Citation Nr: 1616915 Decision Date: 04/27/16 Archive Date: 05/04/16 DOCKET NO. 13-03 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a neck disorder. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1961 to June 1968. He also served in the Reserves. He is the recipient of the Combat Infantryman Badge and a Parachute Badge among his awards and decorations. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In preparing to decide the issues on appeal, the Board has reviewed the contents of the Veteran's Virtual VA and Veterans Benefit Management System (VBMS) claims files. All records are now in these electronic files. In November 2014 and July 2015, the Board remanded the claims for further development. That development has been completed, and the appeal has now been returned to the Board for further appellate consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The evidence is at least in relative equipoise on the question of whether the Veteran's neck disorder is etiologically related to his active duty service. 2. The evidence is at least in relative equipoise on the question of whether his low back disorder is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, a neck disorder was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2015); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. Resolving reasonable doubt in the Veteran's favor, a low back disorder was incurred in service. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Here, the disposition of the claim decided below is fully favorable to the Veteran. Therefore, the Board finds that all notification and development action necessary to render a fair decision on this matter has been accomplished. 38 U.S.C.A. §§ 5103, 5103A. Laws and Regulations Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection for certain chronic disorders, including arthritis, may be presumed where demonstrated to a compensable degree within 1 year following separation from qualifying service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To establish service connection, the Veteran must show (1) a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Analysis The Veteran seeks entitlement to service connection for neck and low back disorders. He currently has diagnoses of degenerative arthritis and intervertebral disc syndrome (IVDS) of the cervical spine, and lumbar strain. See March 2015 VA Examination. Imaging of the low back has also shown stenosis and degenerative changes in the lumbar spine. See June 2011 Private Medical Records. While in active duty service and on active duty for training, the Veteran performed several parachute jumps, including one in the Republic of Vietnam. See July 2010 Veteran Statement; Military Parachute Jump Log. The remaining issue is whether the Veteran's neck and low back disorders are etiologically related to his active duty service. The Board initially notes that arthritis is eligible for the chronic disease presumption under 38 C.F.R. §§ 3.307 and 3.309. In this case, however, neck and low back arthritis were not manifested to a compensable degree within the year following the Veteran's separation from active duty. Therefore, service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307 and 3.309. The record contains conflicting evidence as to whether the Veteran's neck and low back disorders are etiologically related to service. In a November 2010 VA examination, the Veteran reported injuring his neck and back after an estimated 18 parachute jumps. The examiner reviewed the claims file, examined the Veteran, and diagnosed him with cervical degenerative joint and disc disease, and lumbar strain. The examiner opined that performing parachute jumps could produce neck and back trauma, but in the absence of any treatment records or physicians' notes, the examiner could not determine if either were related to service without resorting to speculation. Because the examiner was unable to make a determination, and because he did not address the Veteran's statements, the November 2010 VA examination is not probative of the remaining issue. A different examiner provided a VA examination in March 2015, and provided an addendum opinion in September 2015. In the March 2015 VA examination, the examiner indicated he reviewed relevant treatment and military records, and examined the Veteran. He also diagnosed the Veteran with cervical degenerative joint and disc disease, as well as IVDS, and lumbar strain. The examiner noted that the Veteran developed lower back pain in 2009, and began receiving treatment for neck pain in 1997. The examiner determined that both disorders were less likely than not related to the Veteran's in-service parachute jumps. The examiner opined that parachute jumps were a valid nexus for the disorders, but in this case were more likely the result of natural progression and events subsequent to service. The examiner did not indicate what those events may have been, but did note that the Veteran first sought treatment for his neck 30 years after service, and for his low back 40 years after service. In his September 2015 addendum opinion, the examiner noted that if the Veteran had neck and back pain as a result of the parachute jumps, it would be reasonable to think he would have sought treatment for both earlier, as he sought treatment for other disorders as early as 1970. The examiner determined that the fact that he did not contradicted his statements regarding the 1964 onset of both disorders. In favor of the Veteran's claims is a November 2015 letter from a private doctor of chiropractic. The private doctor examined the Veteran and noted that most degenerative effects develop over many years, and the majority of people do not feel the effects of those injuries in the interim. The doctor opined that the severe degenerative effects on the cervical spine were consistent with the type of degeneration that occurs from years of untreated injuries, and were consistent with multiple traumas rather than one. Her further opined that lumbar spondylolisthesis is consistent with macro trauma at a younger age, and that a hard landing on the pelvis could result in an injury that would be deemed a "strain." Finally, the doctor opined that, while spinal degeneration is common at the Veteran's age, the impact of parachute landings "could most definitively have caused the degenerative spinal conditions...." The record also contains some conflicting statements from the Veteran. On a May 1973 report of medical history during his Reserve service, the Veteran stated that he was in excellent health. Further, May 1999 private medical records reflect both that he reported back pain began after he lifted a bag of grass, and reported back pain for "the past seven years." The Veteran has otherwise maintained that his neck and low back pain are related to his parachute jumps. See, e.g., October 2010 and April 2015 VA Examinations; April 2011 Private Medical Records; November 2012 VA Treatment Records. In a July 2010 statement, he indicated that he received treatment in the 1980's for neck and back pain. Those records are unavailable for review because they have been destroyed. See February 2011 Private Medical Letter. In that same statement, the Veteran reported at least one parachute jump in the Republic of Vietnam under combat conditions. This statement is consistent with the place, type, and circumstances of the Veteran's service. See 38 U.S.C.S. § 1154(a). His military records reflect he served in Vietnam from August 1965 to August 1966, and his DD-214 reflects that he earned both a Combat Infantryman Badge and a Parachute Badge. His military parachute log also reflects a jump in the Republic of Vietnam in September 1965. As a result, the Board has applied a presumption of credibility to the Veteran's statements regarding when his neck and back pain began. See November 2014 Board Remand; see also 38 U.S.C.S. § 1154(b). While the March 2015 VA examination and September 2015 addendum opinion are of some probative value, neither determination adequately addresses the Veteran's statements in light of the Board's application of a presumption of credibility. The November 2015 letter from a private doctor and the Veteran's statements regarding the onset of his neck and low back pain are of at least equal probative weight. The evidence of record is in relative equipoise concerning the etiology of the Veteran's neck and low back disorders. Resolving reasonable doubt in the Veteran's favor, the Board finds that both disorders are at least as likely as not etiologically related to his military service. Therefore, service connection is warranted. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a neck disorder is granted. Entitlement to service connection for a low back disorder is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs