Citation Nr: 21023095 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 19-01 232 DATE: April 20, 2021 REMANDED Service connection for a neck disability is remanded. Service connection for a back condition is remanded. Service connection for bilateral knee is remanded. Service connection for a right hip is remanded. Service connection for migraine is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1986 to January 1991. He also has other periods of service in the Navy Reserves. He testified before the undersigned Veterans Law Judge at a February 2021 Board hearing. This matter is on appeal from a December 2016 rating decision. Service connection for a neck disability is remanded. The Veteran’s service connection claim for a neck disability is remanded for additional development. The Veteran asserted that he injured his neck in 1991 after working in food service during active duty. The laborious activities ultimately wore on his neck and spine. Additionally, at his February 2021 Board hearing, the Veteran indicated that he sustained a fall in 1988 while aboard the USS Forrestal. He was taken to the Corpsman where he was prescribed bedrest for a day and was later placed on light duty for a week. His service treatment records were silent for any injuries or complaints relating to his neck. His separation examination did not report any clinical abnormalities of the cervical spine; and the Veteran indicated in the corresponding report of medical history that he was in good health with no recurrent back pain, bone/joint/other deformity or arthritis. The Board notes that VA treatment records showed that the Veteran complained of neck pain after a motor vehicle accident in January 2013. In February 2013, the Veteran was counseled on cervical spine x-rays as he was concerned about denervation. Results revealed degenerative changes in the lower cervical spine. VA physical therapy notes in September 2016 noted that full range of motion in his cervical spine despite complaints of pain. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.159(c)(4) provides that an examination or opinion is necessary if the evidence of record: 1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of a disability; and 2) establishes that the Veteran suffered an event, injury, or disease in service; and 3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service, but 4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. The Court noted that the third prong of 38 C.F.R. § 3.159(c)(4) is a low threshold standard. In reviewing the claims file, the Board finds that the standards articulated in McLendon have been met such that a remand is necessary to afford the Veteran a VA examination to determine the current cervical spine disorder and its etiology. Back disability is remanded. The Veteran is currently seeking service connection for a back disability and the claim is remanded for additional development. In his April 2015 statement, the Veteran indicated that he injured his back after falling in 1988 while aboard the USS Forrestal. During his February 2021 Board hearing, he testified that after falling from the ladder, he was taken to the Corpsman where he was prescribed bedrest for at least a day. He was then placed on restricted duty for approximately a week. Service treatment records did not reflect any reports of injury to the back or complaints of chronic back pain. His separation examination did not document any spinal abnormalities; and the Veteran indicated in the corresponding report of medical history that he was in good health with no recurrent back pain, bone/joint/other deformity or arthritis. VA emergency department records in January 2014 indicated that the Veteran was seen for low back pain that had been persisting for one week with no specific injury. He told the VA physician that he has a history of back problems since 1980s. Having started a new job three weeks prior to the visit, he has been experiencing low back pain. His job requires physical activities such as lifting heavy objects and washing down trucks. However, VA treatment records in January 2014 noted a normal alignment of the back. The Board finds that the standards articulated in McLendon have been met such that a remand is necessary to afford the Veteran a VA examination to determine what back disability he currently has and whether it is related to his military service. Service connection for bilateral knee is remanded. The Veteran is currently seeking service connection for a bilateral knee condition. It is his contention that he has chronic bilateral knee pains that can be traced back to his in-service injury when he fell in 1988 aboard the USS Forrestal. At his February 2021 Board hearing, he explained that he slipped and fell while walking down a ladder, hurting his back and knees as he hit the deck. He was taken to the Corpsman where he was prescribed bedrest for a day. He was then placed on restricted duty for approximately a week. After returning to port, he continued to seek medical attention for chronic pains from the injury at a VAMC in Pensacola. His service treatment records did not reveal any documentation regarding knee pains or any knee injuries. At his separation examination, the Veteran did not report knee problems, nor did a medical examination show any abnormalities of the lower extremities; and the Veteran indicated in the corresponding report of medical history that he was in good health with no bone/joint/other deformity, arthritis or “trick” or locked knee. Based on his hearing testimony, the Veteran has been experiencing knee pains so severe that he has required several injection/shots to alleviate his pains. The current claims file does not contain a medical opinion regarding the etiology of his claimed bilateral knee condition. As the standards articulated in McLendon have been met such, a remand is necessary to obtain a nexus opinion between the Veteran’s bilateral knee condition and his military service. Service connection for right hip is remanded. The Veteran is currently seeking service connection for a hip condition. At his February 2021 Board hearing, he testified that he sustained an injury to his right hip after falling from a ladder in 1988, while serving aboard the USS Forrestal. He was taken immediately to the Corpsman for treatment. He was prescribed bedrest and was later placed on restricted duty. Service treatment records do not reflect any complaints of a hip problem. His separation examination did not reveal any abnormalities of his hips; and the Veteran indicated in the corresponding report of medical history that he was in good health with no bone/joint/other deformity or arthritis. Post service, VA treatment records do not reflect a current diagnosis of a hip condition. However, the Veteran testified that he has continued to experience chronic pain of his right hip. Therefore, under McLendon, the Board finds that a VA examination is warranted to ascertain what right hip disability the Veteran currently has and whether it is related to his in-service injury. Service connection for migraines is remanded. The Veteran’s service connection claim for migraines is remanded for additional development. At his February 2021 Board hearing, the Veteran indicated that his migraine headaches also originated from his in-service fall in 1988. On impact, he briefly lost consciousness and was taken to sickbay. Additionally, while on active duty, he was also exposed to various chemicals not limited to jet fuel and asbestos. He did not have chronic headaches before serving in the military. Since service, he has received treatment for his headaches and relies on daily medication to alleviate his symptoms. Service treatment records do not reflect any complaints of headaches or migraines. His separation examination did not reveal any abnormalities; and the Veteran indicated in the corresponding report of medical history that he was in good health with no head injury. The Veteran’s personnel records indicate his military occupational specialty was a mess management specialist. VA’s Adjudication Manual, which is not binding on the Board, DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) (The M21-1 Manual is binding on neither the agency nor tribunals ) but provides guidance on this issue, describes the probability of asbestos exposure by military occupational specialty, which list is not exclusive. M21-1, part IV, subpt. ii, ch. 1, sec. I.3.d. Mess management specialist is one of the occupations identified as minimal probability of exposure to asbestos. Id. VA treatment records in 2019 reported that he endorsed migraine headaches approximately twice a week, lasting between 1 to 2 hours and photophobia and phonophobia. The Veteran also reported to his VA physician that he had been experiencing light-headedness for the last 20 to 30 years, which worsens when standing. He also reported falling once or twice a year after passing out for unknown reasons. The Board finds that the standards articulated in McLendon have been met such that a VA examination is therefore warranted to determine whether the Veteran’s migraines is related to his military service. The matters are REMANDED for the following action: 1. Schedule the Veteran a new VA examination for his claimed cervical spine condition. The examiner is asked to determine the following: a. Identify any cervical spine disability by (i) diagnosis or (ii) functional impairment. b. For any cervical spine disability identified, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s cervical spine condition had onset in or is otherwise related to his military service? Why or why not? In making an etiology opinion, the examiner should consider the Veteran’s testimony that he sustained a fall from a ladder in 1988 while aboard the USS Forrestal. In responding to the above, the examiner is requested to address the following: c. What types of symptoms would have been caused by the in-service fall from a ladder about the USS Forrestal? d. Is there any medical reason to accept or reject the proposition that the Veteran’s in-service symptoms related to this fall could have led to any current neck disability or functional loss? 2. Schedule the Veteran a new VA examination for his claimed back condition. The examiner is asked to determine the following: a. Identify any back disability by (i) diagnosis or (ii) functional impairment. b. For each back disability identified, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s back condition had onset in or is otherwise related to his military service? Why or why not? In making an etiology opinion, the examiner should consider the Veteran’s testimony that he sustained a fall from a ladder in 1988 while aboard the USS Forrestal. In responding to the above, the examiner is requested to address the following: c. What types of symptoms would have been caused by the in-service fall from a ladder about the USS Forrestal? d. Is there any medical reason to accept or reject the proposition that the Veteran’s in-service symptoms related to this fall could have led to any current back disability or functional loss? 3. Schedule the Veteran a new VA examination for his bilateral knee condition. The examiner is asked to determine the following: a. Identify any knee disability by (i) diagnosis or (ii) functional impairment. b. For each knee disability, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s bilateral knee condition had onset in or is otherwise related to his military service? Why or why not? In making an etiology opinion, the examiner should consider the Veteran’s testimony that he sustained a fall from a ladder in 1988 while aboard the USS Forrestal. In responding to the above, the examiner is requested to address the following: c. What types of symptoms would have been caused by the in-service fall from a ladder about the USS Forrestal? Is there any medical reason to accept or reject the proposition that the Veteran’s in-service symptoms related to this fall could have led to any current knee disability or functional loss? 4. Schedule the Veteran a new VA examination for his claimed right hip condition. The examiner is asked to determine the following: a. Identify any right hip disability by (i) diagnosis or (ii) functional impairment. b. For each right hip disability, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s right hip condition had onset in or is otherwise related to his military service? Why or why not? In making an etiology opinion, the examiner should consider the Veteran’s testimony that he sustained a fall from a ladder in 1988 while aboard the USS Forrestal. In responding to the above, the examiner is requested to address the following: c. What types of symptoms would have been caused by the in-service fall from a ladder about the USS Forrestal? d. Is there any medical reason to accept or reject the proposition that the Veteran’s in-service symptoms related to this fall could have led to any current right hip disability or functional loss? 5. Schedule the Veteran a new VA examination for his migraines. The examiner is asked to determine the following: a. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s migraines had onset in or is otherwise related to his military service? Why or why not? In making an etiology opinion, the examiner should consider the Veteran’s testimony that he sustained a fall from a ladder in 1988 while aboard the USS Forrestal. The examiner should also address the Veteran’s contentions that his migraines resulted from exposure to various chemicals during service, including jet fuel and asbestos. In responding to the above, the examiner is requested to address the following: b. What types of symptoms would have been caused by the in-service fall from a ladder about the USS Forrestal? c. Is there any medical reason to accept or reject the proposition that the Veteran’s in-service symptoms related to this fall could have led to the Veteran’s current migraines? d. Based on the Veteran’s military occupational specialty of mess management specialist, is there any reason to accept or reject the Veteran’s contentions that his migraines were due to exposure to jet fuel or asbestos? A detailed explanation is required to support all opinions. A complete and thorough rationale must be provided for any opinions expressed with consideration given to all evidence of record. If the examiner is unable to offer the opinion requested, he or she must explain in detail why that is the case. If the inability to opine is due to the fact that the examiner lacks the expertise to render such an opinion, or due to the fact that some additional testing or information is needed, and possibly available, that would permit such an opinion, the examiner should clearly and specifically state so, and, if applicable, the examiner should also state precisely what additional testing or information is needed in order to render the requested opinion. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Yeh, 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.