Citation Nr: 1321982 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 09-42 328A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for a low back disorder, and if so, whether service connection is warranted. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty from April 1983 to 2003, during the Gulf War Era. This matter comes before the Board of Veterans' Appeal (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In March 2012, the Veteran testified at a videoconference hearing before the Undersigned Veterans Law Judge. A review of the Veteran's electronic ("Virtual VA") paperless claims file reflects additional treatment records dated from March 2012 to October 2012 and from April to February 2012. "Virtual VA" is a highly secured electronic repository used to store and review every document involved in the claims process. FINDINGS OF FACT 1. An unappealed March 2004 rating decision denied the claim of service connection for a low back disability and the Veteran was advised of the rating decision in March 2004. 2. The evidence received since the March 2004 rating decision is new, relates to an unestablished fact necessary to substantiate the claim of service connection for a low back disability, and raises a reasonable possibility of substantiating the claim of service connection for a low back disability. 3. Resolving all reasonable doubt in his favor, the Veteran's low back disability is causally related to his military service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for a low back disability. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a) (2012). 2. The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). (2012). The Board grants service connection for a low back disability. As this represents a complete grant of the benefit sought on appeal with respect to this issue, no discussion of VA's duty to notify and assist is necessary. New and Material Evidence The RO denied the Veteran's claim of service connection for a low back disability in a March 2004 rating decision. In March 2004, the Veteran was duly notified of this action and apprised of his appellate rights. He did not appeal the decision. 38 U.S.C.A. § 7105. If new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the March 2004 rating decision consisted of service treatment records (STRs), an October 2003 VA examination, and statements from the Veteran dated in January 2003 and October 2003. Evidence added to the record since the March 2004 rating decision includes VA treatment records, a September 2012 VA examination, and March 2013 hearing testimony. At his March 2013 hearing, the Veteran testified, in part, that he was a parasail instructor in 1984. During a toe down exercise that involved dropping 300 feet attached to a rope, the tow truck took off without releasing the toe strap. He was dragged approximately 100 feet before release. He went to the emergency room and has had difficulty with his back since that injury. (March 2013 Hearing Transcript p. 2). The Veteran was on flying status for approximately 18 years where he would help parachutists, cargo or special items go out of the plane. He was constantly being jostled by turbulence. He also jumped out of airplanes with a total of 35 total parachute jumps, constantly hitting hard and rough terrain. He also had to carry 175-pound oxygen K bottles out during countless days and hours of his enlistment, both on ground and in the aircraft. He was constantly harnessed, which compressed his back. (March 2013 Hearing Transcript pp. 4- 5). During the September 2012 VA examination, the Veteran reported that he was an aerospace technician in service, which involved instructing parachuting, human performance, hyperbaritic testing and medicine. He had completed numerous parachute jumps. He stated, in part, that he did not go to sick call for many injuries because it was common for the soldiers to treat themselves. Upon physical examination, the Veteran was diagnosed with moderate DDD at L5-S1. The VA examiner stated that there it was at least as likely as not (50 percent or greater probability) that his back disability was incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner's rationale was premised on the fact that the Veteran was in the Air Force from 1983 to 2003. His STRs corroborated his back pain from a parasailing injury in 1983. He had a lumbar x-ray that indicated anterior wedge deformity of the T-12 vertebral body in October 2003. The x-ray, however, was negative for lumbar spine degenerative changes at that time. He stated that the Veteran's x-ray report indicated wedging within the year anniversary of his discharge from the Air Force in April 2003. These statements relate to an unestablished fact necessary to substantiate the claim for service connection and raise a reasonable possibility of substantiating the claim. Since the evidence is both new and material, the claim of service connection for a low back condition is reopened. Merits of the Claim At his March 2013 hearing, the Veteran testified, in part, that he was a parasail instructor in 1984. During a toe down exercise that involved dropping 300 feet attached to a rope, the tow truck took off without releasing the toe strap. He was dragged approximately 100 feet before release. He went to the emergency room and has had difficulty with his back since that injury. (March 2013 Hearing Transcript p. 2). He further stated that he was in Airborne and taught parachuting for most of his 20 years of service. The Veteran was on flying status for approximately 18 years where he would help parachutists, cargo or special items go out of the plane. He was constantly being jostled by turbulence. He also jumped out of airplanes with a total of 35 total parachute jumps, constantly hitting hard and rough terrain. He also had to carry 175-pound oxygen K bottles out during countless days and hours of my enlistment, both on ground and in the aircraft. He was constantly harnessed, which compressed his back. (March 2013 Hearing Transcript pp. 4- 5; see also January 2010 Written Statement). He also reported a continuity of symptoms since service. (Id. at 5). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was noted during service or any applicable presumption period; (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." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). A recent decision of the Federal Circuit Court clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as "chronic" under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Degenerative joint disease (DJD), i.e., arthritis, is one such condition, although degenerative disc disease (DDD) is not, but, again, in any event, it was not first noted during his service, therefore not allowing for a showing of continuity of symptomatology since under § 3.303(b). See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Regardless, service connection can still be granted on a direct basis. The STRs dated from April 1983 to 2003 do not reflect a diagnosis of a back disability, but do reflect an injury and complaints of pain. A January 1983 STR noted that the Veteran had a bicycle accident and he had to stay overnight in the hospital. However, a January 1983 Report of Medical History showed no complaints of recurrent back pain. A January 1983 Report of Medical Examination reflects that the spine was normal. An October 1983 STR noted that the Veteran had a bad fall parasailing with onset of left chest and back pain. A November 1983 STR noted that the Veteran had a bruised back and rib cage. A May 1997 STR noted complaints of lower back pain. The Veteran also injured himself in competitive wrestling. Personnel records reflect that the Veteran was placed on parachute jump status and was an aerospace technician. (See DD Form 214 and March 1992, May 1992, November 1992, May 1993, April 1995, July 1995 Flight Status Forms). An October 2003 VA examination noted that the Veteran had an injury of the lumbosacral spine in 1996 during parachute jump with occasional lumbosacral pain (DDD). March 2008 VA treatment records reflect a diagnosis of chronic back problem. The Veteran also had an x-ray that revealed an old fracture. He was diagnosed with moderate degenerative disc disease at the L5-S1, bilateral spondylolysis at the L5, and mild levoscoliosis. During a September 2012 VA examination, the Veteran reported that he was an aerospace technician in service, which involved instructing parachuting, human performance, hyperbaritic testing and medicine. He had completed numerous parachute jumps. He stated, in part, that he did not go to sick call for many injuries because it was common for the soldiers to treat themselves. Upon physical examination, the Veteran was diagnosed with moderate DDD at L5-S1. The VA examiner stated that it was at least as likely as not (50 percent or greater probability) that the Veteran's back disability was incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner's rationale was premised on the fact that the Veteran was in the Air Force from 1983 to 2003. His STRs corroborated his back pain from parasailing injury in 1983. He had a lumbar x-ray that indicated anterior wedge deformity of the T-12 vertebral body in October 2003. The x-ray, however, was negative for lumbar spine degenerative changes at that time. He stated that the Veteran's x-ray report indicated wedging within the year anniversary of his discharge from the Air Force in April 2003. Although the September 2012 VA examiner also stated there was not sufficient evidence provided to support his current lumbar osteoarthritis to his military service because the March 2008 x-ray report only indicated moderate DDD and the lumbar spine report dated in October 2003 was not available to review; the Board will resolve all reasonable doubt in the Veteran's favor. After a careful review of the evidence of record, the Board finds that the Veteran suffers from a low back disability related to his military service. In making this determination, the Board notes that the Veteran's assertions that he experienced back pain in service during parachute jumping and has experienced chronic back pain since service are found to be capable of lay observation, and thus his statements constitute competent evidence. The Court of Appeals for Veterans Claims has held that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the resolution of issue which involves medical knowledge or specialized medical equipment, such as the diagnosis of arthritis via x-ray evidence and the determination of medical etiology, requires professional evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). The Veteran's statements with respect to his back pain are considered competent. The Board must now consider the credibility of such evidence. The Veteran has consistently submitted statements on medical records and written statements that he experienced back pain associated with parachute jumping. His personnel records are consistent with the Veteran's complaints as they demonstrate that he was an aerospace technician in service. The Veteran's lay statements with respect to his complaints of pain are deemed credible and provide probative evidence of chronic symptomatology since service. Regarding the medical evidence of record, the opinion from the VA examiner provides positive evidence in favor of the Veteran's claim that his low back disability is related to service. Specifically, the VA examiner stated that it was at least as likely as not (50 percent or greater probability) that his back disability was incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner's rationale was premised on the fact that the Veteran was in the Air Force from 1983 to 2003. And that, his STRs corroborated his back pain from a parasailing injury in 1983. He had a lumbar x-ray that indicated anterior wedge deformity of the T-12 vertebral body in October 2003. The x-ray, however, was negative for lumbar spine degenerative changes at that time. He stated that the Veteran's x-ray report indicated wedging within the year anniversary of his discharge from the Air Force in April 2003. In weighing the favorable medical opinion, the conceded exposure to physical trauma from multiple parachute jumps, and the statements from the Veteran regarding chronic symptomatology of back pain for many years, the Board finds that the evidence is relatively equally balanced in terms of whether he has a low back disability related to his military service, and will resolve this reasonable doubt in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Therefore, entitlement to service connection for a low disability is warranted. ORDER Service connection for a low back disorder is granted. _________________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs