Citation Nr: 21014888 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-38 979A DATE: March 16, 2021 ORDER Service connection for a lumbar spine disability is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, his lumbar spine disability began during a qualifying period of active service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2000 to May 2001. From May 2000 to April 2008 the Veteran had reserve service. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Board remanded the Veteran’s claim for additional development, to include conducting further search for the Veteran’s service records. In July 2020, the RO issued a supplemental statement of the case (SSOC), noting its efforts to obtain the Veteran’s service records, but again denying the claim. In November 2020, the Board issued another remand decision noting that subsequent to the issuance of the SSOC, private treatment records relevant to the Veteran’s back disability were obtained, and that the Veteran did not waive initial consideration of the records by the Agency of Original Jurisdiction (AOJ). In January 2021, the RO issued an SSOC, taking into consideration the additional medical evidence but again denying the claim. The Board notes at the outset that despite the above development, there still appear to be gaps in the evidence of record regarding the dates and locations of the periods when the Veteran was on active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) during his entire service in the Army Reserve. While some service treatment records (STRs) have been added to the claims file, VA previously determined the Veteran’s complete Personnel and Service Treatment Records to be unavailable, and the most recent search for such records resulted in a conclusion that the Veteran’s service treatment records were unavailable for the relevant time period. Under such circumstances, the United States Court of Appeals for Veterans Claims (Court) has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). As such, the Board’s analysis has been undertaken with the heightened obligation set forth in Cuevas and O’Hare in mind. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1110. Certain chronic diseases, including arthritis and diseases of the nervous system, will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). However, presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). The Veteran asserts that his lumbar spine disability is due to his active service. Specifically, he asserts that he first injured his back in Egypt during Operation Bright Star while he was erecting some large pavilion type tents, and that he injured his back in April 2002 during a monthly drill training. The evidence of record shows that the Veteran has a current lumbar spine disability. The evidence of record shows that he has also been diagnosed with mild facet arthropathy. As noted above, arthritic conditions are included under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. STRs show that at his enlistment physical, the Veteran did not have a lumbar spine condition. As noted earlier, there are few available STR records during the Veteran’s period of active service, however, the next available Report of Medical Examination (dated December 2005) shows that the Veteran reported lower lumbar pain, muscle spasm, and decreased range of motion. He was noted to have had recurrent back pain over the past four to five. The Veteran was placed on a permanent profile for low back pain with spasms. While the evidence of record lacks detail about the exact timing and extent of his claimed lumbar spine disability, based on these STRs and resolving all reasonable doubt in his favor, the Board finds that the onset of the Veteran’s lumbar spine disability would have been in 2000 or 2001 – after his enlistment but during his period of active service.. This onset timing is also supported by private medical treatment records from May 2003. His physician reported that the Veteran had “pain about 2 or 3 years ago [that] never really went away.” According to diagnostic imaging conducted in May 2003, the Veteran already had degenerative disc changes of his lumbar spine. Even if this does not show that the Veteran’s lumbar spine disability manifested to a compensable degree within a year of active service, the record on the whole supports a finding that he had continuous symptoms related to the condition since active duty. Given the unavailability of more clear records, the Veteran’s current diagnosis of lumbar spine arthritis, the evidence that his lumbar spine was likely injured during active service, and that he exhibited symptoms of a presumptive disease since his release from active duty, the Veteran’s claim meets the requirements of presumptive service connection under 38 C.F.R. § 3.303(b). Accordingly, and resolving all reasonable doubt in his favor, the Board finds that service connection for a lumbar spine disability is warranted. 38 U.S.C. § 5107; Cuevas, 3 Vet. App. at 548; O’Hare, 1 Vet. App. at 367 (1991); 38 C.F.R. § 3.102. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hart, 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.