge (CIB), the fact that he received "Hostile Fire/Imminent Danger" pay along with a "Combat Zone Tax Exclusion," and his treatment notes for his service-related posttraumatic stress disorder (PTSD). The Veteran's military occupational specialty was that of an infantryman, and the type of incident is consistent with the Veteran's circumstances, conditions, or hardships of his service in Southwest Asia. Furthermore, the Board finds the Veteran to be a credible witness, and he is competent to provide testimony regarding incidents he experiences. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board is giving the Veteran the benefit of the doubt that he experienced an in-service accident where he was hit in the head in a combat zone. In sum, the Board finds that the Veteran's forehead scar was due to an in-service accident necessitating stitches. Accordingly, the Board resolves all doubt in the Veteran's favor, and service connection for a forehead scar is warranted. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. At 54. REASONS FOR REMAND 1. Entitlement to service connection for cervical spine disability, diagnosed as degenerative arthritis is remanded. 2. Entitlement to service connection for thoracolumbar spine disability, diagnosed as degenerative arthritis is remanded. The Veteran contends that his cervical spine (neck) and thoracolumbar (back) disabilities are caused by, or otherwise due to, his active duty service. The Veteran's medical records show that he has been diagnosed with degenerative arthritis of his beck and back, which fulfills the first Shedden element necessary to establish service connection. Furthermore, the Veteran's STRs, specifically his July 2004 separation examination, shows that the Veteran complained of neck and back pain. A September 2015 VA examination found that neither the Veteran's neck nor back disability were caused by, or otherwise due to, his military service. The examiner described both conditions as "acute," and cited the lack of "evidence of chronicity of care" as the reasoning behind finding against the Veteran. The Board finds that the September 2015 VA examiner's reports are inadequate for adjudication purposes, as the reasoning is both faulty and conclusory. The examiner's rationale is faulty, as it incorrectly applies the law regarding the availability (or lack thereof) of evidence to the Veteran's case. The absence of evidence is not evidence of absence. The lack of contemporaneous medical evidence cannot be weighed against the lay evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). In effect, the examiner may not rely on the fact that there is no post-service medical evidence of ongoing care to support a negative nexus opinion. Furthermore, the examiner's findings were conclusory, in that they did not provide the rationale behind finding that the Veteran's neck and back disabilities were acute. As such, the examiner's opinions regarding the etiology of the Veteran's neck and back disabilities are inadequate for adjudication. At his July 2021 Board hearing, the Veteran testified that hurt his neck twice, once in 1993 and another time in 1997 when he fell off of a truck. It was the 1997 incident where the Veteran also hurt his back. Further, as an infantryman, the Veteran also regularly carried heavy loads on his back for significant distances. According to the Veteran, his neck and back have hurt since his time in the military. The Veteran is competent to report this. However, determining the etiology and progression of degenerative diseases of the spine are complex medical questions that can only be addressed by qualified medical professionals. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As there is no competent, credible, and/or probative medical opinion of record adequately addressing the etiology of the Veteran's spinal conditions, the Board finds that a remand is necessary to assist the Veteran in developing his claim. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination, to be conducted by a qualified medical professional to determine the etiology of the Veteran's cervical and thoracolumbar spine conditions. The examiner shall be provided with a copy of the claims file, as well as a copy of these remand directives. The examiner must provide the following opinions: (a.) Whether it is as least as likely as not (50 percent chance or greater) that the Veteran's cervical spine disability is caused by, or otherwise due to, his active duty military service. The examiner must address the fact that the Veteran reported two in-service injuries to his neck, as well as the fact that the Veteran would regularly carry heavy loads over significant distances, and that his neck has hurt since he separated from service. The examiner must provide a complete rationale for the opinion. If the examiner is unable to provide the required opinion without resorting to mere speculation, the examiner must explain why that is the case. (b.) Whether it is as least as likely as not (50 percent chance or greater) that the Veteran's thoracolumbar spine disability is caused by, or otherwise due to, his active duty military service. The examiner must address the fact that the Veteran reported an in-service injury to his back, as well as the fact that the Veteran would regularly carry heavy loads over significant distances, and that his back has hurt since he separated from service The examiner must provide a complete rationale for the opinion. If the examiner is unable to provide the required opinion without resorting to mere speculation, the examiner must explain why that is the case. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, Associate 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.