Citation Nr: 1311535 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-44 156A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1985. His awards and decorations include a Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Veteran and his wife testified before the undersigned at a hearing at the RO in May 2012, and a transcript of that hearing is associated with the claims file. The Veteran also submitted additional evidence, accompanied by a waiver of review by the agency of original jurisdiction, at that time. Therefore, the Board may properly consider such evidence at this time. See 38 C.F.R. §§ 20.800, 20.1304(c) (2012). The Veteran's paper claims file and his Virtual VA file (a highly secured paperless storage system) have both been reviewed in conjunction with his claim. FINDINGS OF FACT The Veteran had multiple traumatic injuries during active service, with recurring symptoms including low back pain that progressed in severity and frequency over the years, and the evidence establishes that the current lumbar spine degenerative arthritis and degenerative disc disease was incurred as a result of active service. CONCLUSION OF LAW The criteria to establish service connection for lumbar spine degenerative arthritis and degenerative disc disease have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board's decision herein to grant service connection for a low back disability constitutes a full grant of the disability sought on appeal. Therefore, no further development is needed under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations, and no prejudice results from any deficiencies. The Veteran contends that he currently has a low back disorder as a result of multiple injuries during active duty service, including combat, from 1965 to 1985. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.303(d). Further, arthritis will be presumed to be service-connected as a chronic disability if it is shown to have manifested to a degree of at least 10 percent within one year after separation from active duty. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service, or within the presumptive period after service, either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Generally, to establish direct service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). If a veteran engaged in combat with the enemy, it will be presumed that the claimed in-service event or injury occurred as he or she reported if such event or injury is consistent with the circumstances, conditions, or hardships of such service, even though there is no official record of such incident, unless there is clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, the application of 38 U.S.C.A. § 1154(b) only provides a presumption that the claimed in-service event(s) occurred as the veteran reported. To be entitled to service connection, the competent and credible evidence must still demonstrate both a current disability and a nexus between such disability and the in-service incident or injury. See Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994); Wade v. West, 11 Vet. App. 302 (1998). Under certain circumstances, lay statements may be sufficient for service connection by establishing the occurrence of lay-observable events, the presence of disability, or symptoms of disability that are susceptible to lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In particular, the nexus element may be established based on competent and credible medical or lay evidence of continuity of symptomatology for a listed chronic disability. See Barr, 21 Vet. App. at 307. When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim will be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the evidence establishes a current low back disorder, including degenerative arthritis and degenerative disc disease. See February 2010 VA examination report; March 2010 MRI report; August 2010 record from Dr. Kidwell. The Veteran has reported multiple injuries during service. He states that the most severe or traumatic injury was a helicopter crash in May 1968 during combat service in Vietnam, although he denies any specific injury to the low back at that time. The Veteran also reports two rollover vehicle accidents, including once in 1968; two motorcycle accidents, including once in 1983; and duties as a military paratrooper. See, e.g., May 2012 statement and hearing transcript. The Veteran's military occupational specialties included anesthesiologist, parachutist, and rotary aviator unit commander or helicopter pilot. He served in Vietnam for 2 years and 5 months, and his awards and decorations include a Purple Heart, which establishes that he engaged in combat with the enemy. See DD Forms 214. As such, the Veteran's reports of in-service injury, including as a helicopter pilot, are consistent with the circumstances of his combat service, and his lay statements alone are sufficient to establish such injuries. See 38 C.F.R. § 3.304(d). Moreover, the service records show treatment after the May 1968 helicopter accident with no specific complaints, after which he was cleared for flight duty. The Veteran was also cleared for flight duty after a jeep accident in October 1968. In September 1983, he was treated for various complaints related to a motorcycle accident where he had to lay down his motorcycle to avoid being hit, although he reported no specific back complaints at that time. The Veteran has also submitted lay statements from fellow servicemembers to corroborate his reports of in-service traumatic accidents. In a July 2010 statement, J.F. indicated that he received a message as platoon leader concerning the Veteran's involvement in a jeep rollover accident in 1968, although he did not recall any details as to the Veteran's injuries at that time. In a September 2010 statement, V.B.M. described the circumstances of the May 1968 helicopter crash and indicated that he had no knowledge of any injuries suffered by the Veteran, although the co-pilot suffered a severe back injury and V.B.M. himself also had back pain. Considering the Veteran's combat service, as well as the documented treatment for at least three traumatic accidents during service and the corroborating statements from fellow servicemembers, the Board finds his reports of multiple traumatic accidents during service to be credible. There is conflicting evidence as to whether the Veteran had low back pain or other symptoms after such accidents. In this regard, as noted above, the service treatment records do not document any complaints referable to the low back, although the Veteran sought treatment for multiple other conditions on various occasions. Further, the Veteran specifically denied recurrent back pain and was found to have no clinical abnormalities of the spine during periodic examinations, as well as at his service discharge examination in September 1985. There was also no reference to back pain, and no abnormalities of the musculoskeletal system were found, during an August 1986 VA examination. The next available evidence is a March 1995 private MRI for acute localized low back pain without radiculopathy. That study showed loss of height and hydration at the L3-4 disc, and a small to medium sized central to left-sided herniation producing a mild to moderate impression upon the thecal sac. Thereafter, the Veteran established VA treatment in 2008, and he complained of low back pain in 2010. A March 2010 MRI for persistent low back pain showed degenerative changes of the lumbar spine, disc bulges at multiple levels from L2 to L5, and multilevel facet arthropathy. After VA examination in February 2010, with consideration of the March 2010 MRI, the VA examiner diagnosed lumbar spine degenerative arthritis, disc bulging, foraminal narrowing, and mild spinal stenosis. An August 2010 private consult from Dr. Kidwell also indicates complaints of low back pain and a diagnosis of lumbar discopathy, lumbar degenerative disc disease, and lumbar spondylosis/facet pain based on the previous MRIs and evaluation. In support of his claim, the Veteran has stated that he had some degree of low back pain after the accidents in service, but he did not seek treatment at the time. Instead, he self-treated his symptoms to avoid being taken out of flight status. He stated that this was very common among pilots unless there was a severe, disabling injury, and they would generally just take over-the-counter pain medications. The Veteran further stated that, at the time of the 1983 motorcycle accident, he was a physician and his wife was a nurse (although she is now a physician as well), and they both just self-treated for most injuries they suffered. At the time of the May 2012 hearing, the Veteran testified that he was Board certified in anesthesiology and pain medicine, and his specialty was low back pain and lumbar spine disorders. He also had experience conducting VA compensation and pension examinations. The Veteran testified that he had recognizable but intermittent low back symptoms in the late 1970s, and they became more chronic and occurred on a daily basis starting in the late 1980s. See, e.g., May 2012 statement and hearing transcript. The Veteran's wife testified that she has known the Veteran since 1982, and he had episodic back pain at that time. She was working as a nurse and the Veteran was a physician at the Army Hospital, and he was treating others for low back pain in the 1980s. She also stated that it was very common for the nurses and doctors in the hospital to treat themselves or informally seek treatment from coworkers without being documented in medical records. She saw the Veteran doing this, as well as self-treating with over-the-counter medications, exercise, rest, and modification of activities. She also noticed that his observable low back symptoms worsened over the years. See November 2010 statement and May 2012 hearing transcript. The Veteran is competent to report observable symptoms such as pain and limitation of motion after in-service injuries to the low back, as well as to self-treating for low back symptoms over the years. See Barr, 21 Vet. App. at 307-08; Jandreau, 492 F.3d at 1376-77. Similarly, his wife is competent to report observing his difficulties due to low back pain, as well as helping him informally treat the conditions and seeing him seek informal treatment from others. Id. Further, as the Veteran and his wife are both practicing physicians, they are more qualified than those without medical training to testify as to these elements. The Veteran has also submitted a May 2011 internet article indicating that military helicopter pilots tend to seek non-military treatment or fail to report their symptoms to avoid losing their flight status. The article also states that helicopter pilots have a much higher incidence of low back pain than the general population. See Mattern v. West, 12 Vet. App. 222, 228 (1999) (a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if it discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts). Additionally, the Veteran submitted an August 2010 private opinion from Dr. Kidwell, who is Board certified in anesthesiology and pain medicine and is also a retired Commander, Medical Corps, United States Navy. Dr. Kidwell stated that it was reasonable and expected that the Veteran would not seek medical care for most injuries during his duties as a helicopter pilot in Vietnam for fear of being grounded, as this was normal behavior for a military aviator. Dr. Kidwell further stated that, once the Veteran entered his medical training, he had a further disincentive to seek medical care, as that is the culture of medical training. He confirmed that the Veteran was also in a position to obtain "curbside consults" with no formal documentation at that time. Finally, Dr. Kidwell noted that, after he completed his medical training, the Veteran became an expert in the field of low back pain and, therefore, was able to effectively treat himself. The Board acknowledges that there are some inconsistencies between the evidence contained in the service records and the 1986 VA examination and the more recent statements by the Veteran and his wife in support of his claim. However, the Veteran and his wife have consistently described his injuries and symptoms during this appeal, and they had a credible demeanor during the Board hearing. Further, the Veteran's report of not seeking treatment so as not to jeopardize his flight status is generally consistent with the internet article concerning helicopter pilots. It is also consistent with Dr. Kidwell's corroboration of the general culture of military aviators and individuals in medical training and medical practice. As such, the Board resolves all reasonable doubt in the Veteran's favor as to the timing of his low back pain and other observable symptoms, and finds that he had low back symptoms that started during service and progressed over time. Again, the evidence shows continuity of low back symptomatology that began during service and progressed over the years to the current level, which would support an award of service connection for lumbar spine arthritis under 38 C.F.R. § 3.303(b). See also Barr, 21 Vet. App. at 307. More importantly, there is competent and credible medical evidence linking the Veteran's currently diagnosed lumbar spine arthritis and degenerative disc disease to his multiple injuries during service. First, Dr. Kidwell opined in August 2010 that the Veteran's chronic low back pain is more likely than not a direct result of multiple injuries and traumatic events while on active duty. This was based on the Veteran's reports of injuries and symptoms as summarized above, as well as consideration of his failure to seek formal medical treatment for his symptoms. Additionally, the Veteran and his wife, who are both practicing medical physicians, have opined that his current low back disorder is related to service. In a November 2010 statement, the Veteran's wife stated that it seems clear that the degenerated condition of his spine is due to injuries that could only have happened on active duty. She noted that he had not had any injuries after service that could account for the degree of damage done to his spine. The Veteran's wife also noted the Veteran's self-treatment and progressive symptoms over the years. As noted above, the Veteran specializes in anesthesiology and pain medicine and, in particular, low back pain and lumbar spine disorders. He testified during the May 2012 hearing that his current low back pain is at least as likely as not related to the currently diagnosed degenerative disc disease or intervertebral disc syndrome as shown by MRIs, and that this condition is related to the multiple episodes of trauma during service. He noted that the extent of his problem was not apparent at the time of the initial injury in May 1968, but that his condition had progressed over time. He has also denied any post-service traumatic injuries to the low back. The Board recognizes the negative opinion of the February 2010 VA examiner, finding that the Veteran's current low back disorder was not caused by his multiple injuries during service, including the May 1968 helicopter accident. The examiner explained that it was difficult to determine whether the current low back disorder had its origin during military service due to the lack of any documented complaints or treatment for low back pain during service, as well as the lack of any formal evaluations with a medical specialist until the present time. The examiner noted that the March 1995 MRI had been ordered by the Veteran himself, as a practicing physician. As the Board has resolved all reasonable doubt in the Veteran's favor with respect to having low back symptoms during service and continuously after in service injuries, the VA examiner's negative opinion is assigned very low probative value. In contrast, the competent medical opinions provided by Dr. Kidwell, the Veteran, and his wife are assigned very high probative value because they considered both the medical evidence and the lay evidence of record. Therefore, the weight of the evidence establishes that the Veteran's current low back disorder was incurred as a result of service, and service connection is warranted. 38 C.F.R. §§ 3.102, 3.303. ORDER Service connection for lumbar spine degenerative arthritis and degenerative disc disease is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs