Citation Nr: 1751479 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 16-48 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Mukherjee, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1956 to December 1958. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California which denied service connection for a back condition and surgeries. Jurisdiction in this matter has been transferred to the RO in Oakland, California. The case was most recently before the Board in May 2017, and the issue was remanded for additional development. The requested development on remand having been accomplished, these issues are again before the Board. In September 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT In giving the Veteran the benefit of the doubt, it is at least as likely as not that his low back disability began during service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). Legal Criteria and Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Throughout the appeals period, the Veteran has contended that his low back disability is a result of an accident during a helicopter training mission. See June 2015 Notice of Disagreement; September 2017 Board Hearing Transcript. He has also consistently stated that he underwent back surgery in 1963, 1965, 1970, 1975, and 1983. The Board notes that the Veteran submitted VA Form 21-4142 with information for his previous treatment providers; however, these records were unable to be obtained by the RO. However, a November 2014 Treatment Note confirms that the Veteran underwent a laminectomy in the 1960s. See also September 2015 Cardiology Note (past surgical history includes 5 laminectomies). In April 2016, the Veteran underwent a VA examination to assess the nature and etiology of his low back disability. The VA examiner opined that, although the Veteran is credible to report his back injury, it is less likely than not related to active duty service because there is no medical evidence to substantiate his claims. However, the examiner did note a surgical scar on the Veteran's back, corroborating his statements about prior back surgery. Although the Veteran's post-service treatment records have not consistently documented the Veteran's ongoing low back complaints, the Board finds that he is competent and credible with regard to his statement that he has had ongoing symptoms. As such, in giving the Veteran the benefit of the doubt, and considering the evidence of record as a whole, the Board finds that service connection for a low back disability is warranted, and the claim is granted in full. ORDER Entitlement to service connection for a low back disability is granted. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs