Citation Nr: 21073783 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 16-12 223 DATE: December 10, 2021 ORDER Entitlement to service connection for residuals of a spinal tap is denied. Entitlement to service connection for neuropathy of the bilateral lower extremities, as secondary to residuals of a spinal tap, is denied. Entitlement to service connection for a low back disability, as secondary to residuals of a spinal tap, is denied. Entitlement to service connection for cysts, as secondary to residuals of a spinal tap, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran had a spinal tap during service, and any reported current residuals thereof, to include headaches, neuropathy of the bilateral lower extremities, low back disability, and cysts cannot be linked to service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a spinal tap have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for neuropathy of the bilateral lower extremities have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for cysts have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from June 1960 to April 1964. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. The Board remanded the claims for further development in January 2017, July 2017, and August 2018. A November 2019 Board decision denied the claims for service connection for residuals of a spinal tap, neuropathy of the lower extremities, cysts, and low back disability. The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (Court). In April 2021, pursuant to a Joint Motion for Remand (JMR), the Court vacated the Board's November 2019 decision and remanded the matter to the Board for action consistent with the JMR. The Board notes that the claims for service connection for a brain tumor, kidney condition, hypertension, and bilateral knee disability; claim for an increased rating for umbilical hernia; and claim for entitlement to a total individual rating based on individual employability (TDIU) will be addressed in a separate Board decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection is warranted where a claimed disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The threshold legal requirements for a successful secondary service connection claim are evidence of (1) a current disability for which secondary service connection is sought; (2) a disability already service-connected; and (3) competent evidence that the already service-connected disability caused or aggravated the disability for which service connection is sought. Id. The Veteran contends that service connection is warranted for residuals of an in-service spinal tap, to include headaches, cysts, low back pain, and bilateral lower extremity neuropathy. Specifically, the Veteran contends that in 1963, he underwent a spinal tap at Moffett Field Naval Base. See September 2016 Board hearing transcript. The Board notes that the Veteran's service treatment records (STRs) are silent as to any in-service spinal tap procedure. Rather, a March 4, 1963 treatment record noted that the Veteran had "possible contact secondary LUES"; a VDRL test was ordered. A March 5, 1963 treatment record noted that he tested positive for VDRL (syphilis) and was admitted to the dispensary ward. The Board notes that no information was provided as to what testing methodology was utilized for the VDRL test. This evidence of a VDRL test does not indicate nor provide evidence of a spinal tap. The Board remanded the claim in August 2018 to obtain clinical records of the Veteran's inpatient treatment at Moffett Field, to include records which may have shown that the Veteran underwent a spinal tap at that time. In September 2018, the agency of original jurisdiction (AOJ) submitted a PIES request, ID 6800687, using code 50 for a complete copy of the Veteran's medical/dental records and entire personnel file at National Personnel Records Center (NPRC). A September 2018 PIES response to that request indicated that all available requested records were shipped on September 28, 2018 for upload into VBMS. A November 2018 deferred rating decision indicated that the STRs and military personnel records received in September 2018 were duplicative, and that the inpatient records were to be requested using a separate request code, C01-V. Thus, in November 2018, the AOJ submitted another PIES request, ID 6873192, using code C01-V for inpatient clinical records from Moffett Field dating from January 1963 to December 1963. A January 2019 PIES response to that request indicated that the allegation had been investigated and that the 1963 records from Moffett Field had not been retired to code 13. A February 2019 PIES request, ID 6940290, using code 99 requested advisement on the PIES ID 6873192 to see if the records were retired to code 13. A June 2019 PIES response to that request indicated that all of the available personnel documents and/or STRs were uploaded in response to PIES ID 6800687. In a July 2019 VA correspondence, the Veteran was notified that VA requested the Veteran's military records from NPRC in September 2018 and February 2019. The letter indicated that the requested records were unavailable for review and that all efforts to obtain the needed information had been exhausted and further attempts to obtain the records would be futile. The Board notes that while the July 2019 letter indicates that it is in regard to military retirement disability records the substance of the letter makes it clear that this is a typo as the included information correlates to the requests for inpatient treatment records from Moffett Field in relation to the claims for service connection listed above. The Board finds that the duty to assist has been satisfied, and that there has been substantial compliance with its August 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, VA has made reasonable efforts to obtain any 1963 dispensary ward and/or inpatient treatment records from Moffett Field; however, a formal finding of unavailability is of record, which reflects that all attempts to obtain these records have been unsuccessful. See 38 C.F.R. § 3.159(c)(1). Given the aforementioned, any further attempts to obtain these records would be futile. In these circumstances, the duty to assist does not require additional action on the part of VA. The Board has considered the JMR in full and finds that there has been compliance with prior Board remands and that the duty to assist in obtaining evidence has been met. The Board finds that this evidence weighs against a finding that a spinal tap occurred during service. As such, service connection is not warranted for residuals of this contended procedure. The Board notes that while the Veteran's VA treatment records contains references to an in-service spinal tap, such references appear to be based on the Veteran's reports and not any medical evidence showing the reported treatment. The Board has carefully considered the Veteran's lay contentions that he received a spinal tap during service. The Veteran is competent to give evidence about observable symptoms. Layno v Brown, 6 Vet. App. 465 (1994). However, findings of competency and credibility are two distinct matters, and after careful review of the evidence, the Board finds that the evidence is not at least in relative equipoise as to whether the spinal tap procedure occurred. In making this determination, the Board has fully considered the Veteran's lay statements in light of the available medical evidence and finds that the Veteran's testimony as to the factual existence of an in-service spinal tap is not supported by the existing medical evidence in his STRs. In this regard, the Veteran reported the significant and immediate impact of the contended spinal tap on his health and detailed multiple disabilities that arose due to this contended procedure. See September 2016 Board hearing transcript. However, the available record after the contended procedure does not indicate any complaints, diagnoses, or treatment for any of the now asserted disabilities. Additionally, the Board notes that the lone report of headaches in service was in March 1961, two year prior to his contended spinal tap. The Veteran's April 1974 separation examination indicated no abnormalities, besides a small umbilical hernia and pes planus. Accordingly, the Board finds that the available records weighs against a finding that the procedure occurred. As noted, the service records do not support, but rather weigh against, the Veteran's report of in-service spinal tap. For the reasons detailed, the Board finds these service records the most probative evidence of record. Moreover, the Veteran contends that his neuropathy of the bilateral lower extremities, low back disability, and cysts are secondary to his in-service spinal tap. However, as the Board has denied the claim for service connection for residuals of a spinal tap herein, the threshold legal requirement for establishing secondary service connection is not met, i.e., it is not shown that the primary disability alleged to have caused or aggravated the disability for which service connection is sought is service connected. Accordingly, secondary service connection is not warranted, and the claims are denied as a matter of law. See 38 C.F.R. § 3.310(a). Service connection for these disabilities is also not warranted on a direct basis. The Veteran contends that these disabilities are related to his contended 1963 spinal tap; however, as established above, the Board finds that the spinal tap did not occur. The Board acknowledges that the Veteran was not afforded VA examinations and medical opinions with respect to the claims for service connection but finds no such examinations were required because the evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with the Veteran's active service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Under McLendon, VA is obligated to provide an examination when the record contains: (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability), (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service, but (4) there is insufficient competent medical evidence on file to decide the claim. Id. The Board finds that in the instant matter, there is no competent evidence that the Veteran underwent an in-service spinal tap procedure. Additionally, the Veteran's STRs are silent as to any complaints, treatment, or diagnoses of residuals of a spinal tap, lower extremity neuropathy, back pain, or cysts. Accordingly, the evidence is against finding any in-service injury or event that may be etiologically related to claimed disabilities or that they may be etiologically related to service. For these reasons, the Board finds that VA examinations and medical opinions are not necessary to decide the claims for service connection. McLendon, 20 Vet. App. at 81; 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i)(C). In sum, as the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not for application, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Robinson, 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.