Citation Nr: 21032674 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-27 077 DATE: May 27, 2021 ORDER Entitlement to service connection for a lumbosacral spine disability is denied. FINDING OF FACT The record evidence shows that the Veteran does not experience any current disability due to her claimed lumbosacral spine disability which is attributable to active service. CONCLUSION OF LAW The criteria for service connection for a lumbosacral spine disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had a period of active duty training (ACDUTRA) in the U.S. Army from October 2011 to March 2012. She also had additional unverified U.S. Army National Guard service. A Travel Board hearing was held in August 2019 before a Veterans Law Judge and a copy of the hearing transcript has been added to the record. Because the Veterans Law Judge who conducted this hearing is no longer available to adjudicate this appeal, the Veteran was offered an opportunity to appear before a different Veterans Law Judge at a new hearing in March 2020. She did not respond. Thus, her hearing request is deemed satisfied. See 38 C.F.R. § 20.704 (2019). In July 2020, the Board remanded, in pertinent part, the currently appealed claim to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the AOJ schedule the Veteran for examination to determine the nature and etiology of her claimed lumbosacral spine disability. This examination occurred in December 2020. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In a March 2021 rating decision, the AOJ granted, in pertinent part, service connection for multiple hip and knee disabilities previously remanded by the Board in July 2020. Because the time period for initiating an appeal of this rating decision has not yet expired, these issues are no longer in appellate status. See Grantham v. Brown, 114 F .3d 1156 (1997). Because the Veteran lives within the jurisdiction of the RO in Newark, New Jersey, that facility has jurisdiction in this appeal. Entitlement to service connection for a lumbosacral spine disability The Board finds that the preponderance of the evidence is against granting the Veteran's claim of service connection for a lumbosacral spine disability. She essentially contends that she incurred a lumbosacral spine disability during active service and experienced continuous post-service disability. Contrary to these lay assertions, the record evidence shows instead that she does not experience any current disability due to her claimed lumbosacral spine disability which could be attributed to active service. The available service treatment records show that, at a pre-enlistment physical examination in September 2011, prior to her entry on to active service in October 2011, the Veteran denied all relevant pre-service medical history. She was discharged in March 2012 following a line of duty investigation which determined that she had incurred a pelvic stress fracture in the line of duty while on ACDUTRA in the Army National Guard. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting service connection for a lumbosacral spine disability. It shows instead that the Veteran does not experience any current disability due to her claimed lumbosacral spine disability which is related to active service. The Board notes that, because it previously found a February 2014 VA examination and opinion to be inadequate for adjudication purposes in the July 2020 remand, this evidence was not reviewed or relied upon in adjudicating the currently appealed claim. On VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ) in December 2020, the Veteran's complaints included dull low back pain "which occurs after sitting for a long period of time or after a long" drive. The VA examiner reviewed the Veteran's electronic claims file, including her service treatment records and post-service VA treatment records. The Veteran experienced difficulty in bending forward and lifting or carrying items weighing over 30 pounds due to her low back pain. She denied experiencing flare-ups of low back pain or functional loss or impairment. Range of motion testing was completely normal with pain not causing functional loss and no additional limitation of motion after repetitive testing. Physical examination showed 4/5 muscle strength on hip flexion and otherwise 5/5 muscle strength, normal reflexes, and negative straight leg raising bilaterally. X-rays showed no arthritis. There was no objective evidence of pain in non-weight bearing. The VA examiner concluded that the Veteran's thoracolumbar spine was normal. This examiner also stated that it was likely that the Veteran's reported low back pain "is referred pain from the hip condition." This examiner further concluded that the Veteran did not have and had never been diagnosed as having a thoracolumbar spine condition. This examiner opined that it is less likely than not that the Veteran's claimed lumbosacral spine disability is related to active service. The rationale for this opinion was that the Veteran's physical examination was normal and there was no diagnosis for a lumbosacral spine disability. The rationale also was, "The low back pain is likely a referred pain from the hip/groin condition." A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced a lumbosacral spine disability at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no evidence other than the Veteran's unsupported lay assertions that she experiences current disability due to her claimed lumbosacral spine disability which could be attributed to active service. The Board recognizes that the December 2020 VA examiner concluded that the Veteran's complaint of low back pain "is likely a referred pain from the hip/groin condition." Because the Veteran denied experiencing functional loss or functional impairment as a result of a lumbosacral spine disability at this examination, her noted complaint of low back pain does not rise to the level of functional impairment such that service connection is warranted even under the low threshold of Saunders. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (finding that service connection is warranted for complaints of pain which result in functional impairment). More importantly, the December 2020 VA examiner specifically opined that it is less likely than not that the claimed lumbosacral spine disability is related to active service. This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Veteran otherwise has not identified or submitted any evidence demonstrating her entitlement to service connection for a lumbosacral spine disability. In summary, the Board finds that service connection for a lumbosacral spine disability is not warranted. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.