Citation Nr: 1127718 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 04-08 670 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a cervical spine disability, to include protruding discs of the cervical spine with radiculopathy. 2. Entitlement to service connection for a lumbar spine disability, to include arthritis of the lumbar spine with radiculopathy. 3. Entitlement to service connection for varicose veins of the left leg. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1958 to March 1978. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2002 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran filed a Notice of Disagreement with his rating and subsequently perfected an appeal. In July 2009, the Board remanded the case for additional development. This development has now been completed and the case returned to the Board for further appellate review. Additionally, the Veteran was afforded a video conference hearing before the undersigned Veterans Law Judge in May 2009. A written transcript of that hearing was prepared and incorporated into the evidence of record. FINDINGS OF FACT 1. The evidence demonstrates it is likely that the Veteran's currently diagnosed cervical spine disability is related to his active service. 2. The evidence demonstrates it is likely that the Veteran's currently diagnosed lumbar spine disability is related to his active service. 3. The evidence demonstrates it is likely that the Veteran's currently diagnosed varicose veins of the left leg are related to his active service. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for a cervical spine disability have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). 2. The criteria for a grant of service connection for a lumbar spine disability have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). 3. The criteria for a grant of service connection for varicose veins of the left leg have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection 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.A. §§ 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). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a Veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2010). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. A. Cervical and Lumbar Spine Disabilities The Veteran asserts that his cervical and lumbar spine disabilities are related to his active service. Specifically, the Veteran contends that he injured his neck and back when he landed poorly from a parachute jump while in-service. The Veteran's service treatment records show that he complained of and was treated for a back strain and back pain. Treatment records show that in August 1967, the Veteran was found physically fit for airborne training. Additionally, the records show that the Veteran was treated for injuries he received during training, at which time the doctor suggested that the Veteran stop parachute jump school. Furthermore, the Veteran's service records contain his Jump Record. The report noted that the Veteran performed three parachute jumps in August 1967, in Phan Rang, Vietnam. The record also contains VA outpatient treatment records that show treatment for the Veteran's neck and back pain. Furthermore, the Veteran reported to VA physicians that he injured his back in a parachute jump in August 1967. Moreover, he consistently reported throughout his treatment that his neck and back pain began in-service and continued time, with his symptoms becoming more intense in the recent years. June 2002 private treatment records show that the Veteran was seen by an orthopedist for cervical pain. The doctor noted that the Veteran's MRI demonstrated a disc bulge at C5-C6 with some neuroforamenal narrowing, and a bulging disc at C4-C5 and C6-C7. Additionally, the doctor noted that the Veteran was put on medication for his cervical pain. The Veteran had cervical and lumbar spine MRIs performed in June 2006. The images showed that the Veteran had spondylosis at C5-C6 and C6-C7, and degenerative disc disease of the cervical spine without significant compromise of the spinal cord or neuroforamina. Additionally, it was found that the Veteran had mild bilateral foraminal stenosis at L4-L5, and mild degenerative disc disease of the lumbar spine. The Veteran submitted a January 2006 letter from his treating VA doctor. The doctor noted that he saw the Veteran as a new patient in January 2006. Additionally, the doctor stated that considering the Veteran's Army career spanning over 20 years and serving as a paratrooper as well as numerous other assignments, which placed extreme stress on his neck, back, and other body joints, it was the doctors opinion that the Veteran's chronic low back and neck pain were more likely than not related to his duties as a soldier during his Army career. The Veteran submitted a May 2007 letter by a fellow soldier who served with him in Vietnam. The soldier reported that he served in Vietnam from 1967 to 1968 with the United States Army, 1st Brigade, 101st Airborne Division, as a Special Agent (CW-2) Criminal Investigation Division (CID). Additionally, he stated that around August 1967 somewhere in Phan Rang, Vietnam, he observed the Veteran, a fellow CID Agent, make three parachute jumps. Furthermore, he stated that on the last jump, the Veteran landed in an awkward position in an attempt to avoid some vehicles. Lastly, he stated that he did not know the extent of the Veteran's injuries, but saw that he had difficulty walking and was medically disqualified from making the remaining two scheduled jumps. During the May 2009 hearing, the Veteran reported that in August 1967 he was involved in a parachute jump in Vietnam. Additionally, the Veteran reported that donut dollies were set up in tents. The Veteran stated that during a jump, he was slipping to turn in point when he noticed a big tent right on the drop zone. He stated that when he went to draw nearer into his chute to cross over the top of the tent, he missed the tent pegs and slammed down in front of the tent. Additionally, he stated that he was moving at about 40 miles per hour when he hit the ground. Lastly, the Veteran reported that as a result of that fall, he was taken off the drop zone in a frontline ambulance and for approximately an hour he was paralyze from the waist down. The Veteran was afforded a spine VA examination in December 2009. The Veteran reported that he was a jumper in the military, and after one particular jump in 1967 he had a poor landing and injured his back. He also reported that he was taking pain medication for his back pain. Furthermore, the Veteran reported having constant, sharp low back pain on a daily basis. The examiner noted that a January 2009 MRI of the Veteran's lumbar spine showed mild bilateral foraminal stenosis at L4-L5, and mild degenerative disc disease. After examining the Veteran, the examiner diagnosed the Veteran with lumbar spine degenerative disc disease with radicular pain. Additionally, the examiner concluded that the Veteran's low back disability was as least as likely as not caused by or a result of a parachute jump in-service. The examiner's rationale was that the Veteran suffered a back injury at the time of his parachute jump, and had persistent pain since that time with progressive development of early degenerative disc disease in the lumbar spine. Furthermore, the Veteran was afforded another spine VA examination in September 2010. The Veteran reported that he injured his neck and low back in a parachute accident while in-service. Additionally, the Veteran stated that his neck and back pain have continued to get worse since that time. Furthermore, the Veteran reported that he had constant, severe, sharp, and aching neck and back pain that radiated to his arms and legs on a daily basis. Upon examination, the examiner diagnosed the Veteran with cervical spondylosis and myelopathy. The examiner diagnosed the Veteran with lumbar stenosis, and concluded that the Veteran's cervical and lumbar stenosis and degenerative joint disease with myelopathy was as least as likely as not due to or a result of a parachute jump in-service. Furthermore, the examiner stated that the Veteran had persistent neck and low back pain since the incident in 1967 when he had a poor parachute jump landing. Moreover, the examiner stated that it was possible that the Veteran injured his spine at that time causing acceleration of his degenerative disease. Based on the foregoing, the Board finds that the evidence supports the conclusion that the Veteran currently has cervical and lumbar spine disabilities. In this regard, the Board finds it significant that, upon reviewing the Veteran's clinical findings, the VA examiners and the Veteran's treating VA physician concurred that the evidence supported diagnoses of cervical spondylosis, myelopathy, bulging discs, and degenerative disc diseases, as well as lumbar stenosis and degenerative disc disease. Moreover, the Board finds that the preponderance of the evidence supports the conclusion that the Veteran's cervical and lumbar spine conditions are related to his parachute injury in service. In this regard, the Board finds it particularly significant that, after examining the Veteran and reviewing his complete claims file and medical history, the Veteran's treating VA physician and the December 2009 and September 2010 VA examiners, provided the opinion that the Veteran's cervical and lumbar spine conditions were as least as likely as not linked to his parachute jump in-service, due to the persistent neck and low back pain he has suffered since the incident in 1967. Moreover, the Board notes that there is no contrary opinion of record. Therefore, the Veteran meets all of the elements required for service connection. He currently has multiple cervical and lumbar spine disabilities, and has consistently reported the circumstances surrounding his in-service parachute jump that resulted in a poor landing, as evidenced by his VA treatment records, his statements supporting his claim, and his fellow soldier statement. Additionally, his account of the incident is further bolstered by his Jump Record, which showed that the Veteran made three parachute jumps in Vietnam. Finally, the Veteran's treating VA physician and the VA examiners have attributed the Veteran's cervical and lumbar spine disabilities to his in-service parachute jump injury, thereby providing the necessary nexus between the claimed in-service injury and the present disability. Accordingly, applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102. Therefore, the Veteran's claims for service connection for cervical spine and lumbar spine disabilities are granted. B. Varicose Veins of the Left Leg The Veteran asserts that his varicose veins of the left leg are related to his active service. Specifically, the Veteran contends that he developed varicose veins while in service, and was diagnosed soon after discharge. The Veteran's induction and separation examination reports do not reveal any complaint or reports of varicose veins of the left leg. Additionally, the Veteran's service treatment records have no documentation of treatment for varicose veins of the left leg. Furthermore, the record contains VA outpatient treatment records that show a complaint of and treatment for varicose veins. Additionally, the Veteran submitted a January 2006 letter from his treating VA doctor. The doctor noted that he saw the Veteran as a new patient in January 2006. The doctor noted that the Veteran had bilateral lower extremity varicose veins as for which service connection had already been established. The Veteran was afforded a Central Office Hearing in May 2009. The Veteran reported that he was discharged from service in April 1978. Additionally, the Veteran said he was diagnosed with varicose veins of both of his legs in approximately 1978 or 1979. He also stated that the varicose veins in his right leg were worse than the left leg, and that he was told by his doctor that when he gets pain, to elevate his legs. The Veteran was afforded a VA examination in December 2009. The Veteran reported that he developed right leg varicose veins while in service, and within a couple of years developed varicose veins in his left leg. Upon examination, the examiner noted that the Veteran had moderate visible and palpable veins, with the right leg veins slightly more prominent than the left. The examiner concluded that the Veteran's varicose veins in the left leg were as least as likely as not caused by or a result of military service. The examiner stated that the Veteran developed right leg varicose veins in service and left leg varicose veins within two years of leaving service. Additionally, the examiner stated that it seemed likely that time in service contributed to the development of not only right leg veins, but left leg veins as well. Based on the foregoing, the Board finds that the evidence supports the conclusion that the Veteran currently has varicose veins of the left leg. In this regard, the Board finds it significant that, upon reviewing the Veteran's clinical findings, the Veteran's treating VA physician and the VA examiner concurred that the evidence supported a diagnosis of varicose veins of the left leg. Moreover, the Board finds that the preponderance of the evidence supports the conclusion that the Veteran's varicose veins of the left leg were a result of his active military service. In this regard, the Board finds it particularly significant that, after examining the Veteran and reviewing his complete claims file and medical history, the December 2009 VA examiner provided the opinion that the Veteran's varicose veins of the left leg were as least as likely as not a result of his time in-service. Furthermore, the examiner stated that service contributed to the development of varicose veins. Moreover, the Board notes that there is no contrary opinion of record. Therefore, the Veteran meets all of the elements required for service connection. He currently has varicose veins of the left leg, and he has consistently reported that they began to develop while he was in-service, as evidenced by his VA treatment records and his statements supporting his claim. Finally, the VA examiner attributed the Veteran's varicose veins of the left leg to his time in-service, thereby providing the necessary nexus between the claimed in-service injury and the present disability. Accordingly, applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102. Therefore, the Veteran's claim for service connection for varicose veins of the left leg is granted. ORDER Entitlement to service connection for a cervical spine disability, to include protruding discs of the cervical spine with radiculopathy is granted. Entitlement to service connection for a lumbar spine disability, to include arthritis of the lumbar spine with radiculopathy is granted. Entitlement to service connection for varicose veins of the left leg is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs