Citation Nr: 1127363 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 08-01 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a lumbosacral spine disability. 2. Entitlement to service connection for hemorrhoids. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from February 1962 to March 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A Travel Board hearing was held at the RO in October 2010 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The issue of entitlement to service connection for a bilateral hip disability has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board notes that the Veteran testified at his October 2010 hearing that he intended to file a claim of service connection for a bilateral hip and/or pelvis disability. The Board also notes that a claim of service connection for pelvic stress fractures currently is being developed at the RO. To the extent that the Veteran's claim of service connection for a bilateral hip disability is different from the claim of service connection for pelvic stress fractures currently being developed at the RO, the Board does not have jurisdiction over this claim and it is referred to the AOJ for appropriate action. If, however, the RO concludes that the claim of service connection for a bilateral hip disability is the same as the claim of service connection for pelvic stress fractures currently being developed, then no additional action is required beyond what is necessary for the claim already underway. FINDINGS OF FACT 1. The Veteran's service personnel records, to include his DD Form 214, show that his military occupational specialty (MOS) was medical specialist and he received training as a medical corpsman and parachutist during service. 2. The Veteran's "Individual Jump Record" (DA Form 1307), included in his service personnel records, shows that he completed at least 21 parachute jumps during service between August 1962 and September 1964. 3. The competent evidence shows that the Veteran's lumbosacral spine disability is related to active service. 4. In testimony at his Board hearing on October 28, 2010, prior to the promulgation of a decision in this appeal, the Veteran requested a withdrawal of his appeal with respect to the denial of his service connection claim for hemorrhoids. CONCLUSIONS OF LAW 1. A lumbosacral spine disability was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304 (2010). 2. The criteria for withdrawal of an appeal by the appellant have been met on the issue of entitlement to service connection for hemorrhoids. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants entitlement to service connection for a lumbosacral spine disability which constitutes a complete grant of the Veteran's claims. Therefore, no discussion of VA's duty to notify or assist is necessary. Service Connection for a Lumbosacral Spine Disability The Veteran contends that his current lumbosacral spine disability is related to active service. He specifically contends that his in-service duties as a parachutist required him to make frequent parachute jumps during and after his airborne training and caused him to injure his lumbosacral spine during active service. He also specifically contends that he continued to experience lumbosacral spine disability after his service separation. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease 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). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Board finds that the evidence supports granting the Veteran's claim of service connection for a lumbosacral spine disability. The competent evidence supports the Veteran's assertions and Board hearing testimony that he injured his lumbosacral spine during active service as a result of multiple in-service parachute jumps and his current lumbosacral spine disability is related to service. The Veteran's DD Form 214 shows that he was awarded the Parachutist Badge and his military occupational specialty (MOS) was medical specialist. The Veteran's DD Form 214 also shows that he attended Airborne School and completed the Basic Airborne course between July and August 1962. He received training as a medical corpsman between November 1963 and February 1964. The Veteran's service personnel records (DA Form 20) confirm his basic airborne training in July and August 1962. The Veteran's DA Form 20 also shows that his principal duties included ambulance driver, medical specialist, and aid man. These records also indicate that the Veteran was assigned to the 1st Airborne Battle Group, 502nd Infantry, during active service. An "Individual Jump Record" (DA Form 1307) included in the Veteran's service personnel records shows that he completed at least 21 parachute jumps during active service between August 1962 and September 1964. Several of these jumps involved combat equipment or were mass tactical jumps. The Veteran's service treatment records show no complaints of or treatment for a lumbosacral spine disability at any time during active service. The Veteran's spine was normal on clinical evaluation at his enlistment and separation physical examinations. The post-service evidence demonstrates that the Veteran experiences current lumbosacral spine disability which is related to active service. Private x-rays of the Veteran's lumbar spine taken in December 2003 showed osteopenia of the lumbar spine. A private magnetic resonance imaging (MRI) scan of the Veteran's lumbar spine taken on April 6, 2005 showed extensive facet degenerative change at L3-4, L4-5, and L5-S1 which caused bilateral neural foraminal narrowing and Grade I anterolisthesis of L4 on L5. A private MRI taken on April 14, 2005, showed a synovial cyst at L4-5 on the right which contacted and compressed the exiting nerve root, broad based disc bulges throughout the lumbar spine with the most prominent one at L4-5 which caused bilateral neural foraminal narrowing, and diffuse lumbar spondylosis and facet degenerative change. On private outpatient treatment on June 8, 2005, the Veteran's complaints included back pain. He reported that he had been pressure washing approximately 2 months earlier when he developed sudden onset of severe back pain. His pain radiated in to both legs. He experienced pain down the right leg when he raised his right arm. He also reported numbness going in to both legs. Any activity exacerbated his symptoms. He reported that "he may have injured his back in the military. He was a paratrooper and made at least twenty-five jumps." Physical examination showed no antalgic gait and an ability to do heel and toe walking without difficulty. Physical examination of the lumbosacral spine showed no spasm, atrophy, or fasciculation, significant tenderness to palpation of the lumbosacral facets bilaterally, negative straight leg raising, pain and diminished range of motion in extension of the lumbosacral spine, pain with lateral bending and rotation, and normal muscle tone and strength. The impressions were synovial cyst at L4-5 producing spinal stenosis, mostly on the right, and bilateral facet arthropathy at L4-5. On June 9, 2005, the Veteran had a lumbar hemilaminectomy with partial medial facetectomy and removal of a synovial cyst at L4-5 on the right. The pre- and post-operative diagnoses were synovial cyst at L4-5 on the right producing spinal stenosis with mild degenerative spondylolisthesis. On private outpatient treatment in July 2005, it was noted that the Veteran was "doing quite well" 3 weeks postoperatively. The Veteran stated that he had taken no medication postoperatively and currently had no leg pain. The impression was status-post "MELD" at L4-5 on the right. A private MRI scan of the lumbar spine taken in August 2006 showed interval surgery in the right facet at L4-5 with removal of a previously described small synovial cyst, moderate persistent edema in the facets bilaterally at L4-5 similar to a previous examination, mild spinal stenosis from mild disc protrusion, mild hypertrophic changes, and mild degenerative changes throughout the lumbar spine. In an April 2007 letter, Ulises Carabello, M.D., stated that, with the Veteran's history of low back pain, disc protrusion, and degenerative changes, these degenerative changes and chronic back pain "could be attributed and contributing factor of jumping from an airplane." The Board notes that current regulations provide that service connection may not be based on a resort to speculation or even remote possibility. See 38 C.F.R. § 3.102; Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); and Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Accordingly, even if Dr. Caraballo's April 2007 opinion is viewed in the light most favorable to the Veteran, this evidence does not establish service connection for a lumbosacral spine disability. Following private MRI scan of the Veteran's lumbar spine taken in March 2010, the impressions were progression of hypertrophic degenerative changes at L4-5 with new Grade I anterolisthesis of L4 on L5 which resulted in worsening canal stenosis (now moderate/severe), worsening lateral recess effacement, and mass effect upon the transiting nerve roots on the left. No other significant change was noted. Dr. J. Garcia-Bengochea stated in a May 2010 opinion that the Veteran had a history of low back pain, "progressively worse for the past several months." The Veteran's pre-operative MRI scan, taken before unrelated left foot surgery, showed a Grade I degenerative spondylolisthesis with moderate spinal stenosis. There also appeared to be a broad-based disc herniation extending out in to the left neural foramen under the facet. Dr. Garcia-Bengochea stated that he believed that the Veteran's chronic low back pain was as a result of the Veteran jumping out of airplanes during active service. The Veteran testified at his October 2010 Board hearing that he made at least 25 parachute jumps during active service. This is in accord with his DA Form 1307 which shows that he made at least 21 parachute jumps during active service. He also testified that, to remain qualified as a parachutist in the U.S. Army airborne service, he had to make at least 1 parachute jump every 90 days during active service. He testified further that his back was not examined during his separation physical examination. He also testified further that he had been treated for a variety of low back problems since his service separation and had undergone back surgery in 2005. He denied experiencing any low back injuries since service. The Veteran finally waived RO jurisdiction over all evidence submitted to VA since the October 2007 Statement of the Case. The Board acknowledges the Veteran's assertions and hearing testimony that multiple parachute jumps during active service led to his current lumbosacral spine disability. The competent evidence (in this case, the Veteran's service personnel records and his post-service private treatment records) supports these assertions. The Veteran's service personnel records clearly show that he participated in at least 21 parachute jumps throughout his period of active service and earned the Parachutist Badge while a member of the U.S. Army airborne service. The Veteran also received medical training during active service, so his statements concerning in-service back injuries are entitled to significant probative weight. More importantly, the Veteran's post-service private treatment records show that his current lumbosacral spine disability is related to his in-service parachute jumps. There is no competent opinion of record contrary to the positive nexus opinion provided by Dr. Garcia-Bengochea in May 2010, an opinion which the Board finds persuasive on the issue of whether the Veteran's current lumbosacral spine disability is related to active service. The Veteran also testified credibly at his October 2010 Board hearing concerning his in-service parachute jumps and the contended etiological relationship between his current lumbosacral spine disability and active service. In summary, the Board finds that service connection for a lumbosacral spine disability is warranted. Withdrawal of Claim As noted in the Introduction, in the currently appealed rating decision issued in April 2007, the RO denied the Veteran's service connection claim for hemorrhoids. The Veteran has perfected a timely appeal with respect to this claim. In testimony at his October 28, 2010, Board hearing, prior to the promulgation of a decision in this appeal, the Veteran requested that his appeal be withdrawn with respect to this claim. The Board observes that it may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2010). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Given the Veteran's October 2010 Board hearing testimony requesting withdrawal of his appeal for service connection for hemorrhoids, there remain no allegations of errors of fact or law for appellate consideration with respect to this claim. Accordingly, the Board does not have jurisdiction to review this claim and it is dismissed. ORDER Entitlement to service connection for a lumbosacral spine disability is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to service connection for hemorrhoids is dismissed. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs