Citation Nr: 23051183 Decision Date: 09/15/23 Archive Date: 09/15/23 DOCKET NO. 19-37 836 DATE: September 15, 2023 ORDER Entitlement to service connection for a back disorder is denied. REMANDED Entitlement to service connection for a respiratory disorder, to include a lung/breathing disorder, is remanded. Entitlement to service connection for headaches is remanded. FINDING OF FACT The Veteran does not have a current back disability. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from March 1972 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2019 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Law and Analysis The Board notes that the Veteran has not been afforded a VA examination in connection with his claim for service connection for a back disorder; however, the Board finds that an examination is not warranted. Under the law, an examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and, (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). In the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In this case, a VA examination is unnecessary to decide the claim because, as discussed below, there is no evidence of any current back disability. In addition, there is no evidence of any injury, disease, or event in service to which a current back disorder could be related. 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). The Veteran has not raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a back disorder. In his November 2018 claim, the Veteran indicated that he was filing a claim for service connection for a back problem. However, the evidence of record does not show that he has been diagnosed with any back disorder. Notably, in a March 2019 VA treatment record, the examiner noted that the Veteran's back had normal range of motion. The record does not contain any other evidence of complaints, treatment, or diagnosis of a back disorder. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Thus, there is no basis upon which to award service connection. The Veteran's service treatment records are also negative for any complaints, treatment, or diagnosis of a back disorder. In fact, an April 1973 separation examination found his spine and musculoskeletal system to be normal. The Board further notes that the Veteran has also not identified any disease, injury, or illness in service or otherwise identified a theory of entitlement. Rather, the Veteran has only filed a claim for a back disorder without indicating any basis for the claim. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). Based on the foregoing, the Board finds that the evidence does not show that the Veteran has a back disorder that manifested in service. Accordingly, the Board concludes that service connection is not warranted for a back disorder. REASON FOR REMAND Upon review, the Board finds that additional development is needed prior to adjudication of the issues. Respiratory Disorder In his November 2018 claim, the Veteran asserted that he has a lung disorder due to exposure to mustard gas in service. In a March 2019 Notice of Disagreement (NOD), the Veteran also indicated he was seeking service connection for a breathing condition. Given the Veteran's assertions, the Board has recharacterized the issues more broadly to ensure complete consideration of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). In January 2019 correspondence, the Veteran indicated that he has been exposed twice to mustard gas while serving at Fort Jackson, in Unit B-2-1, in March 1972. It does not appear that the AOJ made any attempts to verify the Veteran's claimed exposure to mustard gas. Moreover, it does not appear that the Veteran's complete service personnel records have been associated with the file. Accordingly, a remand is necessary to obtain the Veteran's records and to verify his claimed exposure. In addition, the Board notes that the Veteran has not been afforded a VA examination for his claim. March 2019 VA treatment records document that the Veteran reported having nasal congestion. In his April 1973 separation Report of Medical History, the Veteran indicated that he had ear, nose, and throat trouble. Given these records, the Veteran should have been afforded a VA examination. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, a remand is necessary to obtain a VA examination and opinion that addresses the nature and etiology of any respiratory disorder the Veteran may have. Headaches In his November 2018 claim, the Veteran asserted that his headaches are due to service. In his April 1973 separation Report of Medical History, the Veteran indicated that he experienced dizziness, although he denied having frequent or severe headaches. March 2019 VA treatment records document that the Veteran reported having headaches. Given these records, the Veteran should have been afforded a VA examination. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, a remand is necessary to obtain a VA examination and opinion that addresses the nature and etiology of the Veteran's headaches. The matters are REMANDED for the following actions: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his headaches and any respiratory disorders. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. The AOJ should take any appropriate steps to verify the Veteran's claimed exposures in service. In his November 2018 claim and January 2019 correspondence, the Veteran indicated that was exposed to mustard gas at Fort Jackson. The Veteran's complete military personnel records should also be obtained and associated with the file. Any attempts and responses should be documented in the claims file. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any respiratory disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran has a respiratory disorder that manifested in service or is either causally or etiologically related to the Veteran's military service, to include any possible mustard gas exposure therein. In rendering this opinion, the examiner should address the April 1973 Report of Medical History where the Veteran reported ear, nose, and throat trouble. 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. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any headache disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran has a respiratory disorder that manifested in service or is either causally or etiologically related to the Veteran's military service, to include any possible mustard gas exposure therein. In rendering this opinion, the examiner should address the April 1973 Report of Medical History where the Veteran reported experiencing dizziness. 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. (Continued on the next page) ? 5. The AOJ should conduct any other development as may be indicated. J. SAIKH Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Andrews, Ned G. 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.