Citation Nr: 21025403 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-37 047 DATE: April 28, 2021 ORDER Entitlement to service connection for a low back disability is granted. REMANDED Entitlement to service connection for migraines is remanded. FINDING OF FACT Resolving the benefit of the doubt in favor of the Veteran, a low back disability is shown to be etiologically related to active service. CONCLUSION OF LAW The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from August 1967 to March 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal of an April 2011 rating decision. The Veteran testified at two Board hearings before two different Veterans Law Judges. He testified before Veterans Law Judge (VLJ) Seesel in July 2017 and before VLJ Deichert in October 2020. Transcripts of both hearings are in the Veteran’s file. In March 2018, the claims were remanded by Judge Seesel for further development of the issues. In December 2020, the Veteran was offered the opportunity to testify at another hearing before a third VLJ in accordance with Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Veteran did not respond to that letter. Accordingly, the Board finds that the Veteran has waived his right to a third hearing. As two different judges heard testimony concerning the issues on appeal, a panel of three judges including the two who presided over the hearings must decide the issues. 38 U.S.C. §§ 7102(a), 7107(c). Accordingly, this decision is being rendered by a panel of three judges. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 1. Low Back Disability The Veteran contends that a low back disability is due to his work as a roofer during service. He reports that he had to carry heavy roofing materials up and down ladders which placed a heavy strain on his lumbar spine. He states that his back pain began during service. In a November 2011 VA clinic note, the Veteran reported having chronic pain for forty years. Imaging reports from November 2011 and November 2014 show that the Veteran suffers from discogenic degenerative disease, disc space narrowing with associated facet arthrosis, spondylotic changes and other abnormalities of the lumbar spine. On VA examination in October 2012, the examiner opined that it was less likely than not that the Veteran’s low back condition was incurred in or caused by an event during service. The examiner noted that the Veteran had a remote history of lumbar strain in 1967 which had resolved and that his current back condition was a more recent strain. In a June 2014 report, a VA examiner opined that it was at least as likely that his back condition was due to the progressive and cumulative spinal stresses he incurred through the years during his civilian heavy labor jobs, such as construction and roofing with the attendant heavy lifting and climbing ladders involved. In a September 2018 report, a private chiropractor opined that the Veteran’s ongoing problems with his low back were more likely than not caused by his active service. It was noted that the Veteran was assigned to a roofing repair crew working prolonged hours that entailed bending over to remove old roofing by shoveling it off then reinstalling new roofing shingles for at least eight to ten hours a day. The opinion was based on the chiropractor’s 23 years of experience and a review of the Veteran’s medical history. In considering the evidence of record, the Board concludes that the Veteran is entitled to service connection for a low back disability. There is a positive nexus opinion from a qualified private chiropractor that the Veteran’s current low back disability was incurred during active duty service. The private chiropractor reported reviewing the Veteran’s entire medical history in providing the opinion. The Board notes that the VA examiners provided negative nexus opinions with respect to the low back; however, neither examiner accurately considered the Veteran’s competent reports on the onset of back pain during service as result of his duties as a roofer and his continuous complaints thereafter. Thus, the VA examiners opinions are not afforded much probative value. Therefore, the Board concludes that the evidence of record is at least in relative equipoise as to whether the Veteran’s low back disability is etiologically related to active service. Resolving all doubt in favor of the Veteran, the Board will grant his claim for service connection. REASONS FOR REMAND 1. Entitlement to service connection for migraines is remanded. Further remand is necessary to adjudicate the Veteran’s claim for service connection for a migraine disability. The Board remanded the claim in March 2018 in order to obtain a VA opinion that would determine whether the Veteran’s headache disability was a pre-existing condition, and if so, whether it was aggravated beyond its natural progression by an in-service, event, or illness. In an April 2019 report, the VA examiner determined that the Veteran’s headaches, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness. The Board finds this opinion is inadequate. While the examiner determined that the Veteran had headaches prior to service, the examiner did not correctly address whether the Veteran had a preexisting disability that was aggravated by the Veteran’s service. Because no headache disability was not shown on the entrance examination, the Veteran is entitled to the presumption of soundness. That presumption, however, can be rebutted. The examiner’s opinion did not adequately address these questions. As such the issue, must be remanded in order to obtain a VA medical opinion on this point. The matters are REMANDED for the following action: Forward the claims file to an appropriate examiner; only schedule an examination in this matter if deemed necessary by the examiner to answer the Board’s questions. Upon review of the claims file, the examiner is asked to respond to the following: (a) Did the Veteran have headache disability of any kind that clearly and unmistakably preexisted his active service? If so, please discuss the evidence showing this standard is met. (b) If so, is it clear and unmistakable that the Veteran’s headache disability was NOT aggravated during his service? (c) If the Veteran’s headache disability was aggravated during his service, was the increase in severity clearly and unmistakably due to the natural progress of the disease? (d) If it is not clear and unmistakable that the Veteran’s headache disability preexisted his service, then is it at least as likely as not that the Veteran’s headache disability began during or was caused by his service? The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. If further examination is required in order to provide the above-requested opinions, such should be provided. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals H. SEESEL Veterans Law Judge Board of Veterans’ Appeals JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Henriquez, 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.