Citation Nr: 21072659 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-22 330 DATE: December 3, 2021 REMANDED Entitlement to service connection for a cervical spine condition is remanded. Entitlement to service connection for a lumbar spine condition is remanded. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1984 to June 1987 and February 2003 to January 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO). A hearing was held before the undersigned Veteran's Law Judge in August 2021; a transcript has been associated with the record. 1. Entitlement to service connection for a cervical spine condition. The Veteran asserts her current cervical spine condition began in service and has continued to the present time. The Veteran asserts that while on active duty, sandbags were placed in their vehicle. While riding in the vehicle, the sandbags "slammed [her] up against the [dashboard]." The bags were so heavy that the Veteran had to have someone else remove them before she could exit the vehicle. She further stated that the rough terrain she was subjected to while riding in vehicles caused her to be jostled and "slung around" the interior. The Veteran also contends that during active-duty service, she fell backwards on to concrete, hitting her head which could have resulted in her current cervical spine condition. No VA examination has been provided for this claim. The Board finds that the duty to assist is triggered and a VA examination is needed for this claim. Consistent with the VA's duty to assist, under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The Veteran was diagnosed with moderate multilevel cervical osteoarthritis in December 2012. The Veteran's VA treatment records show she has continued to seek treatment for this condition since that time. This is competent evidence of a current disability. The Veteran asserts her injury occurred while deployed serving on active duty. The Veteran's military personnel records support that the Veteran was deployed from February 2003 to January 2004. Additionally, the Veteran's post deployment medical records state she was apart of Operation Iraqi Freedom. The Veteran's service treatment records from April 2003 shows the Veteran reported neck pain supporting her assertion the condition may have begun in service. Additionally, in a March 1985 medical note, the Veteran reported falling backwards and hitting her head on concrete. As there is evidence of a current disability, an in-service event, and an indication that the current disability may be associated with the in-service event, remand for a VA examination is required as there is insufficient medical evidence of record to make a decision on the claim. McLendon, 20 Vet. App. 79. 2. Entitlement to service connection for a lumbar spine condition. The Veteran asserts her current lumbar spine condition began in service and has continued to the present time. The Veteran stated her lumbar spine condition is also the result of the sandbags and rough terrain she was subjected to in service when riding in vehicles. The Veteran was provided a VA examination in February 2015 in which the examiner first stated that the Veteran's lumbar spine condition was related to service. However, the rationale provided stated "review of STRs and medical records from Cincinnati VA show onset of current presentation started in 2012 which is well after active-duty dates." An addendum opinion was provided later in February 2015 in which the examiner clarified the Veteran's lumbar spine condition was less likely than not related to her active-duty service. The same rationale as stated above was provided. The lack of medical documentation alone is not a valid basis for a medical opinion where the Veteran's lay statements must be considered. Buchanan v. Nicholson, 451 F.3d 1331, 1336 n.1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran's] disability such that his[/her] claim for service connection could be proven without contemporaneous medical evidence"). The February 2015 VA examiner noted that the Veteran reported the onset of her lumbar spine condition in service and additional reports of back pain while on active duty. However, the examiner appears to have dismissed the lay reports based on a lack of corroborating documentation alone. A remand is required to obtain a medical opinion which adequately addressed her lay assertions. 3. Entitlement to service connection for hypertension. The Veteran asserts her current hypertension began in service and has continued to the present. Alternatively, the Veteran asserts that her hypertension is aggravated by her service-connected "other specified trauma and stressor-related disorder." No VA examination has been provided for this claim. The Board finds that the duty to assist is triggered and a VA examination is needed for this claim. As stated above, a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See McLendon, 20 Vet. App. 79; 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Additionally, certain chronic diseases, such as hypertension, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran was diagnosed with hypertension in May 2005, about 16 months after her separation from service. Her private and VA medical records show she has continually sought treatment for this condition since that time. Additionally, the Veteran testified at the August 2021 hearing that she is actively prescribed medication for her hypertension which is monitored by her VA providers. This is competent evidence of a current disability. The Veteran's service treatment records from May 2003 note she was experiencing "mild high [diastolic blood pressure]." Additionally, in March 2003 the Veteran reported difficulty sleeping after experiencing "heart palpitations." In August 2006 the Veteran's reserve service treatment records also note elevated blood pressure. As there is evidence of a current disability, an in-service notation of hypertension, and an indication that the current disability may have begun in service or within one year of separation from service, remand for a VA examination is required as there is insufficient medical evidence of record to make a decision on the claim. McLendon, 20 Vet. App. 79. As for the Veteran's hypertension in relation to her service-connected mental health disability, a medical opinion is also warranted. For secondary service connection claims, an examination is required where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) a service-connected disability; (3) an indication that the disability or symptoms of disability may be associated with the service-connected disability; but (4) insufficient competent medical evidence on which to decide the claim. McLendon, 20 Vet. App. 79. As stated above, the Veteran has a current disability of hypertension. Additionally, she is service connected for "other specified trauma and stressor-related disorder." Thus, the first two elements of McLendon are satisfied. The record also contains an indication that the current disability and service-connected disabilities may be related. Namely, the Veteran's service treatment records show that she reported issues sleeping in relation to experiencing heart palpations while in active duty. The Veteran reported chronic sleep impairment as a symptom of her mental health condition in an October 2019 VA examination. As there has been no opinion provided on this theory of service connection, there is not sufficient competent medical evidence on which to decide the claim of service connection for hypertension as secondary to her service-connected mental health condition. A remand is required to obtain a medical opinion as to the relationship between the Veteran's hypertension and mental health condition. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for her cervical spine condition. The examiner must review the entire claims file. The examiner is asked to provide a response to the following: Is the Veteran's cervical spine condition at least as likely as not related to service, including being struck from behind with heavy sandbags, repeated jostling over rough terrain, and hitting her head on a concrete floor? Provide a rationale to support the opinion. The examiner should consider the Veteran's lay assertions regarding the onset of cervical spine pain in service. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's lumbar spine condition is at least as likely as not related to being struck from behind with heavy sandbags and repeated jostling over rough terrain. The examiner must provide a rationale to support the opinion. The examiner should consider the Veteran's lay assertions regarding the onset of lumbar spine pain in service. 3. Schedule the Veteran for a VA examination for her hypertension. The examiner must review the entire claims file. The examiner is asked to provide a response to the following: (a.) Is the Veteran's hypertension at least as likely as not proximately due to her service-connected mental health condition? (b.) Is the Veteran's hypertension at least as likely as not aggravated, i.e., worsened beyond its natural progression, by her service-connected mental health condition? (c.) Is it at least as likely as not that the Veteran's hypertension (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner is asked to provide a rationale for each opinion. The examiner should address the Veteran's lay assertions regarding the onset of symptoms in service and hypertension symptoms in relation to flare ups of her mental health condition. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.