Citation Nr: A21020667 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 210506-158577 DATE: December 30, 2021 ORDER Entitlement to service connection for a back disability is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a diagnosed back disability or back pain productive of functional impairment in earning capacity at any time during or proximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Air Force from May 1966 to December 1969. The Board of Veterans' Appeals (Board) thanks him for his service. The rating decision on appeal was issued in December 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the May 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. 1. Entitlement to service connection for a back disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be awarded on a presumptive basis for certain chronic diseases listed in 38 C.F.R. § 3.309(a), that manifest to a degree of 10 percent within one year of service separation. Id. §§ 3.303(b), 3.307. Service connection may be awarded on the basis of continuity of symptomatology for those conditions listed in 38 C.F.R. § 3.309(a) if a claimant demonstrates (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303(b). The Board concludes that the Veteran does not have a current diagnosis for, or functional impairment of earning capacity associated with, his back pain and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board acknowledges the Veteran's May 2021 Statement In Support of Claim that clearly explains why he believes he should be granted service connection. Specifically, the Veteran reported that (1) he injured his back lifting heavy equipment around June or July 1969, sought treatment, and was instructed to wear a back brace for approximately six months; (2) he experienced ongoing and regular pain following discharge, which was further exacerbated over the years by occasional injuries; and (3) he currently has "a back issue/injury/pain." In this case, there is simply no evidence of record to support a finding that the Veteran has a current disability for VA disability compensation purposes. Even considering the Veteran's statement as both competent and credible, it does not provide a basis upon which to grant service connection. A general assertion that the Veteran has a current "back issue/injury/pain" does not establish a current medical diagnosis, nor does it describe pain that produces a functional impairment in earning capacity. Additionally, the Board notes for the Veteran that continuity of symptomatology can only serve as a basis for presumptively granting service connection if the Veteran's current disability is one listed under 38 C.F.R. § 3.309(a), such as arthritis. General back pain, even if shown to produce a functional impairment in earning capacity, cannot serve as the basis for presumptive service connection. As such, it is necessary for the record to include medical evidence that the Veteran's back disability is at least as likely as not related to his reported in-service injury. The Veteran also contends that he has existing service treatment records that were not associated with the file, and that the treatment may have occurred at the Travis Air Force Base hospital. He reports that he is attempting to locate his medical records showing a current disability and ongoing treatment for his back since discharge. However, no such records were submitted within the 90-day evidence window. Under the AMA, the Veteran's May 2021 statement cannot serve as the basis for invoking VA's Duty to Assist because it was received after the December 2020 rating decision on appeal was issued. Further, the Board finds that the AOJ fulfilled its duty to assist prior to issuing its decision based on the information of record at that time. Specifically, in August 2020, the AOJ submitted a VA 21-3101 requesting a complete copy of the Veteran's personnel file, medical records, and dental records from service. On September 8, 2020, the service medical records (in the form of the Veteran's entrance examination and report of medical history) and military personnel record were added to the claims file. In December 2020, the AOJ received a response indicating that the September 2020 records were "all available requested records[.]" In December 2020, the AOJ also confirmed that there were no available VA treatment records. Based on the above, the Board finds that the AOJ had no basis for concluding that there were additional outstanding VA or service records to obtain. Therefore, it fulfilled its duty to assist the Veteran before the December 2020 rating decision was issued. In sum, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a current back disability that is causally related to service. As such, the claim for entitlement to service connection must be denied. The Board encourages the Veteran to submit a supplemental claim to the AOJ to request that it considers the evidence he submitted to the Board, along with any medical evidence the Veteran has been able to obtain documenting a current disability and/or treatment since service. If the Veteran was diagnosed with arthritis (or any other relevant disability listed in § 3.309(a)) in service or since discharge, the Board encourages him to submit documentation of that diagnosis. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beeler, C. 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.