Citation Nr: 21013734 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-35 057A DATE: March 10, 2021 ORDER Entitlement to service connection for degenerative arthritis of the thoracolumbar spine is granted. FINDING OF FACT Resolving all doubt in favor of the appellant, the evidence of record demonstrates that his degenerative arthritis of the thoracolumbar spine is attributable to active duty service or else a period of active duty for training (ACDUTRA). CONCLUSION OF LAW The criteria for service connection for degenerative arthritis of the thoracolumbar spine have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty for training in the United States Army from July 7, 1986 to September 20, 1986. See, e.g.: Rating Decision (May 30, 2019). Aside from this period of active duty, the appellant had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the U.S. Army National Guard from May 1985 to May 1993. See Service Record (rec’d Feb. 6, 2019 ). By way of background, the appellant’s claim was previously before the Board on July 2, 2018, see BVA Remand ( July 2, 2018 ), at which time it was remanded. The appellant was most recently issued a Supplemental Statement of the Case (SSOC) on December 2, 2020. See SSOC (Dec. 2, 2020). The Board accordingly reasserts jurisdiction. Ultimately, the Board grants the claim for service connection in full; therefore, the appellant cannot be prejudiced by any failure of substantial compliance with previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for degenerative arthritis of the thoracolumbar spine is granted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). “Active military service" is defined by VA law and regulations. Active military, naval, or air service includes active duty, any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in the line of duty. See 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training during which the individual concerned was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. Direct service connection may be granted based on evidence of (1) a current 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. 38 C.F.R. § 3.304. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Private records show treatment for degenerative disc disease in August 1999. In December 2001, the appellant reported that his low back and left lower extremity pain began when he was involved in a motor vehicle accident in 1997. He was seen in the Emergency Room, where plain films were taken; and he was sent home with pain medications. Magnetic Resonance Imaging (MRI) scans taken in June 1997 revealed small left posterocentral herniation of the L5-S1 disk, causing mass effect upon the thecal sac and left S1 nerve root. Private records, dated in June 1997, show an assessment of lumbar radicular pain secondary to injuries received in motor vehicle accident in April 1997. He reaggravated his pain symptoms in December 2001 after moving a heavy table, and pain radiated from the low back to the left lower extremity. Physical therapy provided limited improvement. In May 2013, the appellant reported that he did not go to the doctor after the "hard fall" in 1991; and even though he had some lower back pain, he did not feel it was that bad and did not really pay it a lot of attention. During the following years, the appellant reported that his back would feel tired and achy from standing too long or from leaning over; and that he self-treated his back pain with over-the-counter medications for years. He later underwent chiropractor care, physical therapy, corticosteroid injections, pain medications, and surgery. In May 2013, the appellant submitted a statement from a witness to the fact that the appellant fell out of the back of a "deuce and a half" during training camp in 1991; and that the appellant did not go to the doctor. Also in May 2013, the appellant's "Section Chief " in 1991 submitted a statement that he had seen the appellant fall out back of a "2 ½ ton" truck in 1991 annual training. In October 2015, one of the witnesses submitted further explanation, and indicated that the appellant complained time-after-time about his back, until the appellant left the unit in 1992. The witness added that they "never really had a sick call" because they were on guard training; and indicated that after the appellant left the unit, he was involved in a motor vehicle accident and re-injured his back. Pursuant to the July 2018 remand, the Agency of Original Jurisdiction (AOJ) underwent appropriate development in order to corroborate whether the appellant’s alleged back injury is attributable to an in-service or line-of-duty injury prior to April 1997—more specifically, a fall off a military vehicle in 1991. The appellant was then afforded an updated VA examination in October 2020. See VA Exam (Oct. 15, 2020). The examiner considered all pertinent evidence of record, including lay statements from fellow servicemembers who corroborated the appellant’s 1991 injury, see, e.g.: Lay Statements (rec’d May 21, 2013; Oct. 7, 2015), and concluded that it is at least 50 percent likely that the appellant’s degenerative arthritis of the thoracolumbar spine is attributable to either active duty or a line-of-duty injury during ACDUTRA. See VA Exam (Medical Opinion), at Section III. The Board concludes that the examiner’s opinion is entitled to significant probative weight, because the opinion clearly indicates that the examiner fully reviewed and considered all evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion…must support its conclusion with an analysis the Board can consider and weight against contrary opinion.”). (Continued on the next page)   Ultimately, this October 2020 opinion is positive in support of the appellant’s claim for service connection, and there is no contrary examination opinion of record that is dated after the July 2018 remand, and that could be weighed against the positive opinion of record. The Board would be prohibited from developing additional evidence for the purpose of obtaining evidence against a claimant’s case. See Mariano v. Principi, 17 Vet. App. 305 (2003). To the extent that any reasonable doubt may remain, the Board now resolves all remaining reasonable doubt in the appellant’s favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. The claims for service connection for degenerative arthritis of the thoracolumbar spine must be granted. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.