Citation Nr: 21076893 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-27 120 DATE: December 28, 2021 ORDER Entitlement to service connection for cervical spondylosis (cervical spine disability) is granted. Entitlement to service connection for lumbosacral strain (lumbar spine disability) is granted. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran's cervical spine disability is due to his in-service fall. 2. The evidence is at least evenly balanced as to whether the Veteran's lumbar spine disability is due to his in-service fall. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for cervical spine disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for lumbar spine disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from January 1993 to February 2001. This appeal arises from a November 2015 Department of Veterans' Affairs (VA) Regional Office (RO) denial of service connection for cervical spine and lumbar spine disabilities. The Veteran filed a timely substantive appeal (via VA Form 9) in June 2019. The Board remanded the claims in April 2021 for a new cervical spine medical opinion and a lumbar spine examination. As discussed below, both instructions were met, the remand instructions were satisfied, and the claims have returned to the Board for adjudication. Service Connection The Veteran contends that his lumbar and cervical spine disabilities were due to a fall in service in 1994 where he slipped down a hall with a large rucksack on his back while serving as a rifleman. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In August 2021 VA examinations, the Veteran was diagnosed with degenerative arthritis of the cervical spine and a lumbosacral strain, thereby satisfying the current disability element for both claims. The Veteran also consistently reported that while in service, he was carrying a heavy rucksack walking down hill on slippery grass, fell and rolled to the bottom of the hill. The Veteran contends he went to see a doctor but the medical records were inadvertently sent to Okinawa, Japan. Many of the Veteran's service treatment records are missing and unavailable, therefore limiting the evidence available to the Board. Therefore, because the Veteran's service treatment records are not available, and the Veteran has consistently reported an in-service fall since service, the evidence is at least evenly balanced as to whether the Veteran suffered a fall in service. Thus, the in-service element of service connection has also been established for both claims. The dispositive issue before the Board, therefore, is whether there is a nexus between the Veteran's in-service fall and his current lumbar and cervical spine disabilities. The Veteran's claims were remanded by the Board in April 2021 because the medical opinion of record at the time for the Veteran's cervical spine disability was inadequate because it relied solely on the absence of documentation in the record and did not take into account the Veteran's reports of symptoms and history; the claim for the Veteran's lumbar spine was remanded for a VA examination and medical opinion in the first instance under McLendon v. Nicholson, 20 Vet. App. 79 (2006). In August 2021, the Veteran was afforded a VA examination for his lumbar spine and medical opinions were provided for both claims, thereby satisfying the remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Turning to the opinions, a VA nurse practitioner provided two August 2021 medical opinions each for the Veteran's cervical spine and lumbar spine, largely equivalent to each other. The VA nurse's opinions relied largely on silence in the Veteran's service treatment records and not mentioning his neck and back pain until 2005, four years after separation from service, despite the fact that there are treatment records from 2003 showing back pain and the Veteran reported in 2009 that he did not seek treatment in service. As previously mentioned in the Board's April 2021 remand, however, an opinion that relies solely on the absence of documentation in the record is inadequate. While the VA nurse's opinion does not rely solely on absence of documentation, it is an integral part of the rationale. Furthermore, many of the Veteran's service treatment records are missing, so relying at all on absence in the Veteran's records as part of the opinion's rationale reduces its credibility. Lastly, an examiner cannot make a negative inference based on when the Veteran decided to seek benefits for his lumbar and neck disabilities. Fountain v. McDonald, 27 Vet. App. 258, 274 (2015) ("[T]here may be reasons unrelated to the merits of the claim or unrelated to whether a claimant is experiencing symptoms of the condition that explain why a claimant does not seek VA benefits at the same time that he or she focuses on seeking VA benefits for another condition."). For the foregoing reasons, the VA nurse's August 2021 medical opinions are inadequate and warrant no probative weight. The Board is left with the lay evidence of record, which has consistently shown complaints of back and neck pain since service. Treatment records from October 2003, two years after service, reported complaints of mid to lower back pain since service. September 2009 treatment records reflect his lower back has been causing pain for over five years and, in November 2009, that it has progressively worsened. April 2015 treatment records report chronic neck and back pain since service and that his neck pain began after his fall in service. While the Board could remand the case again for new opinions, such a request could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). Here, the evidence is sufficient to decide the claim, as the evidence is in relative equipoise as to whether the Veteran's lumbar and cervical spine disabilities are due to his in-service fall. Thus, resolving reasonable doubt in the Veteran's favor, entitlement to service connection for cervical spine disability and lumbar spine disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board JR Cummings, 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.