Citation Nr: 21025809 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 14-08 636 DATE: April 29, 2021 REMANDED Service connection for a neck condition.   REASONS FOR REMAND The Veteran served on active duty from March 1969 to December 1970. The case is on appeal from a September 2012 rating decision. In October 2015, the Board reopened and remanded this matter for further development. The Board also remanded two separate claims of service connection for a heart disability and a left shoulder disability. Upon remand, in August 2020 and March 2021 rating decision, the RO granted service connection for ischemic heart disease and a left shoulder disability. Hence, it is only the neck claim that remains on appeal. Service connection for a neck condition. The Veteran maintains that he has a neck condition due to a fall down stairs during service. See July 2011 statement. The Veteran’s service treatment records (STRs) show treatment in July 1970 after falling down a ladder 3 months prior with subsequent complaints of left-sided headaches and right-sided auditory acuity reduced. He was then admitted for observation in August 1970 after being found with a contusion with slight abrasion on the left side of the head and was acting very unusually, wandering around the ship talking to himself as if he were in a trance. The Board previously remanded the claim in October 2015 to obtain a VA examination and opinion addressing whether a current neck condition is related to this event in service. Upon remand, a VA examination was conducted in November 2017. The VA examiner concluded that the Veteran’s current diagnosis osteoarthritis, cervical spine, was less likely than not related to service. The examiner explained as follows. First, there was no available objective medical evidence indicating chronicity of a neck condition throughout service or after discharge from service until a VA intake visit note in February 2006. At that time, the Veteran had worked approximately 34 years as an underground coal miner. Hence, the likely etiology of the Veteran’s arthritis of cervical spine was more likely related to his long-term history as an underground coal miner and generalized wear and tear over time. This opinion is insufficient for three reasons. First, this VA examiner impermissibly relied on an absence of documented evidence during service without explaining why, as a medical matter, the Veteran would have sought treatment or complained of the condition during service or after service, or why an absence of documented treatment or symptoms (as opposed to undocumented symptoms) was otherwise medically significant. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). Second and relatedly, contrary to the November 2017 VA examiner’s rationale, there is not an absence of evidence. The Veteran extensively informed the VA examiner of his in-service injury and ongoing symptoms since then. The Veteran’s statement is competent evidence of his symptoms during and since service, and, at present, there is no reason to doubt his credibility. The VA examiner did not consider the Veteran’s statement that he did have ongoing symptoms during and since service. The VA examiner’s failure to consider the Veteran’s testimonial statements, which were relevant evidence that he first noticed symptoms proximate in time to service, when formulating the opinion renders that opinion inadequate. See McKinney, 28 Vet. App. at 30. Finally, the VA examiner’s ultimate opinion was that the condition was due to post-service work and wear-and-tear. To this extent, the VA examiner’s opinion does not explain why the injury during service did not constitute wear-and-tear contributing, even if only in part, to the eventual neck condition. Stated differently, it is not clear from the VA examiner’s opinion why it was only the wear and tear occurring after service that resulted in the condition. Significantly, the Veteran previously claimed service connection for a left shoulder condition. In March 2021. a VA examiner opined that his left shoulder degenerative arthritis was at least as likely as not due to the same injury. The VA examiner explained that “[i]t is medically known degenerative arthritis can be caused from wear and tear and injuries such as those the [V]eteran experienced while in service.” This opinion undermines the November 2017 VA examiner’s rationale as the examiner was referring to the same in-service injury. For these reasons, a new VA opinion is warranted on remand. The matters are REMANDED for the following action: Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed neck condition. The examiner is asked to address whether the current neck condition is at least as likely as not related to an in-service injury, event, or disease, including the fall from a ladder. If the examiner determines that the condition is due to post-service work and/or wear-and-tear, the examiner must explain why the in-service injury did not also contribute, at least in part, to the eventual development of the condition. In doing so, the examiner should consider the statement from a March 2021 VA examiner (regarding the left shoulder) that “[i]t is medically known degenerative arthritis can be caused from wear and tear and injuries such as those the [V]eteran experienced while in service.” In answering this question, the examiner is also asked to consider the statements from the Veteran indicating that symptoms started during service. The examiner is asked to explain why his statements make it more or less likely that a current neck condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran’s recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.