Citation Nr: 22040143 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 18-20 079 DATE: July 13, 2022 REMANDED Entitlement to service connection for a back disability, to include degenerative arthritis, is remanded. Entitlement to service connection for a neck disability, to include degenerative arthritis, is remanded. Entitlement to service connection for left knee strain is remanded. Entitlement to service connection for left shoulder strain is remanded. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to service connection for a headache disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1980 to November 1984 and from January 1992 to May 1992, with additional Reserve service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge; a transcript is of record. The Board notes the Agency of Original Jurisdiction (AOJ) previously denied service connection for a headache disability in September 2000 and August 2001. The Veteran did not file a timely notice of disagreement or any pertinent or previously unconsidered relevant evidence within the one-year appeal period. Nonetheless, a review of the record shows that additional, relevant military personnel and service medical treatment records were associated with the file in April 2015 and January 2018. Accordingly, pursuant to 38 C.F.R. § 3.156(c), the Board will reconsider the claim de novo. Additionally, in his March 2018 VA Form 9, the Veteran reported that a 1991 motor vehicle accident (MVA) caused all of the disabilities on appeal, and caused his inability to hold gainful employment. The issue of a total disability rating based on individual unemployability (TDIU) has therefore been raised, but has not been adjudicated by the AOJ. Although the U.S. Court of Appeals for Veterans Claims (Court) has held "that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation," Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), here, the issues before the Board pertain to the Veteran's entitlement to service connection. Therefore, as the issue of an increased disability rating is not before the Board in this appeal, the Board concludes that it does not have jurisdiction over the issue of entitlement to TDIU at this time and referral, not remand, is the appropriate remedy here. See 38 C.F.R. § 20.904(b). Accordingly, the issue of entitlement to TDIU is referred to the AOJ for appropriate action. Finally, relevant to all of the issues on appeal, the Board notes that the MVA upon which the Veteran bases his claims, occurred in February 1991, not during a period of active duty service. Under 38 C.F.R. § 3.6(e), an injury which is sustained as a result of travel to or from training duty, whether active duty for training or inactive duty for training, is entitled to coverage as a service-connected injury. The record shows that the Veteran was driving home from local annual training when the February 1991 MVA occurred, and a line of duty determination in his favor is of record. Thus, if it can be shown that the claimed disabilities are linked to the MVA, then service connection for these disabilities would be warranted. 1. Entitlement to service connection a back disability, to include degenerative arthritis 2. Entitlement to service connection for a neck disability, to include degenerative arthritis 3. Entitlement to service connection for left knee strain 4. Entitlement to service connection for left shoulder strain 5. Entitlement to service connection for a TBI 6. Entitlement to service connection for a headache disability While the Board regrets the delay, a remand is needed for additional development. This is necessary to ensure that the Veteran is afforded every possible consideration and that there is a complete record upon which to decide his appeal. During the December 2021 Board hearing, the Veteran indicated he may receive disability benefits from the Social Security Administration( SSA). On remand, the AOJ should attempt to obtain outstanding SSA disability records. Further, the Board notes that the February 1991 Line of Duty Determination indicates the Veteran was taken to Mercy Hospital by ambulance for his injuries, and that he was treated by Dr. B.B. at the Miller Orthopaedic Clinic. A review of the record shows that there may be relevant, outstanding medical treatment records from Mercy Hospital and from Dr. B.B. On remand, the AOJ should attempt to obtain any outstanding medical reports in connection with the Veteran's February 1991 MVA. Additionally, VA medical opinions addressing the nature and etiology of the Veteran's back, neck, left knee, and left shoulder disabilities were issued in October and November 2017. However, the Board finds that the October and November 2017 VA medical opinions are inadequate for adjudicative purposes. The opinions are essentially based on a lack of in-service medical evidence showing in-service and post-service chronic pathology and management of back, neck, left knee, and left shoulder disabilities. The examiner also failed to address the Veteran's statements of experiencing pain since the February 1991 MVA. See also October 1984 Report of Medical History. Lack of evidence cannot be treated as substantive negative evidence. In other words, reliance on the lack of medical evidence, especially without consideration of lay statements, is an inadequate rationale. The Court has held that the mere absence of evidence does not equate to unfavorable evidence. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence); see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). Once VA undertakes the effort to provide an examination when developing a claim for service connection, it must provide an adequate one. See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007), citing Barr v. Nicholson, 21 Vet. App. 303, 311 (2017). The Board finds that an additional VA back examination and opinion should be obtained. The matters are REMANDED for the following action: 1. With the help of the Veteran, and after securing any necessary releases, attempt to obtain and associate any relevant, outstanding VA and/or private treatment records not already of record for the treatment of his back, neck, left knee, left shoulder, traumatic brain injury, and/or headache disabilities, in particular, records from Mercy Hospital in Charlotte, North Carolina, and Dr. Basil Boyd of the Miller Orthopaedic Clinic in Charlotte, North Carolina, in connection with treatment resulting from a February 1991 motor vehicle accident. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records. 2. Request and obtain from the Social Security Administration (SSA) all relevant documents pertaining to any applications by the Veteran for SSA disability benefits, including any decisions and/or determinations, and supporting medical documentation utilized in rendering any relevant decision or determination. Any negative search result should be noted in the record and communicated to the Veteran. 3. After the above development has been completed to the extent possible, schedule the Veteran for examination(s) by an appropriate clinician(s) to determine the nature and etiology of his back, neck, left knee, left shoulder, traumatic brain injury, and headache disabilities. The examiner(s) must review the entire claims file, to include a copy of this Remand, in conjunction with authoring the opinions, and such review should be noted in the examination reports. The examiner(s) is asked to identify any back, neck, left knee, left shoulder, traumatic brain injury, and/or headache disabilities present during the period on appeal (i.e., from July 19, 2017, the date VA received his claim), and for each such disability, opine whether it is at least as likely as not that the disability was incurred in or is otherwise related to service, to include a February 1991 motor vehicle accident. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. All opinions are to be accompanied by a rationale consistent with the evidence of record. If the examiner(s) cannot provide an opinion without resorting to speculation, he or she must provide complete explanations stating why this is so. In so doing, the examiner(s) must explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Battaile 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.