Citation Nr: 21032832 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 18-00 752 DATE: May 28, 2021 ORDER Entitlement to service connection for a back disability is granted. REFERRED The Veteran requested a copy of his claims file in a March 2020 correspondence to the Department of Veterans Affairs (VA). However, the Board finds the request remains unfulfilled. The Board notes this is not prejudicial to the Veteran in the present claim because the entitlement sought on appeal is herein granted. Nonetheless, the Veteran's request, as outlined in his March 2020 correspondence, is referred to the Regional Office (RO) for appropriate action. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the Veteran's back disability had its onset in service and has continued since that time. CONCLUSION OF LAW The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the Army from July 1967 to April 1969, including service in the Republic of Vietnam. The Board would like to thank the Veteran for his sacrifice and exemplary service to our nation. The matter comes before the Board of Veterans Affairs (Board) from September 2015 and September 2016 rating decisions of the VA Regional Office. In the January 2018 substantive appeal, the Veteran requested the opportunity to testify at a hearing held before a Veterans Law Judge. This hearing was scheduled for October 2019. See Veteran's Correspondence, June 2019. However, the Veteran did not appear at the October 2019 hearing. The Board acknowledges that the Veteran's representative contacted the RO by telephone, on the same day of the hearing, to request rescheduling. However, requests for a change in a hearing date may be made at any time up to two weeks prior to the scheduled date of the hearing if good cause is shown and such requests must be in writing, must explain why a new hearing date is necessary, and must be filed with the Board. 38 C.F.R. § 20.704(c). Here, the Board finds that the Veteran's same day request to reschedule his hearing by telephone does not meet the threshold criteria for rescheduling under 38 C.F.R. § 20.704(c). As such, the request for a Board hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). In any event, to avoid further delay in this matter, the Board finds that a remand to provide the Veteran with another personal hearing is not necessary, where his claim has been granted by this decision and further testimony is not required. Therefore, it is not prejudicial to the Veteran. Lastly, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b)(1). Entitlement to service connection for a back disability The Veteran contends that he developed his current back disability after an enemy rocket attack hit his position while engaged in combat in the Republic of Vietnam. Reportedly, the Veteran's back pain has remained symptomatic since his time in service. To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis, may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Alternatively, if a chronic condition is not noted during service, then, generally a showing of continuity of symptomatology after service is required for service connection, if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Turning to the evidence it is not in dispute that the Veteran has a current back disability. See March 2015 VA examination. Therefore, the Veteran has met the first condition for service connection, a current disability. The Veteran's service treatment records (STR's) show multiple complaints of and treatment for recurrent back pain during his military career. Specifically, the record shows onset of his recurrent back condition beginning in August 1968, after suffering a rocket attack on his position, while engaging the enemy in Vietnam. See e.g., Chronological Care Medical Notes, dated May 1968, September 1968, October 1968; see also Veteran's Sworn Statement dated October 1968 (withdraws from Officer Candidate School (OCS) due to back pain after rocket attack). The Veteran's separation physical examination in April 1969 shows he reported recurrent back pain upon leaving service. Tellingly, the examiner confirmed the Veteran's complaints of back pain stemmed from injuries suffered during the August 1968 rocket attack in Vietnam. Moreover, the examiner opined that the Veteran has had "chronic moderate symptoms" of back pain since the August 1968 rocket attack. Following service discharge, the Board finds the Veteran continued to seek treatment for his back disability and he credibly and consistently reported that his back pain began after suffering an injury in service from the rocket attack. See e.g., December 1983 Private Opinion of Dr. E.B.L.; February 1984 Report from Orthopaedic Associates of Princeton; April 1984 VA Examination; January 2014 Report from Dr. B.D.K.; see also February 2014 Statement in Support of Claim (Veteran reports the rocket blew up right behind him and that his back has never been the same since service and has gotten worse over the years). The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Here, the Board notes that the Veteran's testimony and lay statements consistently and credibly indicate that he sustained trauma to his back as an infantryman in Vietnam and sought treatment while in service. Post-service treatment records show that the Veteran sought treatment for his back as early as 1979 and that his back became progressively worse over time since service. Additionally, the Veteran consistently reported onset of symptoms since the in-service injury to his back. (Continued on the next page) The Board finds the Veteran's service record as an infantryman, along with his service and post-service medical treatment records, statements made by treating physicians in the record, as well as lay statements made by the Veteran of his symptoms, to be competent, credible and highly probative in this matter. As such, all reasonable doubt is resolved in the Veteran's favor and the claim is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Davidson 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.