Citation Nr: A25035190 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240806-462417 DATE: April 16, 2025 ORDER Entitlement to service connection for a neck disability is denied. REMANDED Entitlement to service connection for a left hip disability is remanded. FINDING OF FACT The evidence of record persuasively weighs against finding that the Veteran currently has a neck disability. CONCLUSION OF LAW The criteria for service connection for a neck disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1998 to December 1998 and from October 2000 to July 2007. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2024 Higher-Level Review (HLR) rating decision by a Department of Veterans Affairs (VA) Regional Office. Initially, the Veteran's claim of entitlement to service connection for neck and left hip disabilities were denied in an April 203 rating decision. Later in April 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: HLR, requesting review of the April 2024 denials of entitlement to service connection. The August 2024 HLR rating decision on appeal was issued in response to that request. In the August 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2024 agency of original jurisdiction (AOJ) decision, which was subsequently subject to HLR. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to HLR, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claim of entitlement to service connection for a left hip disability, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii). Service Connection - Neck Disability The Veteran contends that he has a neck disability that is related to his active service. Specifically, the Veteran asserts that "load bearing work" done during active service caused his neck disability. See October 2023 VA Form 21-526EZ. Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Although the Veteran's service treatment records (STRs) indicate that he had some complaints of generalized body pain, they are silent as to any reports or injuries regarding his neck specifically. See October 2006 Treatment Records. Treatment records from the period on appeal do not indicate any medical treatment, complaint, or diagnosis related to the Veteran's neck and/or any neck pain. The Board notes that the Veteran was not provided with a VA examination or medical opinion in conjunction with the claim for service connection for a neck disability. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, however, there is no evidence showing that the Veteran has the claimed disability, let alone that such disability might be associated with service. See McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). In this regard. The Board has also considered the notion that evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018). That being said, there is no evidence of complaints of neck pain or any functional impairment of earning capacity related to the Veteran's neck other than the bare assertion of a claim for disability compensation. Accordingly, the Board finds that neither a VA examination nor medical opinion is warranted, and the evidence currently of record is sufficient to decide the claim. In order for a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). As identified above, there is no indication from the record that the Veteran has a diagnosis of a neck disability, to include pain resulting in functional impairment. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence weighs persuasively against the claim and is not in approximate balance. Therefore, entitlement to service connection for a neck disability is not warranted. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). REASONS FOR REMAND Service Connection - Left Hip Disability The Veteran contends that he has a left hip disability related to his active service. The Veteran underwent a VA examination in February 2010. During that examination, the Veteran reported chronic left hip pain that began during his active service. The Veteran was diagnosed with left hip strain. Imaging conducted showed mild degenerative joint disease of both hips and probable degenerative changes of the left sacroiliac joint. No nexus opinion was rendered during that examination. The Veteran was afforded a VA hip and thigh examination in November 2023. During the examination, the Veteran again stated that he had chronic bilateral pain in his hips. It is unclear whether the examiner considered or tested the Veteran for any left hip disabilities. The examination indicated the claims considered were only those associated with the Veteran's right hip; however, the examination report did list the Veteran's left hip as "undamaged" - which is contraindicated by the imaging conducted during the February 2010 VA examination. The examiner's nexus opinion likewise only addressed the Veteran's right hip disabilities. The Board finds that both the VA examinations and any opinions associated therewith are inadequate for adjudication purposes because neither provided a nexus opinion for the Veteran's claimed left hip disability. Moreover, the most recent VA examination failed to consider or address the Veteran's prior left hip diagnoses. The AOJ's failure to obtain an adequate examination and opinion prior to rendering its determination is a pre-decisional duty to assist error requiring corrective action. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, remand is warranted so a new examination can be obtained. 38 C.F.R. § 20.802(a). The matters are REMANDED for the following action: Schedule the Veteran for an examination with an examiner with appropriate expertise to determine the nature and etiology of the claimed left hip disability. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed, to include diagnostic imaging. Based on the examination results and review of the record, the examiner must first identify all left hip disabilities present during the pendency of the appeal or proximate thereto. Then, for each diagnosis identified, the examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) such disability manifested during active service or is otherwise causally or etiologically related to the Veteran's active service. In rendering their opinion, the examiner must consider and address the Veteran's February 2010 VA examination diagnosing the Veteran with left hip strain, as well as the Veteran's lay statements regarding the onset and continuity of his symptoms. A rationale for all opinions expressed must be provided. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Davis, Alexandra J. 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.