Citation Nr: 20004307 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 16-10 697 DATE: January 17, 2020 ORDER Service connection for a low back disorder (other than painful sacroiliac scar status post pilonidal cystectomy) is denied. FINDINGS OF FACT 1. The Veteran is diagnosed with degenerative arthritis of the spine, intervertebral disc syndrome, spondylolisthesis, spinal stenosis, and lumbar disc herniation (low back disorder). 2. The Veteran sustained an in-service buttocks injury involving a fall from a plane that included impact to the back. 3. The in-service injury is not causally related to the current low back disorders. 4. Symptoms of a low back disorder were not chronic in service, were not continuous since service, and did not manifest to a compensable degree within one year of service separation. CONCLUSION OF LAW The criteria for service connection for a low back disorder (other than painful sacroiliac scar status post pilonidal cystectomy) have not been met, including on a presumptive basis. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1966 to October 1967. The instant case came from a September 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The case previously came before the Board of Veterans’ Appeals (Board) in September 2018 and the case was remanded to secure a back examination. The back examination occurred in October 2019, so the Board finds that there has been substantial compliance with the September 2018 remand with respect to the back disorder. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In an October 2019 Supplemental Statement of the Case, the RO denied service connection for a low back disorder, so the case was returned to the Board. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on the Department of Veterans Affairs (VA) to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Board finds that the duties to notify and assist have been met. The RO is tasked with obtaining pertinent records, which include service treatment records, as a part of the duty to notify and assist. In this case, the RO obtained copies of the records, but four pages are illegible. This is akin to a situation in which records are missing. Here, the Board finds that VA attempted to obtain all identified and available service treatment records for the Veteran. Despite these efforts, there are still four illegible pages. In such situations, where service treatment records are missing, the Board has a heightened obligation to explain its findings and conclusions, a heightened duty to search for records and explain their efforts to that effect, and a requirement to carefully consider the benefit-of-the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law, however, does not lower the legal standard for proving a claim for service connection, but rather increases the Board’s obligation to evaluate and discuss in its decision all evidence that may be favorable to the veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA, arising from missing records. In this case, the Board has carefully considered the reports of in-service impact from a fall and in-service symptoms. Beyond the issue with the missing records, neither the Veteran nor the representative has raised contentions regarding notice or assistance. Accordingly, the duty to notify and assist will not be further addressed. Service Connection Legal Authority Direct Service Connection Service connection can be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection generally requires (1) medical evidence of a current disability; 2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and 3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Chronic Disease Presumptive Service Connection Arthritis is a “chronic disease” under 38 C.F.R. § 3.309(a). For these reasons, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on “chronic” symptoms in service and “continuous” symptoms since service are applicable. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. § §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service Connection for a Low Back Disorder The Veteran is diagnosed with a low back disability. The numerous diagnoses were given in the October 2019 VA examination based on the results from a February 2016 lumbar spine MRI. During the VA examination, the Veteran described range of motion difficulties and functional impairments stemming from the low back disorder. The Veteran underwent surgery during service to remove a pilonidal cyst that was infected, resulting in a scar on the lower back that has already been service connected. As a result, that scar and related symptoms are excluded from the discussion of service connection for a back disorder. The Veteran also suggested that his coccyx was removed during the surgery, but the medical records do not show coccyx removal. The Veteran sustained an in-service injury to the buttocks area from a fall, which the Board finds necessarily involved some impact to the lower back. The Veteran explained to the VA examiner in October 2019 that during service he fell while he was working on an airplane, that he was repairing an airplane and slipped off of a wing that was six feet tall, landed on both feet, and then fell on the buttocks. The Veteran reported that he did not seek immediate treatment, pain started over the buttocks and the lower back a couple of months after the fall, and the pain progressively worsened. After a review of all the evidence, lay and medical, the Board finds that weight of the evidence is against finding a nexus between the in-service impact to the low back and the currently diagnosed low back disorders. Although the VA examination acknowledges the low back disorder and the in-service injury, the VA examiner issued a negative opinion on whether there was a link between the two. The VA examiner reasoned that the low back symptoms were acute in service and did not require chronic care. The current low back diagnoses manifested three decades after service and are not shown to be related to an acute impact during service. Accordingly, service connection on a direct basis must be denied. Because arthritis is a chronic disease, the Veteran gets the benefit of the chronic disease presumption. After a review of all the evidence, lay and medical, the Board finds that the requirements for the chronic disease presumption are not met. The arthritic symptoms were not chronic during service. There are a few treatment records for the cyst that was eventually removed, but records show no treatment for the low back. The Board acknowledges that there are four pages of service treatment records that are illegible. To the degree that they can be discerned, they look like medical examination or medical history documentation, rather than treatment records. Even if low back symptoms were mentioned in these treatment records, such mention for a brief time would not establish chronicity in this case because the remainder of the records that are legible tend to show no chronic symptoms in service. Additionally, the weight of the evidence shows no continuity of symptomatology since service. The VA examiner accurately noted that the diagnoses manifested three decades after service. The Veteran reported that the low back started to become stiff and painful over twenty years ago, which would mirror that timeline of post-service onset of back problems. So regardless of whether the timeline by the Veteran or by the VA examiner is followed, the result is the same—a break in symptomatology, with post-service onset of low back symptoms; therefore, the evidence is against a chronic disease presumption based on continuous post-service symptoms of arthritis. The missing records would not establish post-service continuity of symptomatology. The currently existing records already show a discontinuation of symptomatology when, at the service separation examination in October 1967, the Veteran denied any low back problems and the medical examination found no low back disorder. Finally, the evidence does not show that low back arthritis symptoms manifested to a compensable degree within one year of service. Accordingly, service connection for a low back disorder on a presumptive basis as a chronic disease must be denied. Given that the criteria for service connection for a low back disorder on a direct and presumptive basis cannot be met, the claim must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, Associate 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.