Citation Nr: 21040976 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 11-18 407 DATE: July 7, 2021 ORDER Entitlement to service connection for a lumbar spine disability is granted. FINDING OF FACT The Veteran's lumbar spine disability is etiologically related to service. CONCLUSION OF LAW The criteria to establish service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1972 to February 1975, with additional Reserve service. In a June 2015 decision, the Board denied reopening the Veteran's claim of entitlement to service connection for a lumbar spine disability, finding that new and material evidence had not been submitted. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). In a September 2017 Memorandum Decision, the Court vacated the Board's June 2015 decision and remanded the case to the Board for further proceedings consistent with the Memorandum Decision. Subsequently, the Board remanded the case in May 2018 for further development. The case has returned to the Board for further appellate proceedings. A Board hearing was held in March 2015. A transcript is of record. A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran has a diagnosis of degenerative arthritis of the spine, intervertebral disc syndrome (IVDS), spinal fusion, and spinal stenosis. See December 2019 VA examination report. Accordingly, the first Shedden element is met. The Veteran contends that while he was on a period of ACDUTRA in July 1991 at Fort Polk, he was flipping over a heavy tent and preparing to erect the tent when he felt sudden pain in his lower back. He sought treatment and was thereafter placed on light duty for the duration of his two week training period. See hearing transcript at 4-6, see also December 2019 VA examination report. The record reflects that the Veteran had a post injury CT scan performed in July 1991. See July 1991 service treatment record (STR). The treatment record noted a "very suspicious herniated disc at L4-L5 more prominent on the right...There is facet arthritis noted at S1 on the left side." Id. The Veteran was noted to have pain in the back and leg. Id. The May 2018 Board decision remanded the case to attempt to verify the Veteran's precise duty status at the time of the claimed injury in July 1991, including pay records from Defense Finance Accounting Service (DFAS). See May 2018 Board remand. A January 2021 correspondence from VA indicated that the Veteran's pay records from July 1991 could not be located, as DFAS did not respond to any of VA's requests. See January 2021 VA correspondence. July 2020 correspondence from VA indicated that the Veteran's STRs from his reserve period from 1984 to 1993 were requested; however, the National Personnel Records Center (NPRC) responded stating that all available STRs were uploaded. See July 2020 VA correspondence. Thus, attempts to further verify the Veteran's duty status in July 1991 have proved futile. Where service records are destroyed or missing, the Board has a heightened obligation to explain its findings and conclusions, and carefully consider the benefit of the doubt rule. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). Here, the Board finds no reason to find the Veteran not credible; there is simply no evidence in the record that the Veteran is being deceptive in asserting that the injury he suffered in July 1991 occurred while he was on ACDUTRA. The Veteran's account of the injury has been consistent as early as October 2004. See October 2004 Statement in Support of Claim. Moreover, the Board finds it persuasive that there is an official government STR entry documenting back pain from July 1991, the date of the reported injury, with an accompanying CT scan. See July 1991 STRs. The July 1991 STR also notes that the Veteran had upcoming leave later that month, seeming to indicate that he was currently on duty status at the time of the encounter, thus supporting the Veteran's contention that his back injury in July 1991 was incurred during a period of ACDUTRA. Given the treatment documented in his official STRs in July 1991, and the Veteran's credible account of the injury, the Board resolves reasonable doubt in favor of the Veteran and finds that his described back injury did in fact occur during a period of ACDUTRA. Therefore, the second Shedden element has been met. A December 2019 VA examiner opined that the Veteran's lumbar spine disability is at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. See December 2019 VA examination report. The examiner reasoned that the Veteran had no issues related to low back pain prior to military service, referenced the Veteran's CT scan in his STRs from July 1991, and concluded that given the irrefutable time stamped CT results that indicate a spinal abnormality, the Veteran's lumbar spine condition is at least as likely as not related to his described injury in service. Id. The examiner further addressed the Veteran's later 1996 work-related back injury. He stated that when he compared the lumbar spine CT scans, he found no significant changes and thus no differentiated pathology. Therefore, given that the Veteran initially reported pain in 1991 and a CT scan substantiates his claim to a related, reported condition, the examiner ultimately concluded that the 1996 low back injury, at best, exacerbated the previous 1991 injury. See December 2019 VA examination report. In sum, confirming that the Veteran's current lumbar spine disability was indeed initially caused by the injury in service, not the later 1996 on the job back injury. Therefore, the Board finds the positive medical opinion of record probative as to the nexus element. As a result, there is expert evidence of record establishing a link between the Veteran's lumbar spine disability and his time in service. Accordingly, the Board grants service connection for a lumbar spine disability. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.