Citation Nr: 21011156 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-42 852 DATE: March 1, 2021 REMANDED Entitlement to service connection for traumatic brain injury (TBI) residuals, to include headaches, is remanded. Entitlement to service connection for cervical spondylosis with myelopathy (cervical spine disability) is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1965 to April 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision from the Department of Veterans Affairs Regional Office (RO). In that decision, the RO denied service connection for cervical spine disability. This case also comes before the Board from an April 2015 rating decision in which the RO denied service connection for both cervical spine disability and TBI. The Veteran did not appeal the December 2014 decision but submitted a March 2015 Supplemental Claim (VA Form 21-526b) along with relevant private treatment records within one year of its issuance. As new and material evidence was received within a year of the December 2014 rating decision, it did not become final and the claim of service connection for cervical spine disability remained pending. 38 C.F.R. § 3.156(b). In May 2015 the Veteran filed a notice of disagreement (NOD) and in October 2015 the RO issued a statement of the case (SOC). In November 2015 the Veteran filed a substantive appeal (via VA Form 9). In August 2018 the Board remanded the Veteran’s claim for additional development. Although that development was conducted, upon further review another remand is warranted for medical opinions as discussed below. Entitlement to service connection TBI, to include headaches, is remanded. The Veteran has not been afforded a VA examination for his claimed TBI or cervical spine disability. VA is required to provide an examination or obtain a medical opinion in a claim for service connection when: (1) the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability; (2) the record indicates that the disability or symptoms of disability may be associated with active service; and (3) the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. A claimant's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. Id. at 83. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. There must, however, be sufficient evidence of such a relationship to trigger VA's duty to provide an examination or obtain a medical opinion. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). A conclusory generalized lay statement suggesting a nexus between a current disability and service is not sufficient, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Id. at 1278-1279. In an April 2019 Statement in Support of Claim (VA Form 21-4138) the Veteran stated that he fell and hit his head on a hatch while stationed aboard the USS Recovery (ARS 43). On the May 2015 NOD the Veteran stated that he began having headaches within 48 hours of his head injury and that, though currently infrequent, his headaches have persisted since service. The Board has expanded the matter on appeal as a claim of service connection for TBI to include headaches. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). As the Veteran stated he has recurrent headaches, there is competent evidence of a current disability or persistent or recurrent symptoms of a disability. Although the Veteran’s service treatment records (STRs) are negative of complaints, treatment, or findings of a head injury, a May 1967 STR indicates that the Veteran experienced headaches. Thus, the in-service injury or disease requirement is met. Given the "low threshold" for an examination and medical opinion as announced in McLendon, there is evidence of persistent or recurrent symptoms of a TBI that may be associated with service. As there is evidence that the Veteran has symptoms or disability that may be associated with an in-service injury, a VA examination or opinion is warranted on this issue and a remand is warranted. Entitlement to service connection cervical spine disability is remanded. A January 2014 note indicates that the Veteran was diagnosed with multilevel spondylitic changes with reversal of normal cervical lordosis and compression of the spinal cord. A June 2013 private treatment note indicates that the Veteran is diagnosed with cervical spondylosis with myelopathy. Thus, a current cervical spine disability has been demonstrated. In an April 2019 VA Form 21-4138 the Veteran stated that he sustained a neck injury when he hit his head in service. A February 2013 private physician noted that the Veteran fell in November 2012 and his neck symptoms have progressed since this injury. The February 2013 private physician also noted cord edema suggestive of a previous spinal cord injury or ongoing compression. In a June 2014 statement, the Veteran stated his private physician told him that his neck surgery performed on February 6, 2013 was not caused by the most recent fall, but rather, a previous injury. The Veteran is competent to report what his physician told him regarding the diagnosis and etiology of his current cervical spine disability. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report a contemporaneous medical diagnosis). Moreover, a January 2013 private treatment note indicates that the Veteran had an MRI performed on his cervical spine as early as March 3, 2008. Thus, there is medical evidence suggesting that the Veteran’s cervical spine disability may have come from a previous injury, possibly the head injury the Veteran sustained while in service. Given the Veteran's current diagnosis of a cervical spine disability as well as the evidence in the record indicating that this disability may have come from an old injury, there is evidence that this disability may be associated with service. McLendon, 20 Vet. App. at 83. Thus, a remand is necessary for a VA examination or opinion on this question. The matters are REMANDED for the following action: 1. Request an opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s headaches and related symptoms. If an examination is required, one should be conducted, to include via telehealth if appropriate. The clinician should indicate whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s headaches or any related symptoms are due to the Veteran's TBI, to include headaches, had its onset during service, or is otherwise related to service. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. 2. Request an opinion from an appropriate clinician regarding the Veteran’s cervical spine disability. If an examination is required, one should be conducted, to include via telehealth if appropriate. The clinician should indicate whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s cervical spine disability is related to service, to include the reported in-service head injury. The clinician is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.