Citation Nr: 21063327 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 13-01 894 DATE: October 13, 2021 ORDER Entitlement to service connection for a lumbar spine disability is granted. FINDING OF FACT There is an approximate balance of negative and positive evidence as to whether the Veteran's lumbar spine disability first manifested during, or was otherwise caused by, events during the Veteran's military service. CONCLUSION OF LAW The criteria for service connection for a lumber spine disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from October 1971 to July 1973. This appeal comes to the Board from a June 2010 rating decision. The Veteran testified before a Veterans Law Judge at a hearing in February 2017. As the Veterans Law Judge that held the hearing is no longer employed by the Board, the Board offered the Veteran another opportunity for a hearing. However, the Veteran indicated in September 2021 that he did not wish to attend another hearing. The Board previously denied the Veteran's claim in an October 2017 decision, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In October 2018, the CAVC remanded this matter to the Board for action consistent with the terms of a Joint Motion for Remand (JMR). The JMR found the Board should obtain a medical opinion that (1) addresses medical literature submitted by the Veteran to determine whether his scoliosis is a developmental disease and (2) explains whether his December 1971 in-service back in jury was a superimposed injury to warrant service connection for his spondylitic defect. It also found the Board must (1) address materially favorable evidence of a November 2009 X-ray in relation to whether there is a current diagnosis of arthritis and (2) adequately address whether service connection is warranted for the Veteran's lower back condition, to include scoliosis and spondylitic defect of the lumbar spine. The Board remanded this matter in October 2019 to obtain outstanding service records, private treatment records, and VA examination evidence addressing the concerns in the JMR. On remand, VA obtained additional available records, a March 2020 VA lumbar spine examination, and a December 2020 addendum medical opinion. The addendum opinion includes an assessment that the Veteran's back disability is not a congenital condition, but it indicates that the condition was less likely than not caused by events during the Veteran's military service. The Board will reconsider the issue considering this additional evidence in the context of evidence previously in the record. Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection for chronic diseases listed in 38 U.S.C. sections 1101(3) and 38 C.F.R. § 3.309(a) may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period, usually one year, after separation from service; or was noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Such diseases include arthritis of the spine. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). In this case, VA made a formal finding in June 2020 that some of the Veteran's service records appear to be lost or unavailable and indicated that future attempts to locate such records would be futile. In circumstances where the Veteran's service treatment records are destroyed or lost through no fault of the Veteran, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). After reviewing the totality of the evidence, the Board finds the elements of service connection for a lumbar spine disability are met. The VA examinations and addendum opinions confirm the Veteran has a current lumbar spine disability, and the Veteran's service records show treatment for a lumbar spine strain including in November 1971. The VA examiners' negative nexus opinions rely heavily on an absence of follow-up treatment notes in the service records for a spine disability. However, VA has determined that pertinent records including X-ray reports from the time of the Veteran's service are missing through no fault of the Veteran's and must carefully consider the benefit of the doubt rule. The negative opinions also do not include adequate discussion of the lay statements about continuity of relevant symptoms and the possibility that degenerative arthritis manifested within one year of separation from active duty. See, e.g., May 2021 Correspondence from the Veteran; February 2010 statement from L.T.; 38 C.F.R. § 3.309(a). In contrast, the Veteran's treating physician, M.C., provided a positive nexus opinion received in February 2010, which is based on examinations of the Veteran and knowledge of the Veteran's medical history. The Board affords some probative value to the negative and positive opinions and notes both opinions contain some conclusory rationale without the benefit of extensive citation to pertinent evidence. However, the Board also finds further attempts at additional development to cure deficiencies in the opinions would be futile as VA found the Veteran's missing service records cannot be obtained. The Board ultimately finds there is an approximate balance of negative and positive evidence as to whether the Veteran's lumbar spine disability first manifested during or was otherwise caused by events during the Veteran's military service. Affording the benefit of the doubt to the Veteran, the Board grants entitlement to service connection for a lumbar spine disability. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.