SPINE IMPAIRMENT OF

Summary

The Veteran, who served from June 1972 to June 1976, appeals the denial of service connection for a back disorder and a neck disorder. The Veteran contends these conditions resulted from an in-service fall through a scuttle hatch, landing on a steel deck. Service connection requires evidence of a current disability, an in-service event, and a nexus between the two. The record confirms current back and neck disorders. The Board found the Veteran's statements regarding the in-service fall credible, and the issue was whether a nexus to service existed. The Board considered multiple medical opinions. A February 2024 VA examiner opined favorably, finding a nexus due to the in-service fall, chronicity of symptoms, and lack of pre-service issues. A private physician, Dr. S.B., also opined favorably, noting imaging from 2002 showed an old injury supporting longstanding issues and post-traumatic arthritis related to the in-service incident. A May 2024 VA examiner opined unfavorably, attributing the conditions to a post-service fall and finding no compelling radiographic evidence of long-standing pathology. The Board afforded the May 2024 opinion less weight due to its failure to address the February 2024 opinion and being obtained in error. The Board gave great probative weight to the February 2024 VA opinion and Dr. S.B.'s opinion, finding them well-reasoned and supported by the Veteran's history. Resolving reasonable doubt in the Veteran's favor, the Board granted service connection for both the back and neck disorders.

Rationale

Veteran's statements regarding in-service fall found credible.; Favorable opinions from February 2024 VA examiner and Dr. S.B. outweigh unfavorable May 2024 VA opinion.; Reasonable doubt resolved in Veteran's favor due to approximate balance of evidence.

Full Decision Text

Citation Nr: 26000225
Decision Date: 01/07/26	Archive Date: 01/07/26

DOCKET NO. 10-26 474
DATE: January 7, 2026

ORDER

Entitlement to service connection for a back disorder is granted.

Entitlement to service connection for a neck disorder is granted.

FINDINGS OF FACT

1. Resolving reasonable doubt in the Veteran's favor, the evidence is at least in approximate balance as to whether his back disorder is related to his military service.

2. Resolving reasonable doubt in the Veteran's favor, the evidence is at least in approximate balance as to whether his neck disorder is related to his military service.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a back disorder have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for entitlement to service connection for a neck disorder have been met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1972 to June 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a Decision Review Officer hearing in April 2010 and before a Veterans Law Judge in March 2011 who has since retired; transcripts from both hearings are of record.  In August 2022, the Veteran declined the opportunity to appear for another Board hearing.

The Board remanded the instant matters for additional development in September 2013, August 2017, September 2022, and November 2023.  The Board finds there has been substantial compliance with the prior remands and any failings with regards to such are moot given the granted claims herein.

The Board acknowledges that materials have been submitted that include hyperlinks to content that is not otherwise part of the record on appeal.  While the Board could review evidence submitted via hyperlink, because hyperlinked information may not be static, the Board would be unable to determine whether what the Board saw when it accessed the hyperlinked information was what the submitting parties intended to rely on.  As the Board cannot create evidence, what was found at the hyperlinked address would not be part of the record.  In turn, the United States Court of Appeals for Veterans Claims (Court) would be unable to perform meaningful appellate review of evidence that is not in the record.  Given the foregoing, the Board advises that hyperlinked references were not reviewed.

1. Entitlement to service connection for a back disorder.

2. Entitlement to service connection for a neck disorder.

The Veteran contends that his back and neck were injured during service when he fell through a scuttle hatch while descending into a pump room, landing approximately 14 feet down on a steel deck.  

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for direct service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

The record in this case clearly establishes the Veteran has back and neck disorders (see September 2016, and February 2023 VA examination reports).  Regarding the in service element, the Board has repeatedly sought to obtain records documenting the Veteran's reports of being treated following the above-referenced fall.  Further, in the September 2013 Board remands, the Board found the Veteran's statements regarding the fall to be credible.  Smith v. Wilkie, 32 Vet. App. 332, 334 (2020).  Thus, the remaining question is whether there is a nexus with service.  On this question there are opinions in favor of, and against the claims.

Before turning to the opinions of record, in the September 2022 Board remand the Board found the existing opinions were not based on a complete view of the record given the later association of deck logs.  Then, in November 2023, the Board found February 2023 opinions inadequate to decide
 treated following the above-referenced fall.  Further, in the September 2013 Board remands, the Board found the Veteran's statements regarding the fall to be credible.  Smith v. Wilkie, 32 Vet. App. 332, 334 (2020).  Thus, the remaining question is whether there is a nexus with service.  On this question there are opinions in favor of, and against the claims.

Before turning to the opinions of record, in the September 2022 Board remand the Board found the existing opinions were not based on a complete view of the record given the later association of deck logs.  Then, in November 2023, the Board found February 2023 opinions inadequate to decide the claim.  While the Board did not address the April 2023 addendum opinions, the Board finds that the fact the claims were remanded suggests the opinions were found inadequate to decide the claim.  Given the foregoing, the Board will only address the opinions that have been associated with the record following the most recent remand.

The evidence in favor of the claim includes a February 2024 VA examiner's opinion that it was at least as likely as not that the Veteran's back and neck disorders were related to service.  While the issue presented to the examiner was phrased as "lumbar and cervical spine disorders[,]" the rationale provided focused on the cervical spine.  In support of the opinion, the examiner acknowledged the Veteran's reports regarding his in service fall and the fact that he had no issues related to his neck disorder prior to service.  Thus, the examiner opined that as the Veteran was injured during service and had chronicity of symptoms thereafter, a nexus had been established.  

In June 2024, the Veteran's representative also submitted a positive opinion from Dr. S.B. who opined it was at least as likely as not that the Veteran's spinal injuries were related to service.  Initially, the physician noted reviewing the Veteran's records and acknowledged the lack of documentation of the in service fall and the presence of medical evidence regarding a post-service 2002 fall.  Notably, Dr. S.B. relayed that imaging obtained in 2002 revealed an old injury to the lumbar spine which supported the Veteran's reports regarding longstanding back and neck issues stemming from service and pre-dating the 2002 injuries.  The clinician went on to discuss post-traumatic arthritis and its onset, intimating that the images seen in 2002 revealed a long-progressing arthritis that was related to the Veteran's in service injury.  In other words, the clinician stated the damage seen in 2002 was not normal wear and tear and established chronicity of symptoms stemming from a traumatic incident (the in-service fall) even if the Veteran did not have medical evidence to support chronicity of care. 

Turning to the evidence against the claim, the RO obtained another opinion after the February 2024 examiner opined in favor of the claims.  Specifically, in May 2024 another VA examiner reviewed the records and found it was less likely than not that the Veteran's back and neck disorders were related to service.  In support of the opinion, the examiner opined that imaging from 2003 (not 2002) revealed no compelling radiographic findings to support a long-standing lower back pathology; thus, the examiner opined against the claims and instead opined that the Veteran's back and neck disorders were related to his post-service fall.

The Board affords the May 2024 VA opinion that the Veteran's back and neck disorders were not caused by his military service limited probative weight as the examiner failed to address the positive February 2024 opinion that was already of record.  Further, the Board affords such opinion less probative weight as it was obtained in error.  In this regard, as a matter of course, VA should not develop for negative evidence solely to deny a claim as the RO seems to have done here.  38C.F.R. § 3.304 (c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination").

Turning to the positive February 2024 VA opinion and Dr. S.B.'s June 2024 opinion, the Board affords the opinions great probative weight as they were supported by rationales specific to the Veteran's health history and focused on his reports.  Moreover, Dr. S.B. explained his medical reasoning in finding that the Veteran's disorders pre-dated his post-service fall.

Given the foregoing, the Board will resolve reasonable doubt in the Veteran's favor and finds that all elements of service connection have been met.  Therefore, service connection for back and neck disorders is granted.  See 38 U.S.C. § 5107 (b).

 


 it should not be undertaken when evidence present is sufficient for this determination").

Turning to the positive February 2024 VA opinion and Dr. S.B.'s June 2024 opinion, the Board affords the opinions great probative weight as they were supported by rationales specific to the Veteran's health history and focused on his reports.  Moreover, Dr. S.B. explained his medical reasoning in finding that the Veteran's disorders pre-dated his post-service fall.

Given the foregoing, the Board will resolve reasonable doubt in the Veteran's favor and finds that all elements of service connection have been met.  Therefore, service connection for back and neck disorders is granted.  See 38 U.S.C. § 5107 (b).

 

 

Nathaniel Doan

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Sosna, 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.