Citation Nr: 1326990 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 12-30 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a left leg disability, secondary to a lumbar spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1947 to March 1950. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded the appeal in March 2013 for further development; the Appeals Management Center fully complied with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's lumbar spine disability is not shown to be causally related to service to include due to trauma suffered as a result of parachuting during his active military service. 2. A left lower extremity disorder, to include radiculopathy, is not shown to be causally related to the Veteran's active military service or to a service connected disorder. CONCLUSIONS OF LAW 1. A lumbar spine disability was not incurred during active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 2. A left leg disability was not incurred during active service; nor is it proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Here, the Veteran was sent a letter in March 2010 that fully addressed all VCAA notice elements for service connection claims and was issued prior to the initial RO decision in this matter. 38 C.F.R. § 3.159(b)(1). Accordingly, no further development is required with respect to the duty to notify. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims folder includes the Veteran's VA treatment records, as well as private treatment records. In July 2013, VA provided the Veteran with an examination to determine the etiology of his spine and leg disabilities. VA has been unable to obtain either the Veteran's service treatment records or his Social Security Disability records. VA documented its attempts to obtain those records in memorandums dated in March 2010 (service treatment records) and May 2013 (Social Security records), informed the Veteran of the unavailability of the records, and provided him the opportunity to supply the records himself. The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran asserts that his spine disability resulted from the mechanical shock and stress his body experienced during his parachute jumps while in service, specifically both the effect of the sudden deceleration that occurred upon the deployment of his parachute (including T-7 parachutes, which he asserts have been attributed to severe back injuries in paratroopers later in life), and the landings associated with his jumps. He stated that his back problems have continued since service. Private treatment records dated in 2001 indicate that the Veteran had experienced back pain for "quite some time," but do not provide a date of onset for those symptoms. An August 2001 record includes diagnoses of spondylolisthesis of L5-S1, and left lower extremity sciatica. In December 2001, the Veteran underwent a lumbar fusion to address a L4-L5 left lateral disc herniation, lumbar spondylolisthesis, back pain, and lumbar radiculitis. A private physician, Dr. M.A.G., opined in January 2010 that the Veteran's "back problems could have been caused from parachute jumping and landing while in the military," and have become worse since that time. VA provided the Veteran with a spine and lower extremity examination in July 2013. At that time, the examiner diagnosed the Veteran with spondylolisthesis of the lumbar spine and multilevel degenerative disc disease, and left motor and sensory radiculopathy in the distribution of the L4, L5, and S1 vertebrae, secondary to the spine disability. Concerning the existence of a relationship between those disabilities and the Veteran's parachuting in service, the examiner opined that, After carefully reviewing the [claims file] to include the Veteran's assertions that he made multiple parachute jumps and landings during service, sometimes bearing as [much as] fifty pounds on his back[,] as well as the information submitted by his representative in January 2013 that parachutes used prior to 1953 were particularly injurious to the skeletal system because of the profound jerk transmitted when the chute deployed, it is my opinion that the Veteran's spondylolisthesis and radiculopathy are less likely than not due to active military service[,] including parachute jumps. The Veteran's lumbar condition [diagnosis] in 2001 is not greater than expected for natural age, therefore, [is] not caused by parachuting. Moreover, there was a temporal gap of 41 years prior to a diagnosis of a lumbar condition that eventually led to back surgery. Analysis Initially, the Board finds that the Veteran is competent to describe the in-service injuries he suffered, and to identify the symptoms of back pain that began during service and have continued to the present time. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). There is nothing to detract from the Veteran's credibility with regard to these assertions. Based on the Veteran's statements, the Board finds that he suffered trauma to the spine while performing parachuting duties on active duty. Additionally, the Board concedes that the Veteran has current spine and left lower extremity disabilities, based on the July 2013 examination report and the private medical records. Thus, the Veteran meets the first two criteria for service connection, i.e., evidence of an in-service injury, and current spine and left lower extremity disabilities. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) There is not, however, sufficient evidence of a nexus between service, to include any in-service trauma, and the present disabilities. Id. (providing that service connection requires evidence of a causal relationship between the present disability and the injury incurred during service). Rather, the probative evidence of record demonstrates that the current disabilities are unrelated to the Veteran's active duty service. Although the Veteran claims that his current spine disability resulted from his parachute jumps, he is not competent to provide such a medical nexus. The existence of a relationship between his in-service trauma and current disability such as spondylolisthesis requires medical knowledge beyond that held by a layperson such as the Veteran. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Identifying such a relationship is not something that is observable by the Veteran, and is distinct from his ability, as discussed above, to report on the pain that he experienced beginning in service and continuing to the present time. Id. While the Veteran does have a diagnosis of a degenerative lumbar disorder, there is no probative competent evidence linking that disorder to either service or a service connected disorder. Moreover, the appellant, as a lay person untrained in the field of medicine, is not competent to link lumbar degenerative changes to service. The evidence in support of a relationship between the in-service injury and the current disability, that being the January 2010 opinion from Dr. M.A.G., does not provide the requisite nexus, because while clearly Dr. M.A.G. is competent to identify a relationship between an injury and the current disability, the Board does not find the opinion probative. His opinion that the Veteran's "back problems could have been caused from parachute jumping and landing while in the military," (emphasis added) is speculative. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). The opinion also fails to provide a factual basis for his opinion, or provide any rationale in support of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that a medical opinion that is not factually accurate, fully articulated, or based on sound reasoning, is not probative). The Board also notes that there is an August 2010 VA examination report of record, in which the examiner provided an opinion that the Veteran's current spine and leg disabilities were unrelated to his military service; the Board will not further address that evidence, however, except to explain that the opinion provided in that report is not probative, as that examiner failed to provide any rationale in support of his opinion. Id. The Board finds the July 2013 VA examiner's opinion to be determinative of the matter. In contrast to the non-probative opinions of record, the July 2013 examiner's opinion is factually accurate, fully articulated, and based on sound reasoning. She considered the Veteran's in-service trauma from parachuting, but opined that the current spine disability was related to the appellant's age, rather than any injuries in service. As the examiner provided a complete rationale for her opinion, the Board finds the opinion probative of the nexus issue. Id. The July 2013 opinion is the only probative evidence of record regarding the etiology of the Veteran's spine and leg disabilities. As there is no probative evidence of a nexus between the Veteran's in-service trauma and his current disabilities, the Veteran's claims for service connection must be denied. ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a left leg disability, secondary to a lumbar spine disability is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs