Citation Nr: 25008331 Decision Date: 06/24/25 Archive Date: 06/24/25 DOCKET NO. 17-52 793 DATE: June 24, 2025 REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for degenerative disease of the cervical spine (claimed as neck pain) is remanded. Entitlement to service connection for lumbosacral strain (claimed as lower back injury) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1976 to May 1985. The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2022. A transcript of the hearing is associated with the claims file. This matter was most recently before the Board in March 2024 where the claim of service connection for hypertension was remanded. The Board requested the agency of original jurisdiction (AOJ) to obtain medical records from Jackson Madison County Hospital since 2007, to invite the Veteran to provide any additional details of his potential toxic exposures in service due to his military occupational specialty (MOS), and to obtain a toxic exposure risk activities (TERA) opinion which considers the Veteran's description of toxic exposures. Having obtained medical records from Jackson Madison County Hospital, a statement from the Veteran regarding his potential toxic exposures in service, and a TERA opinion, the AOJ continued the denial of the claim in the November 2024 Supplemental Statement of the Case (SSOC) and returned the matter to the Board for further adjudication. Additionally, in the March 2024 Board decision, the Board denied the claims of service connection for degenerative disease of the cervical spine and service connection for lumbosacral strain. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court), which issued an order in October 2024 granting a Joint Motion for Partial Remand (JMPR) filed by the Veteran and VA's Office of General Counsel ("the parties"). The Court's order remanded the matter for action consistent with the terms of the JMPR. 1. Entitlement to service connection for hypertension is remanded. The Veteran is seeking service connection for hypertension that he claims arose during service due to his MOS as a tank turret mechanic. See May 2015 Notice of Disagreement; May 2024 Correspondence. Although further delay is regrettable, the Board finds further remand necessary to fully address the Veteran's contentions. Service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, the evidence must show competent evidence of (1) a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship, or nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, such as hypertension, may be presumed to be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C. § 1131, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Additionally, if the fact of chronicity in service is not adequately supported, presumptive service connected may also be established by evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hypertension is one such disease enumerated under 38 C.F.R. § 3.309(a). Throughout the pendency of the claim for service connection of hypertension, the Veteran has asserted that his hypertension began in service. In the May 2015 Notice of Disagreement, the Veteran wrote that during service he suffered from elevated blood pressure readings. In the February 2022 hearing, the Veteran reported that during service, when he received medical treatment, he would have high blood pressure, but "I think, my personal opinion, it's just, they didn't they didn't do anything about it. Because it depends on what I was [receiving treatment] for." In the February 2022 hearing the Veteran also reported that during service "I felt dizzy sometimes. Seeing the little specks flying. I didn't know that that was my blood pressure, but it was." In a May 2024 correspondence, the Veteran described his working conditions as a tank turret mechanic during service. He explained that "I experienced toxic fumes being around [the tanks] 5 days a week. It was high amounts of carbon monoxide daily that was in the air. I was in for 9 years." The Board finds the negative August 2024 TERA opinion well-reasoned and adequate for purposes of adjudication. However, the Board finds the November 2022 VA medical opinion for direct service connection inadequate because it failed to adequately address all of the Veteran's lay statements and was solely based on the absence of corroborating medical records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). As such, remand is required to provide the Veteran an examination addressing all his contentions. See Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). 2. Entitlement to service connection for degenerative disease of the cervical spine (claimed as neck pain) is remanded. 3. Entitlement to service connection for lumbosacral strain (claimed as lower back injury) is remanded. Upon review of the JMPR, the Board finds that additional remand is required to adequately address the Veteran's claims. In the January 2025 JMPR, the parties agreed that the Board failed to ensure the Veteran received an adequate VA medical examination regarding the Veteran's claimed cervical and lumbosacral spine disabilities. Specifically, the parties agreed that the October 2023 VA medical opinion which opined against a link between the Veteran's disabilities and his military service failed to address a number of pieces of evidence which weigh in favor of a link between the claimed disabilities and military service. Notably, the parties agreed that the examiner's conclusion that the available medical records failed to support evidence of complaints of or treatment for lumbosacral strain or neck pain during his active service period for the following reasons: the lack of a separation examination in the Veteran's service treatment records; the Veteran's in-service October 1977 injury; the Veteran's in-service February 1980 treatment for neck pain after which the Veteran was placed on a 30-day physical profile; the March 1980 in-service incident in which the Veteran fell off of a tank and reported neck pain; the 1982 service treatment record concerning lower lumbar and thoracic back pain; and any impact of the Appellant's service, including handling heavy equipment in a cold-weather environment. Furthermore, the parties agreed that the examiner failed to address the October 2015 VA examiner's diagnosis of lumbosacral sprain. Therefore, based on the JMPR, the Board finds a remand is required to obtain an adequate nexus opinion. Furthermore, as the Board is remanding the claims of degenerative disease of the cervical spine and lumbosacral strain, the Board will allow the Veteran another opportunity to authorize the disclosure of private medical records from Dr. Purasey in orthopedics which he has failed to do so despite multiple requests by the AOJ. See March 2023 BVA Decision; March 2024 BVA Decision. The Veteran is once again notified that failure to provide documents related to his claims will result in VA adjudicating the claims based on the evidence of record. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that the duty to assist is not always a one-way street and requires a claimant's active participation in a claim for VA benefits). The matters are REMANDED for the following action: 1. Instruct the Veteran to complete a VA Form 21-4142 for all relevant private treatment records, to include specifying the Veteran the need for records from Dr. Purasey in orthopedics. 2. Thereafter, obtain an addendum opinion regarding the Veteran's neck and back claims. The examiner should identify all current disorders of the lumbar spine and cervical spine and opine whether it is at least as likely as not that a current disorder(s) had its onset in service or is otherwise etiologically related to service. The examiner must specifically address the October 2015 VA examiner's diagnosis of lumbosacral sprain. The examiner may rely on the Board's factual finding that his current allegations of neck and back pain since service is inconsistent with his prior statements including a denial of neck and back until a September 2014 VA treatment record wherein the Veteran reported pain in the neck for 1.5 years duration. Specifically, the examiner must explain whether there is any medical reason to accept or reject the Veteran's belief that his low back and neck disabilities were caused by his injuries in service, to include the October 1977 back bruise, and the February 1980 tank accident including an assessment as to whether the Veteran's current disabilities are attributable to the mechanism of injuries in service and the rigors of his handling heavy equipment and working in a cold weather environment. In answering the above, the examiner's attention is directed towards the following: " The lack of a separation examination in the Veteran's service treatment records " The Veteran's in-service October 1977 injury wherein the Veteran was thrown to the ground and fell upon a brick during a football game. See April 2025 Appellate Brief. " The Veteran's in-service February 1980 treatment for neck pain after which the Veteran was placed on a 30-day physical profile. " The March 1980 in-service incident in which the Veteran fell off of a tank and reported neck pain. " The 1982 service treatment record concerning lower lumbar and thoracic back pain. " Any impact of the Appellant's service, including handling heavy equipment in a cold-weather environment. " October 2009, August 2010, December 2010 and August 2011 VA treatment records showing that the Veteran denied neck and back pain. " A September 10, 2014, VA telephone encounter note reporting pain in the neck for 1.5 years duration. " The October 2015 VA examiner's diagnosis of lumbosacral sprain 3. Obtain an addendum opinion regarding the etiology of the Veteran's hypertension. The entire claims file must be provided to the examiner and reviewed in full. The need for in-person examination or interview is left to the discretion of the examiner. Thereafter, the examiner is asked to provide an opinion with respect to the following: (a) Whether it is at least as likely as not (approximately balanced or nearly equal, if not higher) that the Veteran's hypertension began in service? Please give a detailed rationale on the criteria for diagnosing hypertension and explain why or why not the Veteran's recollection of dizziness and seeing little specks flying during service demonstrated the onset of hypertension in service. In answering the above the examiner is specifically requested to address the following: " The Veteran's claim that his blood pressure was routinely elevated while in service. See May 2015 NOD. " The Veteran's report of dizziness and seeing flecks while in service. See February 2022 Hearing Transcript. " The Veteran's routine exposure to carbon monoxide during service. See May 2024 Correspondence In answering the above, the examiner's attention is directed towards the following in-service blood pressure readings: " 110/82 on October 22, 1976 " 124/76 on April 22, 1977 " 138/82 on February 27, 1980 " 120/80 on March 18, 1981 " 120/70 on November 10, 1981 " 98/68 on November 18, 1981 " 100/70 on November 19, 1981 " 116/78 on November 19, 1981 " 110/72 on June 18, 1982 " 130/76 on October 27, 1982 " 102/64 on November 12, 1982 " 92/64 on February 11, 1983 " 120/62 on October 1983 " 104/60 on December 22, 1983 " 112/84 on June 20, 1984, and " The November 16, 1984, Report of Medical Examination, wherein the Veteran's blood pressure was recorded at 132/80, and his vascular system was evaluated as normal. The examiner is reminded that the lack of evidence of treatment cannot be the sole basis for a negative nexus. Buchanon v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an absolute bar to the service connection claim). T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Biggs, Andrew 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.