Citation Nr: 21072707 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-27 330 DATE: December 6, 2021 ORDER Entitlement to service connection for a low back disability is dismissed. REMANDED Entitlement to service connection for a headache disorder is remanded. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to a service-connected disability, is remanded. FINDING OF FACT Service connection for a low back disability, diagnosed as lumbosacral strain with radiculopathy of the bilateral lower extremities, was granted in a November 2020 rating decision. CONCLUSION OF LAW There is no case or controversy as to the issue of entitlement to service connection for a low back disability, and the claim is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.104. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1972 to June 1976. The Veteran had additional periods of qualifying active service in the Army National Guard from July 1978 to May 1997. A Board hearing was held before the undersigned Veterans Law Judge in August 2019, and a transcript of the hearing is of record. Entitlement to service connection for a low back disability is dismissed. The Veteran's claim for entitlement to service connection for a low back disability was remanded by the Board in December 2019 for additional development. On remand, in a November 2020 rating decision, the agency of original jurisdiction (AOJ) awarded service connection for a low back disability, diagnosed as lumbosacral strain with radiculopathy of the bilateral lower extremities. The November 2020 rating decision awarding service connection for a low back disability constitutes an initial decision under the modernized review system, also known as the Appeals Modernization Act (AMA). Although the previously remanded issue of entitlement to service connection for a low back disability was re-certified to the Board, the November 2020 rating decision represents a full grant of the benefits sought on appeal at that time. To date, the Veteran has not initiated an appeal of the November 2020 rating decision, and the Board does not have jurisdiction over any downstream issues (to include the disability rating assigned by the AOJ) concerning the Veteran's service-connected lumbosacral strain with radiculopathy of the bilateral lower extremity. Accordingly, there remains no case or controversy for the Board to resolve concerning the issue of entitlement to service connection for a low back disability, and the appeal is dismissed. 38 U.S.C. § 7105(d)(5). REASONS FOR REMAND Entitlement to service connection for a headache disorder is remanded. The Veteran's claim for entitlement to service connection for a headache disorder was remanded by the Board in December 2019 for additional development. The Board regrets the additional delay, but finds remand is once again necessary for the reasons discussed further below. In this case, the Veteran contends that she began experiencing headaches during her period of active duty from June 1972 to June 1976, as well as following a motor vehicle accident that occurred during a qualifying period of service in the Army National Guard from July 1978 to May 1997. See also February 2013 VA examination. The Board adds that the Veteran's award of service connection for a low back disability was based on her report of a motor vehicle accident that occurred during a qualifying period of service in the Army National Guard. See November 2020 rating decision. With respect to the Veteran's period of service in the Army National Guard July 1978 to May 1997, it appears service treatment records (with the exception of an enlistment examination and "over 40 physical") from this period are unavailable for review despite exhaustive efforts to obtain such records. In such cases where a claimant's records are lost or unavailable, VA has a "heightened" duty to assist the claimant that includes advising her that her records were lost, advising her to submit alternative forms of evidence to support her claim, and assisting her in obtaining this alternative evidence. See Washington v. Nicholson, 19 Vet. App. 362, 370 (2005); see also Russo v. Brown, 9 Vet. App. 46, 51 (1996) (finding that the Board had a heightened duty "to consider the applicability of the benefit of the doubt"). Pursuant to the December 2019 Board remand, the Veteran was afforded an examination in July 2020. The examiner noted that the Veteran received a diagnosis of and treatment for headaches, one of which was related to a viral condition, during her period of active duty service. The examiner opined the Veteran's current diagnosis of tension headaches is less likely than not related to active duty or qualifying National Guard service, to specifically include a motor vehicle accident during her National Guard service, due to a lack of treatment records documenting chronicity of symptoms. As noted in the December 2019 Board decision, although the lack of contemporaneous medical records may be considered and weighed against lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and sound reasoning for the conclusion). The Board finds remand is necessary to obtain a new medical opinion concerning the nature and etiology of the Veteran's claimed headache disorder in light of the medical opinions of record that appear to rely primarily on a lack of contemporaneous medical records, and the Board's heightened duty to assist where the Veteran's service treatment records from the Army National Guard from July 1978 to May 1997 are largely unavailable. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran's claim for entitlement to service connection for an acquired psychiatric disorder was remanded by the Board in December 2019 for additional development. The Board regrets the additional delay, but finds remand is once again necessary for the reasons discussed further below. The Veteran contends that her acquired psychiatric disorder is secondary to her low back disability and medications prescribed for her headache disorder. See also G.W. statement received by VA in September 2019 (reporting the Veteran experienced sleep deprivation due to pain, lack of energy from not enough sleep, and depression due to no relief). Pursuant to the December 2019 Board remand, the Veteran was afforded a mental disorders examination in August 2020. With respect to direct service connection, the examiner opined that there was no evidence to support that the Veteran's currently diagnosed acquired psychiatric disorder is related to service. The examiner's conclusion appears to rely primarily on a lack of contemporaneous records, and is not supported with a clinical explanation or rationale. Buchanan, 451 F.3d at 1337; see also Nieves-Rodriguez, 22 Vet. App. at 304. With respect to secondary service connection, the examiner opined in August 2020 that there is no evidence that the Veteran's acquired psychiatric disorder was caused by or due to service-connected disabilities. However, the Board notes that the Veteran was not service-connected for a low back disability at the time of the August 2020 VA examination. See November 2020 rating decision (awarding service connection for a low back disability). In light of the Veteran's contentions, the Board finds the issue of entitlement to service connection for an acquired psychiatric disorder is inextricably intertwined with her service connection claim for a headache disorder, which is being remanded in the decision herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Additionally, the Board finds remand is necessary to obtain a new medical opinion concerning the nature and etiology of the Veteran's acquired psychiatric disorder, to specifically include whether such is secondary to the Veteran's service-connected low back disability. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate examiner addressing the nature and etiology of the Veteran's claimed headache disorder. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for an examination. Based on a review of the record, and if necessary, an examination, the examiner should address the following: (a.) Identify any headache disorder found present during the period on appeal. (b.) Is it at least as likely as not (approximately 50 percent probability) that any such headache disorder had onset in or is otherwise related to service, to specifically include the Veteran's report of headaches during active duty service or the motor vehicle accident during her period of qualifying service in the Army National Guard? The examiner should assume as true that the Veteran was involved in a motor vehicle accident as she described during her qualifying Army National Guard service. A complete medical rationale for all opinions expressed must be provided. 2. Obtain a medical opinion from an appropriate examiner addressing the nature and etiology of the Veteran's claimed acquired psychiatric disorder. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for an examination. Based on a review of the record, and if necessary, an examination, the examiner should address the following (a.) Identify any acquired psychiatric disorder for the period on appeal. (b.) Is it at least as likely as not (approximately 50 percent probability) that any such acquired psychiatric disorder had onset in or is otherwise related to the Veteran's active duty or qualifying National Guard service? (c.) Is it at least as likely as not (approximately 50 percent probability) that any such acquired psychiatric disorder was caused or aggravated beyond its natural progression by a service-connected disability or disabilities, to specifically include the Veteran's service-connected low back disability? A complete medical rationale for all opinions expressed must be provided. 3. Readjudicate the appeal. If the benefits sought remain denied, issue the Veteran and her representative a supplemental statement of the case and inform the Veteran of her appeal options. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Mask, 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.