Citation Nr: 20068614 Decision Date: 10/22/20 Archive Date: 10/22/20 DOCKET NO. 18-45 101 DATE: October 22, 2020 ORDER Entitlement to service connection for lumbar spine disability is granted. Entitlement to service connection for cervical spine (neck) disability is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the lumbar spine disability is at least as likely as not related to an in-service event, injury, or disease. 2. Resolving reasonable doubt in the Veteran’s favor, the neck disability is at least as likely as not related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar spine disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a neck disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1955 to September 1957. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran testified before the undersigned Veterans Law Judge at a Board Virtual hearing. In June 2020, the Board remanded these matters for further development, to include a VA examination and opinion. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.§ 1131; 38 C.F.R.§ 3.303. Service connection requires competent evidence showing: (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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for lumbar spine disability 2. Entitlement to service connection for cervical spine disability The Board notes that the Veteran’s service treatment records (STRs) are unavailable. The RO requested them but received a response from the National Personnel Records Center (NPRC) in August 2015 that the records were “fire-related.” When STRs are lost or missing, the United States Court of Appeals for Veterans Claims (Court) has held that VA has a heightened duty “to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision.” Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51(1996)); see also Cuevas v. Principi, 3 Vet. App. 542, 548(1992) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, no presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. See Cromer, 19 Vet. App. at 217-18 (2005) (Court declined to apply “adverse presumption” against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). An August 2020 VA examination report documents the Veteran has been diagnosed with a cervical and lumbar spine disabilities, to include spine degeneration. Thus, the first element of direct service connection is met. The Veteran asserts that his current back and neck disabilities are etiologically related to an in-service training accident during service when his vehicle was struck by a motor round and he subsequently fell. He indicates that he has had chronic back and neck pain since service. The Board observes the Veteran is competent to report sustaining neck and back injuries; as well as experiencing the in-service injury. Therefore, the Board finds that the second element of service connection is met. During the August 2020 VA examination, the examiner examined the Veteran in person. She indicated that unfortunately there was no evidence of record of the Veteran’s reported injury of falling on a tank during mortar training drill secondary to a fire and loss of military records. She indicated that it is difficult to assess the severity of the injury that would lead to the Veteran’s current medical conditions. She found, however, the Veteran’s account of the accident as well as him having no knowledge he could file for his neck and back conditions, she believes is authentic. The examiner concluded that secondary to her findings the Veteran’s cervical spine and lumbosacral spine arthritis with intervertebral disc syndrome are at least as likely as not related to the in-service injury secondary to fall. As there is an adequate opinion that provides a nexus, the third element of service connection is met. As all three elements have been met and resolving all doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise and that the evidence satisfactorily establishes that the claimed neck and low back disabilities originated during his active service. In reaching this decision, the Board notes that lay statements and testimony have consistently and credibly indicated that he sustained neck and low back injuries in service and has experienced chronic neck and low back pain since the in-service injury. As such, service connection is warranted. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.