Citation Nr: 21024463 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-26 550 DATE: April 22, 2021 ORDER Entitlement to service connection for a back disability is denied. REMANDED Entitlement to service connection for a seizure disorder is remanded. Entitlement to service connection for a headache condition, to include as due to a seizure disorder is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence is against finding that any back disability began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1970 to January 1971. The claims were most recently before the Board in June 2020 when the appeal was remanded for additional development. The Board is satisfied that there has been substantial compliance with the June 2020 remand directives pertaining to the back disability claim and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a back disability Establishing service connection generally requires medical or, in certain circumstances, lay 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 present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of chronic low back pain, status post bilateral laminectomy at L5 with questionable localized bony fusion at L5-S1, the preponderance of the evidence is against finding that his back disability began during active service, or are otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records (STRs) are silent for any complaints, treatment or diagnosis of a musculoskeletal back condition. The STRs show that the Veteran sought treatment for seizures. There are no instances of any injuries to the back, to include falls during service. There is also no reason to suspect that the Veteran’s STRs are incomplete. The Veteran was medically separated from service for his seizure disorder. The Veteran testified at a March 2017 Board hearing, that he injured his back during service when he fell during a seizure but “they did not check his back at the time.” The Board finds that contention is not credible due to the inconsistency with other evidence in the record. The Veteran’s STRs include his reports of treatment and a neurological consult for his seizures, but no findings or complaints of back pain or any other injury incurred following a fall. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Veteran further testified that he sought treatment for his back at the Galveston, Texas VA clinic in 1998. However, those records were determined by the Agency of Original Jurisdiction (AOJ) to be unavailable. While the Veteran asserts that his back disability is related to an incident in-service injury, event, or disease, the Board finds that the preponderance of the evidence weighs against findings that in-service injury, event, or disease occurred. Thus, service connection for a back or neck disability is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The benefit of the doubt doctrine is not for application. REASONS FOR REMAND 1. Entitlement to service connection for a seizure disorder is remanded. The claim must be remanded again because the November 2020 VA examination is inadequate. The November 2020 VA examiner impermissibly relied upon a lack of records in providing a negative opinion. Furthermore, although the VA examiner said that stopping the use of seizure medication may increase the frequency of seizures, the examiner did not discuss how that may have applied to the facts of this Veteran’s specific case. The examiner also did not consider the impact, if any, of the possible stress the Veteran may have endured during boot camp. 2. Entitlement to service connection for a headache condition, to include as due to a seizure disorder is remanded. 3. Entitlement to TDIU is remanded. The issues are inextricably intertwined with the issue of service connection for headache claim being remanded. The Board must defer adjudication pending that development. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the likely etiology of the seizure disorder. Copies of all pertinent records must be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) one should be scheduled. After reviewing the claims file, the examiner is asked to answer the following questions: (a) Does the evidence clearly and unmistakably show (i.e., it is undebatable) that the seizure disorder was not aggravated by service or that any increase in disability was due to the natural progression of the condition? Please identify such evidence with specificity. (b) The examiner is asked to clarify what, if any, significance the reports that the Veteran stopped taking his medication on his own has on the issue of aggravation beyond the natural progression of his seizure disorder. The implications of that must address the specific circumstances of this Veteran, not to seizure patients in general. The examiner should also consider the significance, if any, on the Veteran’s reported stress during boot camp. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.