Citation Nr: 21030965 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 14-13 906 DATE: May 20, 2021 ORDER The Motion to Vacate the Board of Veterans' Appeals February 2018 decision on the issue of entitlement to service connection for a lumbar spine disability is granted. The Motion to Vacate the Board of Veterans' Appeals February 2018 decision on the issue of entitlement to service connection for a cervical spine disability is granted. The Motion to Vacate the Board of Veterans' Appeals February 2018 decision on the issue of entitlement to service connection for residuals of a fractured skull is granted. The Motion to Vacate the Board of Veterans' Appeals February 2018 decision on the issue of entitlement to service connection for traumatic brain injury (TBI) is granted. The Motion to Vacate the Board of Veterans' Appeals February 2018 decision on the issue of entitlement to service connection for headaches is granted. The Motion to Vacate the Board of Veterans' Appeals February 2018 decision on the issue of entitlement to service connection for vertigo is granted. The Motion to Vacate the Board of Veterans' Appeals February 2018 decision on the issue of entitlement to service connection for a neurological disability of the bilateral lower extremities, to include pain and muscle spasms, is granted. The Motion to Vacate the Board of Veterans' Appeals February 2018 decision on the issue of entitlement to service connection for left upper extremity neuropathy is granted. The Motion to Vacate the Board of Veterans' Appeals February 2018 decision on the issue of entitlement to service connection for right upper extremity neuropathy is granted. The Motion to Vacate the Board of Veterans' Appeals February 2018 decision on the issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is granted. REMANDED The claim of entitlement to service connection for a lumbar spine disability is remanded. The claim of entitlement to service connection for a cervical spine disability is remanded. The claim of entitlement to service connection for residuals of a fractured skull is remanded. The claim of entitlement to service connection for TBI is remanded. The claim of entitlement to service connection for headaches is remanded. The claim of entitlement to service connection for vertigo is remanded. The claim of entitlement to service connection for a neurological disability of the bilateral lower extremities, to include pain and muscle spasms, is remanded. The claim of entitlement to service connection for left upper extremity neuropathy is remanded. The claim of entitlement to service connection for right upper extremity neuropathy is remanded. The claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. VACATE The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on its own motion, when a claimant has been denied due process of law or has been granted benefits based on false or fraudulent evidence. 38 C.F.R. § 20.1000. For the reasons discussed below, the issues denied in the February 2018 Board decision are vacated. In the present case, the Board denied the above listed claims due to a negative line of duty determination in the Veteran's personnel records. Following a review of the claims file, the Board agrees with the Veteran's attorney that it misread the final line of duty determination. While the Survey Officer in the April 1977 investigation found that the Veteran's fall was not in the line of duty, the Reviewing Authority overruled that determination in June 1977, finding that the incident was in the line of duty as the Veteran did not intentionally injure himself, and he did not have a complete disregard for his personal safety. Given the above, the portion of the February 2018 Board decision denying the claims of entitlement to service connection for a lumbar spine disability, cervical spine disability, residuals of a fractured skull, TBI, headaches, vertigo, a neurological disability of the bilateral lower extremities, bilateral upper extremity neuropathy, and an acquired psychiatric disorder is vacated. REASONS FOR REMAND Although the Board regrets the additional delay, remand is necessary in order to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Initially, the Board notes that the Veteran's service treatment records appear incomplete. Following the December 1976 fall, the Veteran reports that he was admitted to Nuremberg Army Hospital for approximately one month of recovery and rehabilitation. He was subsequently discharged from the hospital and placed on light duty status until physically ready to return to full duty. The service treatment records presently associated with the claims file do not document this prolonged hospitalization. There are only limited clinical records from this injury. Thus, remand is necessary to ensure all of the Veteran's service treatment records, to include those related to his recovery, have been sought prior to readjudication. Additionally, the Veteran has not been afforded VA examinations pertaining to these disabilities on appeal. Examinations were initially not scheduled as these injuries were purportedly due to the December 1976 fall, which was deemed not within the line of the duty. VA and private treatment records reference the fall in conjunction with multiple physical ailments, but nexus opinions have not been obtained to determine the etiologies of the disabilities presently on appeal. Accordingly, remand is necessary in order to afford VA examinations on these issues. The matters are REMANDED for the following action: 1. Attempt to obtain, through all indicated and appropriate sources, the Veteran's complete service treatment records, to include those from Nuremberg Army Hospital around December 1976 to January 1977. All efforts to obtain these records should be documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This determination should be documented in the claims file and the Veteran must be notified. 2. Following completion of the foregoing, schedule VA examinations to assess the etiologies of the claimed lumbar spine disability, cervical spine disability, residuals of a fractured skull, TBI, headaches, vertigo, a neurological disability of the bilateral lower extremities, neuropathy of the bilateral upper extremities, and an acquired psychiatric disorder. A complete copy of the claims file should be made available to the examiners. The examiners should consider the Veteran's lay reports of symptoms related to each disability. (a.) Following a thorough review of the medical and lay evidence of record, the examiners should identify any and all present diagnoses related to the lumbar spine, cervical spine, residuals of a fractured skull, TBI, headaches, vertigo, a neurological disability of the bilateral lower extremities, bilateral upper extremity neuropathy, and a claimed acquired psychiatric disorder. (b.) Then, for each identified disability, opine as to whether the disability is at least as likely as not (a 50 percent probability or greater) incurred in or otherwise related to the Veteran's active duty service, to include the December 1976 fall. The examination reports should specifically state that a review of the record was conducted. The examiners should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiners should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 3. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.