Citation Nr: 21067090 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 14-22 503 DATE: November 3, 2021 ORDER Entitlement to service connection for a back disability is denied. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for headaches is remanded. FINDING OF FACT The preponderance of credible, competent and probative evidence is against a finding that any back disability began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1970 to March 1973, with additional Reserve service. In a December 2019 decision, the Board denied the claims. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2021 order, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated the Board's decision and remanded the Veteran's appeal to the Board for action consistent with the terms of the JMPR. The Veteran testified at a hearing before a Veterans Law Judge (VLJ) in May 2017. A transcript of the hearing has been associated with the record. The VLJ who conducted the hearing is no longer employed by the Board. The Veteran was informed of his right to a new hearing with a different VLJ in a September 2021 letter. The Veteran did not respond. As such, the Board will consider his claims based on the evidence of record. Entitlement to service connection for a back disability The Veteran contends that his current back disability was incurred in or caused by his active service. 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. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of lumbosacral spondylarthritis and a lumbar disc bulge, the preponderance of the evidence is against finding that his back disability began during active service, or are otherwise related to an in-service injury, event, or disease. The Veteran's service treatment records (STRs) from the Veteran's period of active duty service are silent for any complaints, treatment or diagnosis of a musculoskeletal back condition to include his separation examination reports in March 1973. The STRs show that the Veteran sought treatment for a nosebleed, sore throat, gastrointestinal issues, blisters to his feet, a bee sting, testicular pain and trauma to the face and head after being struck with a tool. There are no instances of any injuries to the back, to include falls during service. There is also no reason to suspect that the Veteran's STRs are incomplete. The Veteran testified at a May 2017 Board hearing, that he injured his back and sought treatment during active service. The Board finds that contention is not credible due to the inconsistency with other evidence in the record. The Veteran's STRs from his active service show the Veteran sought medical treatment on several occasions, but there are no findings or complaints of back pain or any other back injury incurred during active service. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran also testified that because he didn't have health insurance, he did not seek treatment for his back until 1984. A February 1975 Report of Medical History in connection with the Veteran's Reserve service included his report of a back injury in January 1975. This was well over one year after the Veteran was separated from active service. Additionally, the record contains evidence a December 1984 disability report that detailed the Veteran's report that he fell in a hole and injured his back while working for General Motors in 1976, after which time he was off from work on Workers' Compensation for several months and eventually returned to work on a light duty basis before ultimately being terminated. The report further documented that in February1984 the Veteran was tossing trash into a dumpster from the back of his pickup truck when he slipped and fell on his back, resulting in severe back pain the next day. In his July 1985 application for Social Security Administration (SSA) disability benefits, the Veteran reported that he was too disabled to work following an injury on February 4, 1984. Private medical records from October 1984 state that the Veteran injured his back when he fell at work in 1976 and also injured his back on February 4, 1984. In a statement submitted to SSA in October 1990 the Veteran reported that in February 1984 he was throwing trash into a dumpster from the back of his pickup when he slipped on ice and fell. In August 2000, the Veteran reported having two additional falls in 1996 and 1998 or 1999. While the Veteran asserts that his back disability is related to an incident in-service injury, event, or disease, the Board finds that the preponderance of the evidence weighs against findings that in-service injury, event, or disease occurred. Thus, service connection for a back disability is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt doctrine is not for application. REASONS FOR REMAND 1. Entitlement to service connection for a neck disability is remanded. 2. Entitlement to service connection for headaches is remanded. The claims are remanded for new opinions because the November 2018 VA examinations were inadequate. The November 2018 medical opinions did not discuss the Veteran's in-service complaints of neck pain and headaches. On remand, new examinations to determine service-connection for headaches and a neck disability are warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination (or tele-health interview, review of the record, etc., if an in-person examination is not feasible) with an appropriate VA examiner, to determine the nature and likely etiology of any diagnosed neck disability. Copies of all pertinent records must be made available to the examiner. After reviewing the record, the examiner is asked to answer the following questions: (a) Identify all currently diagnosed neck disability. (b) For each diagnosed neck disability, is it at least as likely as not (50 percent probability) that incurred in or is otherwise related to service? The examiner must consider and discuss the June 1972 service treatment record of the Veteran's complaint of pain to the left side of his neck A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. 2. Schedule the Veteran for a VA examination (or tele-health interview, review of the record, etc., if an in-person examination is not feasible) with an appropriate VA examiner, to determine the nature and likely etiology of any diagnosed headache disability. Copies of all pertinent records must be made available to the examiner. After reviewing the record, the examiner is asked to answer the following questions: Is it at least as likely as not (50 percent probability) that any currently diagnosed headache condition was incurred in or is otherwise related to service? The examiner must consider and discuss the January 1972 service treatment record of the Veteran's complaint of headaches that lasted four days. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.