Citation Nr: A21020089 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 200519-85346 DATE: December 16, 2021 REMANDED 1. Service connection for a back disorder. 2. Service connection for a neck disorder. 3. Service connection for right ankle disorder. REASONS FOR REMAND The Veteran served on active duty from July 1976 to July 15, 1979 and from July 16, 1979 to February 1983. However, the period of service from July 15, 1979 to February 1983, was deemed dishonorable pursuant to the September 1983 administrative decision. 38 C.F.R. § 3.12(c)(2). In March 2018, the Veteran testified at a travel Board hearing before a Veterans Law Judge. A transcript of the testimony is associated with the claims file. In June 2018, the Board remanded the case to the RO for further development. Thereafter, the Veteran submitted a form in December 2018 for the Veteran to opt into VA's new Rapid Appeals Modernization Program (RAMP), selecting the option for a supplemental claim. Thereafter, the Veteran filed a timely notice of disagreement (NOD) in May 2020 in regard to a March 2020 rating decision addressing these claims on appeal to the Board. Thus, the case is before the Board pursuant to the March 2020 rating decision. Service connection for a back disorder. Service connection for a neck disorder. Service connection for right ankle disorder. The Veteran asserts that has back, neck, and right ankle disorders that had their onset during service and have continued to present symptoms to the present. injuries. During the March 2018 Board hearing, he reported that while he was unloading potatoes off of a truck during basic training in 1976, several fifty-pound bags of potatoes fell out of the truck on top of him and injured his back and neck. The Veteran also reported that he was treated for his neck and back at Fort Jackson where x-rays showed fractures, was given muscle relaxers for the pain, taken off work for two months, and has suffered chronic pain ever since. He further reported that he injured his right ankle during a picnic race in 1977 when he hit a "chuck hole" which resulted in a crack in the bone and the need for an air cast for one and a half months. The Veteran also stated that an in-service vehicle accident "was just a fender bender" and that it did not affect his neck and low back injuries. The Board notes that the Veteran's service treatment records (STRs) from his first enlistment, July 1976 to January 1979, are missing. See August 2011 VA memorandum. The Board finds that additional efforts to obtain these records would be futile. 38 U.S.C. § 5103A(b)(3). In cases where the claimant's STRs have been lost or destroyed, the Board's obligation to provide well-reasoned findings and conclusions, to evaluate and discuss all of the evidence that may be favorable to the Veteran, and to provide an adequate statement of the reasons or bases for its rejection of such evidence is heightened. Washington v. Nicholson, 19 Vet. App. 362, 371 (2005). The Veteran's STRs from January 1979 until his discharge are of record. An October 1979 record noted an automobile accident resulting in headaches and blurry vision. In an October 1980 Report of Medical History, the Veteran noted a head injury and vision problems, but not broken bones, arthritis, or recurrent back pain. As noted above, the RO found the period of service from July 16, 1979 to February 1983 to be dishonorable. According to the September 1983 administrative decision his second term of service was shown to be dishonorable due to unauthorized absences totaling 380 days. As the Veteran's second term of service is deemed dishonorable for VA purposes, he is only eligible for disease or injury incurred during the first period of service. 38 C.F.R. § 3.12(c)(2). The Veteran's VA treatment records show that he reported in May 2010 experiencing chronic low back pain that started service that is worse with lifting or doing certain tasks. An October 2010 record shows an urgent complaint for worsening mid and low back pain with a tight neck. A February 2011 x-ray showed degeneration of the cervical spine. An April 2011 treatment record notes neck pain, cervical radiculopathy, and chronic low back pain in the Veteran's list of current problems, for which he was prescribed codeine in May 2011. An August 2013 ambulatory care note indicates the Veteran presented for a follow up on upper neck and mid back pain and reported currently feeling fine as he is able to walk about 10 miles daily. He also stated that his low back pain was not currently bothering him, but that he was experiencing upper/mid back pain that started during service. Imaging in 2010 showed mild to moderate narrowing of C5-C6. An April 2018 treatment record shows the Veteran has a history of falls including one at work in March 2018 when he fell down concrete steps due to being in a hurry. In May 2018, the Veteran submitted a private medical opinion from an internal medicine doctor and an MRI. The physician reported reviewing the Veteran's MRIs and finding that his current back and neck disabilities are most likely the result of in-service injuries. An October 2018 VA treatment record noted right ankle pain and popping. The Veteran was afforded a VA Examination for his back, neck, and ankle in February 2019. The Veteran reported developing lower back pain and neck pain in the mid-1970s after falling from a truck, that he had been seen by a provider at that time, that x-rays were taken, he was treated conservatively, had repeated episodes of pain which have manifested as intermittent pain which became constant approximately four years ago for the back and six years ago for the neck. He also reported developing right ankle pain after suffering a sprain in military service, he was treated with cast immobilization, having intermittent pain, typically brought on by cold weather since the injury. The examiner diagnosed lumbar osteophytes originally diagnosed in May 2010, cervical C5-C6 disc disease/spondylosis originally diagnosed in April 2011, and right ankle degenerative joint disease (DJD) originally diagnosed in November 2018. The examiner concluded the Veteran's claimed disabilities were less likely than not incurred in or caused by any in-service injury. The examiner explained that there are no STRs indicating an in-service back, neck, or right ankle injury. The examiner also explained that an October 1980 examination did not note any ankle, joint, neck, or lower back complaints and the physical examination at that time was unremarkable. The examiner stated that the Veteran developed back and neck disabilities more than 30 years after separation. The examiner also stated that disc disease and accompanying arthritis is a common age-related development present in approximately 40 percent of adults over the ages 35 to 45. The examiner further stated that the incidence of these conditions increases with age and is present in almost all individuals over the age of 60. The examiner concluded that the Veteran's development of right ankle DJD 38 years after separation is also age related. The Board finds that a remand is necessary as there is a duty to assist error for this claim prior to when the record was closed. In this regard, the February 2019 examiner relied on a lack of documentation of the Veteran's reported in-service injuries in finding the claims are not related to service. However, in this case, the Veteran's STRs are unavailable prior to January 1979. Therefore, a remand is necessary to obtain another examination in regard to the claims on appeal. See Washington, 19 Vet. App. at 371; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). These claims are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature and etiology of the back disorders. The entire claims file should be reviewed by the examiner. The examiner should then: (a.) Identify all of the back disorders experienced since December 2010. (b.) For each back disorder, state whether it is as at least as likely as not that it had its onset during service prior to July 16, 1979, within one year of July 15, 1979, or is otherwise related to service, to include a back injury in 1976 when several bags of potatoes fell out of the truck on top of him. A rationale should be provided for opinions expressed. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature and etiology of the neck disorders. The entire claims file should be reviewed by the examiner. The examiner should then: (a.) Identify all of the neck disorders experienced since December 2010. (b.) For each neck disorder, state whether it is as at least as likely as not that it had its onset during service prior to July 16, 1979, within one year of July 15, 1979, or is otherwise related to service, to include a back injury in 1976 when several bags of potatoes fell out of the truck on top of him. A rationale should be provided for opinions expressed. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature and etiology of the right ankle disorders. The entire claims file should be reviewed by the examiner. The examiner should then: (a.) Identify all of the right ankle disorders experienced since December 2010. (b.) For each right ankle disorder, state whether it is as at least as likely as not that it had its onset during service prior to July 16, 1979, within one year of July 15, 1979, or is otherwise related to service, to include an injury in a picnic race in 1977. A rationale should be provided for opinions expressed. DAVID JIMERFIELD Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, 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.