THORACOLUMBAR OR LUMBAR SPINE LIMITATION OF MOTION

Summary

The Veteran, an Army veteran who served from August 1980 to August 2000, appealed the denial of service connection for a low back disability. The initial claim was filed in September 2017, following an intent to file in June 2017. The agency of original jurisdiction (AOJ) denied the claim in January 2018. The case went through several appeals and reviews, including a Higher-Level Review and a Board remand in July 2025 for further evidentiary development. Following the remand, the AOJ issued a September 2025 rating decision, awarding service connection for a low back lumbosacral strain, directly related to service, based on a positive nexus opinion from a VA examiner in August 2025. The AOJ assigned a 20 percent rating effective December 20, 2021. The Board, acknowledging the AOJ's grant of service connection, found no outstanding controversy. To resolve the appeal, the Board re-granted service connection for the low back disability, establishing the effective date as June 1, 2017, the date of the Veteran's intent to file, in accordance with 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400, viewing the evidence favorably to the Veteran.

Rationale

Positive nexus opinion from VA examiner; Service connection established as directly related to service; Awarded 20 percent rating effective December 20, 2021

Full Decision Text

Citation Nr: A26040207
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 220727-262149
DATE: April 29, 2026

ORDER

Effective June 1, 2017, entitlement to service connection for a low back disability is granted.

FINDINGS OF FACT

1. An intent to file a claim was received on June 1, 2017.  Within one year of the intent to file, a claim of service connection for a low back disability was received on September 26, 2017.  

2. Service connection for a low back disability was awarded in a September 2025 rating decision as directly related to service.  

CONCLUSION OF LAW

Effective June 1, 2017, the criteria for service connection for a low back disability are met.  38 U.S.C. §§ 1110, 1131, 5100, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty in the United States Army from August 1980 to August 2000.  This matter comes to the Board of Veterans' Appeals (Board) from a June 2022 rating decision by an agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA).  

In a July 2022 Notice of Disagreement, the Veteran elected an appeal to the Board, using the hearing docket.  On the hearing docket, the Board considers the same record as that considered by the AOJ, as well as evidence submitted at a Board hearing and during the 90-day period following the hearing.  38 C.F.R. § 20.302. 

The Veteran appeared for the scheduled April 2026 hearing before the undersigned Veterans Law Judge (VLJ) but cancelled the hearing following a pre-hearing conference. 

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

The evidence of record reflects that the Veteran submitted an intent to file on June 1, 2017, which was followed by a claim of service connection for a low back disability in a Fully Developed Claim (VA 21-526EZ) on September 26, 2017.  The AOJ, in a January 2018 rating decision, denied the claim.  The Veteran submitted a notice of disagreement under the Legacy appeal system in February 2018, and a Statement of the Case (SOC) was rendered in March 2020.  

In May 2020, the Veteran filed a VA Form 9.  Thereafter, in June 2020, the AOJ informed the Veteran that his VA Form 9 was untimely.  The Veteran, in March 2021, submitted a Request for Higher-Level Review (VA 20-0996).  Following a Higher-Level Review informal conference in June 2021, an adverse rating decision was issued by the AOJ that same month.  The rating decision was issued pursuant to the new appellate system under the Appeals Modernization Act (AMA).  

The Veteran, in June 2021, elected an appeal to the Board through a Notice of Disagreement (VA Form 10182).  While the issue of timeliness of the Veteran's May 2020 VA Form 9 was pending before the Board, the Veteran submitted a December 2021 Supplemental Claim (VA 20-0995) to the January 2018 rating decision that denied service connection for a low back disability.  

The AOJ, in the June 2022 rating decision on appeal, confirmed and continued the previous denial of service connection for a low back disability.  The Veteran elected an appeal to the Board in a July 2022 Notice of Disagreement (VA Form 10182).  

The Board, in an August 2024 decision, found the May 2020 VA Form 9 to be timely.  As the substantive appeal
 While the issue of timeliness of the Veteran's May 2020 VA Form 9 was pending before the Board, the Veteran submitted a December 2021 Supplemental Claim (VA 20-0995) to the January 2018 rating decision that denied service connection for a low back disability.  

The AOJ, in the June 2022 rating decision on appeal, confirmed and continued the previous denial of service connection for a low back disability.  The Veteran elected an appeal to the Board in a July 2022 Notice of Disagreement (VA Form 10182).  

The Board, in an August 2024 decision, found the May 2020 VA Form 9 to be timely.  As the substantive appeal was timely, the Board granted reinstatement of the underlying appeal.  Thereafter, in July 2025, the Board remanded the issue of entitlement to service connection for a low back disability for further evidentiary development.  The AOJ, in a September 2025 rating decision, awarded service connection for low back lumbosacral strain.  In its award of service connection, the AOJ determined that service connection was established as directly related to service, which was predicated upon a positive nexus opinion rendered by an August 2025 VA examiner.  The AOJ assigned an initial 20 percent rating, effective December 20, 2021, the receipt date of the Veteran's Supplemental Claim.  

As it therefore appears that there is no outstanding question or controversy regarding service connection to be resolved, dismissal would seem the appropriate remedy.  However, to avoid further unproductive litigation, the Board will simply re-grant service connection with the proper effective date, fully satisfying the appeal.

The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400.  Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  See 38 U.S.C. § 5110(a).

In analyzing the record, and in the interest of viewing the evidence in a light most favorable to the Veteran, the Board finds that the appropriate date for the award of service connection for a low back disability is June 1, 2017, the receipt date of the Veteran's intent to file.  38 C.F.R. § 3.400.  

The Board finds that the Veteran's claim of service connection for a low back disability has been continuously pursued from his June 2017 intent to file (formalized by the September 2017 Fully Developed Claim) until it was ultimately granted by the AOJ in September 2025.  Indeed, it was the Board's July 2025 remand under the Legacy appeal system that directed the AOJ to obtain the consequent August 2025 VA medical opinion.  The face of the September 2025 rating decision noted such.  Therefore, service connection for a low back disability is warranted from June 1, 2017.  

 

 

WILLIAM H. DONNELLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G.A. Ong, 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.