Citation Nr: 21023082 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-24 752 DATE: April 20, 2021 ORDER Entitlement to service connection for a low back disorder is denied. REMANDED Entitlement to service connection for migraine headaches, to include as secondary to service-connected traumatic brain injury (TBI), is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDING OF FACT The Veteran’s low back disorder is not etiologically related to the Veteran’s active military service and was not present to a compensable degree within one year of separation from active service or noted to be chronic during service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1984 to April 1990 and from January 1991 to March 1991. These matters originally came before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in January 2019, at which time the Board denied service connection for each issue on appeal. The Veteran appealed the January 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). Counsel for the appellant and the Secretary of VA (the parties) filed a Joint Motion for Remand (JMR). An Order of the Court dated August 29, 2019 granted the motion and remanded the case to the Board. The JMR noted, in part, that the Board erred in providing an inadequate statement of reasons and bases given its heightened duty to explain its findings and conclusions and carefully consider the benefit of the doubt rule when a veteran’s service records are lost or destroyed, as is the case here. In March 2020, the Board remanded the claims for further evidentiary development. The issues of entitlement to service connection for TBI and for an acquired psychiatric disability were granted in a September 2020 VA rating decision, which represents a full grant of the benefits sought so they are no longer on appeal before the Board. The remaining issues on appeal have been returned to the Board for appellate review. There was substantial compliance with the March 2020 remand directives for the remaining issue on appeal discussed below on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Veteran was provided a VA Disability Benefits Questionnaire (DBQ) examination and medical opinion for low back disorder in September 2020 and the issue was readjudicated in a September 2020 supplemental statement of the case (SSOC). The Veteran asserts that he sought treatment for a low back disorder, a left hip disorder, a left knee disorder, and a head injury at Fort Polk in Louisiana, and while stationed at Camp Liberty Bell in Korea for injuries incurred in service. In an August 2017 letter, the Veteran was informed that any such records cannot be located, and that further attempts to obtain such records would be futile. The Veteran was invited to submit additional evidence in support of his claim. The Veteran’s representative has stated that the Veteran has waived any further attempts to obtain such records. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist with regards to the issues discussed below on the merits. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to service connection for a low back disorder Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303 (b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran contends that his low back disorder was caused by in-service falls, to specifically include a fall on the side of a mountain during a training exercise while stationed in Korea. Initially, the Board notes that the Veteran has been diagnosed with degenerative arthritis of the spine and lumbar spondylosis. See September 2020 VA examination report. Accordingly, the first element of service connection has been met. As noted above, the Veteran relates his low back disorder to in-service injuries, to specifically include a fall on the side of a mountain during a training exercise while stationed in Korea. The Veteran contends that while out in the field in Korea, his left knee and hip gave out and he fell down a cliff from a height of approximately 50 yards and had severe back and buttock pain as a result. Additionally, as a result of the fall, the Veteran stated that he was not able to stand due to pain and required medical evacuation and was placed on bed rest for two weeks. See September 2020 VA examination report. Unfortunately, as previously noted, service treatment records are unavailable for the period of the Veteran’s active duty service in Korea. Nevertheless, even if the Veteran’s in-service injury is conceded, service connection is still not warranted on a direct basis as a nexus has not been established. The Veteran’s service personnel records indicate that he was separated “not by reason of physical disability,” but due to his failure to meet the Army’s weight control standards. The Veteran did not request a separation medical examination; and as such, a final physical evaluation is not available to assist in this claim. However, available separation documents further indicate that the Veteran’s service treatment records were reviewed at the time of his separation and there was no evidence of any medical problems, that were “currently under treatment or previously evaluated.” Lastly, the service personnel records indicate that prior to the Veteran’s separation he was placed on a ten-month program to meet the weight control standards, which involved repeated physical performance evaluations comprised of push-ups, sit-ups and timed two-mile runs. The service personnel records document that the Veteran was ultimately separated for not the requirements and without further opportunity for improvement due to a “lack of interest and motivation.” There is no evidence that the Veteran was unable to, or impaired in his ability to complete these tests due to an on-going back disability. Following the March 2020 Board remand, the Veteran was afforded a VA examination in September 2020. The VA examiner concluded that the Veteran’s low back disorder is less likely than not incurred in or caused by his in-service falls, as there is no evidence of a sustained back condition in-service or evidence of chronic residuals in the time period immediately following service. Additionally, the examiner considered the type of injuries that the Veteran described as having sustained in-service, such as multiple falling accidents. While service connection is possible for disabilities diagnosed after service, the examiner found it etiologically relevant that the earliest finding of a degenerative back disorder is in 2002, over ten years after military separation, when providing a negative nexus opinion. Additionally, while post-service treatment records document treatment, including pain management and therapy for chronic low back pain, none of these records provide a nexus between the Veteran’s low back disability and his active service. To the extent that the Veteran asserts his back disability incurred in active duty, the Board finds that he is competent to report experiencing back pain, but not competent to determine the etiology of such a disability, as it is a complex medical question beyond the ability of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, there is no evidence that the Veteran’s low back disability manifested to a compensable degree within a year of service to allow for presumptive service connection for a chronic disease. Nor is there any competent evidence of an in-service manifestation of a low back disability to allow for service connection based on continuity of symptomatology. See Walker, 708 F.3d at 1340. Instead, the first evidence of degenerative arthritis is over ten years after active duty service. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and therefore, must be denied. In arriving at this decision, the Board has considered the applicability of the benefit-of-the-doubt rule; however, as there is not an approximate balance of evidence, that rule is not applicable in this case. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND Following the March 2020 Board remand, the Veteran was afforded new VA examinations in September 2020. Although the Board regrets additional delay, another remand is necessary to obtain an addendum opinion. 1. Entitlement to service connection for migraine headaches, to include as secondary to service-connected TBI The Veteran contends that his headache condition is the result of an in-service injury, to include as a result of his service-connected TBI. In September 2020, the Veteran was provided a VA DBQ examination for headaches and medical opinion on a secondary (causation only) basis. In light of the Veteran’s claim on appeal, including a secondary theory of entitlement to his service-connected TBI, a medical opinion regarding whether the Veteran’s diagnosis of headaches is aggravated by his service-connected TBI should have also been provided. 2. Entitlement to service connection for a left hip disability 3. Entitlement to service connection for a left knee disability The Veteran contends that his left knee disorder was caused by an in-service fall on the side of a mountain during a training exercise while stationed in Korea. Additionally, the Veteran contends that his hip disability is the result of jumping out of a patrol vehicle while on patrol alert and landing on his side. Upon review, the Board finds that the September 2020 VA medical opinion is inadequate. The examiner provided negative nexus opinions in regard to the Veteran’s left knee and left hip service connection claims. The examiner’s rationale was that there is no evidence that the Veteran sustained such injuries in-service or evidence that such falls occurred during service. The Board finds such rationale inadequate as it essentially relies solely on the absence of documentary evidence as a rationale for the negative nexus opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Furthermore, the examiner also does not appear to have considered the Veteran’s statements as to his in-service injuries, of which he is competent to report, especially due to the unavailability of the Veteran’s service treatment records. See Washington v. Nicholson, 19 Vet. App. 362 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, a remand is required to obtain an addendum opinion. These matters are REMANDED for the following actions: 1. Obtain an addendum opinion addressing the etiology of the Veteran’s headaches, left hip, and left knee disabilities. The examiner must review the entire claims file, to include a copy of this remand. The examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s headache disorder was aggravated beyond its natural progression by his service-connected TBI. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left hip disability was caused by, or is otherwise related to active service, to include the Veteran’s contended injuries. (c.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s left knee disability, was caused by, or is otherwise related to active service, to include the Veteran’s contended injuries. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the agency of original jurisdiction (AOJ) must implement corrective procedures. (Continued on the next page)   3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. B. Smith, 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.