Citation Nr: 22014922 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 17-46 784 DATE: March 15, 2022 ORDER Entitlement to service connection for a back disability is denied. FINDING OF FACT The Veteran's back condition did not onset in service and was not causally related to service; the evidence does not show a "chronic disease" in service or "continuity of symptoms" after service. CONCLUSION OF LAW The criteria for service connection for back condition have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1973 to August 1974. Sadly, the Veteran passed in July 2020, during the pendency of his appeal. The AOJ has recognized the Veteran's surviving spouse on a substituted basis. 38 U.S.C. §5121A; Breedlove v. Shinseki, 24 Vet. App. 7 (2010); December 2020 Correspondence. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). As a preliminary matter, the Board acknowledges that the RO deemed the Veteran's service treatment records (STRs) unavailable after exhaustive efforts to secure them were unsuccessful. In cases where the STRs are unavailable, the Board has a heightened duty to assist the Veteran in the development of his claim. Cuevas v. Principi, 3 Vet. App. 542 (1992). The Board remanded the claim in March 2019 so that the RO could request copies of the Veteran's STRs and service personnel records from the appropriate facility for the Texas National Guard. It was noted that the Veteran had identified his unit in a September 1977 correspondence. On remand, the RO received a response from the service department in March 2020 that all available STRs from the Department of Defense had been uploaded into the Veterans Benefits Management System (VBMS). A follow-up communication from the RO in April 2020 noted that there had not been any records uploaded into VBMS. A confirmation of records sent for upload or a negative response for records was requested. After the Veteran passed away in July 2020, the Veteran's surviving spouse was substituted as the claimant in the appeal in December 2020. In January 2021, the RO sent the appellant the list of actions made in attempting to obtain the Veteran's STRs with no response received from the service department. The RO noted that they had determined that the records could not be located and were therefore unavailable for review. The Board, in pertinent part, remanded the claim again in October 2021, this time for a VA medical opinion. As for substantial compliance with the Board's March 2019 and October 2021 remands, the record shows the RO tried several times to obtain the Veteran's STRs but was unsuccessful and made a determination that they were unavailable. Further, the appellant was notified that these records were unavailable. The RO also provided a VA medical opinion in November 2021 addressing the etiology of the Veteran's lumbar spine disability, which is adequate to adjudicate the appeal, as discussed in more detail below. Accordingly, the Board finds that the RO has substantially complied with the instructions of the prior remands. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998), where there was substantial compliance with the Board's remand instructions). In a December 2021 rating decision, service connection for a left ankle condition (which had been an issue remanded by the Board) was granted. This represents a full grant of the benefits sought, and the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record contains no indication that the appellant has disagreed with the initial rating or effective date assigned, thus, those matters are not in appellate status. See Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Service Connection 1. Entitlement to service connection for a back disability is denied. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran alleged that his spine condition began during service and has existed since that time. Following the March 2019 Board decision, the Veteran was asked to complete a General Release for Medical Provider Information in October 2019. The form was not completed, and the Veteran passed during the pendency of the appeal in July 2020. There are no medical treatment records or VA examinations of record to indicate a diagnosis of a back condition. In a December 2016 statement, however, the Veteran stated that he had recurring back pain since his time in service. He stated that he fell off a truck while in the military and that he had been self-treating the back pain with heating pads and over the counter medication. In November 2021 a VA examiner provided a retrospective opinion on what the Veteran's back diagnosis may have been and whether it was etiologically related to service. The examiner reviewed the claims file in its entirety, and acknowledged the lack of STRs and VA examinations. He noted the lack of post-service treatment records for any back condition. The examiner also noted that the Veteran did not provide any back diagnosis provided to him by a physician in his statements and that there were no civilian or VA records showing a diagnosis or physical examination findings. The examiner then listed some diagnoses that would result in lower back pain such as arthritis of the spine, back injuries, and herniated discs. The examiner found that based on the fact that lower back pain is a common complaint, and at the Veteran's age, it was more likely than not that the Veteran had degenerative disc disease of the lumbar spine due to natural aging rather than the in-service fall. The examiner stated that had the Veteran had a severe back injury in service it was expected that he would have sought treatment for the symptoms within the 45 years following service. As there were no records of visits, diagnosis, or radiologic evidence, the examiner used inductive reasoning to diagnose the Veteran. Degenerative disc disease is known to occur with advancing age. As such, the examiner determined that age was a more likely cause of the Veteran's condition and the examiner denied nexus. The Board finds this opinion probative evidence as it is provided upon review of the relevant facts (to include lay statements of symptomatology that the Board found probative) and is supported by explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). As there is no probative evidence of nexus of record, and no medical evidence to support entitlement to service connection, the claim must be denied. (Continued on the next page) Accordingly, the claim is denied. As there is not an approximate balance of positive and negative evidence, there is no doubt to resolve. 38 U.S.C. § 5107 (b). SARAH B. RICHMOND Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.