Citation Nr: 21008960 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 10-01 634 DATE: February 18, 2021 ORDER Entitlement to service connection for a cervical spine disability is granted. REMANDED Entitlement to an increased rating for lumbosacral strain, currently rated as 40 percent disabling, is remanded. Entitlement to an effective date prior to February 14, 2015 for a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s March 1981 entrance examination report does not note a cervical spine abnormality. 2. Although there is evidence that suggests a cervical spine abnormality pre-existed the Veteran’s active service, the evidence fails to establish the condition was clearly and unmistakably not aggravated during active service. 3. Expert medical evidence links the Veteran’s current cervical spine disability to the condition noted during active service. CONCLUSION OF LAW The criteria for service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1981 to August 1990. The Veteran’s appeal of the denial of service connection for a cervical spine disability comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision. The Veteran appeared at hearing before the undersigned in June 2017. A transcript of the hearing is of record. The Veteran’s appeal was most recently before the Board in July 2020 when it was remanded for further development. Specifically, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain a new opinion regarding the Veteran’s claim due to inadequacies in previously obtained opinions. The AOJ obtained a new opinion, as directed, and has now returned the matter to the Board for further appellate consideration. Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Here, there is evidence that suggests the Veteran may have had a cervical spine abnormality prior to his active service. The Veteran’s September 2020 VA examiner noted treatment records indicate the Veteran was in an automobile accident at the age of 16 and developed a Chiari malformation that was subsequently aggravated by the physical nature of active service and the in-service motorcycle accident that caused his lumbar spine disability. There are treatment records dating back several decades to corroborate the Veteran injured his neck in a pre-service automobile accident. The Board acknowledges the AOJ obtained a second opinion regarding the Veteran’s claim in November 2020. The reason for this negative development is not entirely clear from the record, but the November 2020 VA examiner provided an opinion indicating there is insufficient evidence to establish a pre-service condition. The Board finds the November 2020 VA examiner’s opinion is of similar probative value when compared with the September 2020 VA examiner’s opinion regarding the presence of a pre-service condition. Thus, the Board resolves reasonable doubt in the Veteran’s favor and will base its analysis on the September 2020 VA examiner’s opinion as this is more favorable to the Veteran in the context of the present appeal, as discussed in more detail below. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111, 1132; 38 C.F.R. § 3.304(b). The Veteran’s March 1981 entrance examination report does not note a Chiari malformation or any other cervical spine abnormality; therefore, the presumption of soundness on entry to service attaches with respect to the Veteran’s claim. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). The presumption of soundness may be rebutted by clear and unmistakable evidence showing that a disability pre-existed service and that the disability was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Thus, when the presumption of soundness applies, the Veteran is not required to show that a pre-existing injury or disease increased in severity during service. Id. Rather, the burden remains with VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. Id. VA may show a lack of aggravation if clear and unmistakable evidence establishes that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the pre-existing condition. Id. If this burden is met, then the claimant is not entitled to service connection benefits. Id. On the other hand, if VA fails to show a lack of aggravation by clear and unmistakable evidence, then the presumption has not been rebutted. Id. at 1094 (holding that Congress intended to “convert aggravation claims to ones for service connection when the government fails to overcome the presumption of soundness”). In that case, the claim will be considered as a normal claim for service connection and, if granted, no deduction for the degree of disability existing at the time of entrance will be made. Id. at 1096 (citing 38 C.F.R. § 3.322). In other words, the claim may not be denied, nor benefits deducted, on the basis of a finding that the disability in question pre-existed active service, if VA does not also meet its evidentiary burden of showing that the disability was not aggravated during service. The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an “onerous” and “very demanding” evidentiary standard, requiring that the evidence be “undebatable.” See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). Although there is evidence that suggests a cervical spine abnormality pre-existed the Veteran’s active service, the evidence fails to establish the condition was clearly and unmistakably not aggravated during active service. Since the Veteran’s September 2020 VA examiner explicitly noted the Veteran’s pre-existing condition was aggravated by service, the Board finds VA is unable to meet the necessary burden to rebut the presumption of soundness because it cannot conclude that it is “undebatable” that there was no aggravation in service. The September 2020 VA examiner’s opinion otherwise concedes the Veteran’s current cervical spine disability, to include cervical fusion with radiculopathy in the upper extremities, is the result of the condition noted during active service. As a result, the Board finds service connection for a cervical spine disability is warranted. REASONS FOR REMAND Although a December 2020 VA Form 27-8020 (Report of General Information), which documents an informal conference between the Veteran’s representative and the post-remand decision review officer assigned to this case indicates the Veteran had no additional evidence to submit regarding his appeal at that time, the Veteran subsequently submitted a new VA Form 21-4142a (Authorization to Disclose Information to the Department of Veterans Affairs) in February 2021, requesting VA assistance in obtaining outstanding medical records from three private providers. VA’s duty to assist requires reasonable efforts to ensure these records have been obtained and associated with the claims file prior to its final adjudication of the Veteran’s appeal. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The Board notes the effective date of TDIU remains on appeal as an element of the Veteran’s increased rating claim for his service-connected lumbar spine disability despite the AOJ’s post-remand award of an earlier effective date of February 14, 2015 for TDIU because the date of the Veteran’s increased rating claim for his service-connected lumbar spine disability predates the currently assigned effective date for TDIU. See Harper v. Wilkie, 30 Vet. App. 356 (2018). The Board acknowledges this issue was discussed in the informal conference documented by the December 2020 VA Form 27-8020, during which the Veteran’s representative apparently stated he “agreed” with the AOJ’s decision regarding the effective date of TDIU; however, this notation in the December 2020 VA Form 27-8020 is insufficient to constitute a withdrawal of the issue from further appellate consideration. See 38 C.F.R. § 19.55. As a result, this issue must be remanded because it was not addressed in the AOJ’s post-remand supplemental statement of the case (SSOC), regardless of the potential relevance of the outstanding private treatment records referenced above. The matters are REMANDED for the following action: 1. Make reasonable efforts to assist the Veteran in obtaining any relevant outstanding private treatment records, to include, but not limited to, those referenced in his February 2021 VA Form 21-4142a. 2. Readjudicate the issues on appeal, to include the effective date of TDIU, and issue a SSOC, if any benefit sought on appeal remains denied. The SSOC must include the effective date of TDIU unless this issue is formally withdrawn by the Veteran or TDIU is granted for the entire appeal period based on the Veteran’s increased rating claim for his service-connected lumbar spine disability. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.