Citation Nr: 21063382 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-05 401 DATE: October 14, 2021 ORDER Service connection for a low back disability is granted. FINDING OF FACT The Veteran's low back disability is related to service. CONCLUSION OF LAW The criteria to establish service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1978 to August 1982, with subsequent periods of active duty for training (ACDUTRA) in the National Guard. This matter comes before the Board of Veterans' Appeals (Board) from a January 2015 rating decision by the Agency of Original Jurisdiction (AOJ). The Board denied the Veteran's claim in November 2019. She appealed to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted the parties' Joint Motion for Remand (JMR), vacated the Board's November 2019 decision, and returned the matter to the Board for action consistent with the terms of the JMR. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, 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 may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). As an initial matter, the Board observes that service treatment records from the Veteran's initial period of service are not available. In instances where a claimant's service department records are unavailable, the Board is under a heightened obligation to explain its findings and to carefully consider whether the evidence is in equipoise, and if so, to resolve the matter in the claimant's favor. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); see also Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Veteran asserts that her current low back disability is related to an injury incurred during her initial period of service. In her August 2015 notice of disagreement, she described an injury that occurred on a cleaning detail, when slab walls from hearing booths fell on her and two other soldiers. She noted that she had reinjured her back during service. In her January 2017 substantive appeal, she stated that this injury occurred in October 1978. She indicated that she had problems with her upper and lower back since that incident. Service records include a January 1995 line of duty determination indicating that the Veteran sustained a lifting injury to her left shoulder during ACDUTRA in September 1994. An October 1994 physical therapy note indicates complaints of rhomboid and trapezius pain. In September 1995, the Veteran reported that she continued to have symptoms. She reported the history of injury during her initial period of service on VA examination in October 2016 and May 2019. Although there is no medical evidence establishing an injury during her initial period of service, the Board finds the Veteran is competent to establish the presence of observable symptomatology as to whether she had low back pain during service, and whether it continued over the years, to include as the result of injury during active duty. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Private medical records reflect findings of degenerative disc disease and facet arthrosis in the lumbar spine and sacroiliac joint. See December 15, 2010 Boone County Hospital radiology report; see also May 17, 2013 report from Metro Anesthesia & Pain Management. (Continued on the next page) Upon review of the record, the Board concludes that service connection for the Veteran's low back disability is warranted. In reaching this conclusion, the Board notes that the Veteran has competently and consistently reported that she experienced symptoms referable to her low back during her initial period of service and that the September 1994 injury was also productive of low back symptoms. Considering the record as a whole, the Board concludes that the evidence is in approximate balance as to whether the Veteran's current low back disability, diagnosed as degenerative arthritis and facet arthrosis of the lumbar spine, is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for the Veteran's low back disability is warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.