Citation Nr: 1631105 Decision Date: 08/04/16 Archive Date: 08/11/16 DOCKET NO. 13-26 698 ) 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 disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, to include a mood disorder, as secondary to a lumbar spine disorder. REPRESENTATION Veteran represented by: Robert Lemley, Agent ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from July 1967 to August 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2011 and July 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida. In the November 2011 rating decision, the RO determined that new and material evidence has been received in order to reopen the Veteran's claim for service connection for a lumbar spine disorder, but denied the claim on the merits. In the July 2012 rating decision, the RO denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. Regarding the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, the Board notes that, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include a mood disorder. This claim was previously before the Board in May 2015, at which time it was remanded for additional development. The agency of original jurisdiction (AOJ) has complied with the remand directives. This appeal was processed using the Virtual VA and Veteran Benefits Management System (VBMS) paperless claims processing systems. FINDINGS OF FACT 1. A low back disability did not clearly and unmistakably exist prior to the Veteran's entrance into service. 2. With resolution of the doubt in favor of the Veteran, his back disorder is etiologically related to his active service. 3. The Veteran's acquired psychiatric disorder is secondary to his back disorder. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for a low back disorder are met. 38 U.S.C.A. § 1101, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. The criteria for a grant of service connection for an acquired psychiatric disorder, secondary to the Veteran's low back disorder, are met. 38 U.S.C.A. § 1101, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Since the Board is granting the Veteran's claims for service connection, there is no need to discuss whether the Veteran has received sufficient notice with regard to this claim, given that any error would be harmless. Service connection claims In order to obtain service connection under 38 U.S.C.A. §§ 1110, 1131 (West 2014) and 38 C.F.R. § 3.303(a), a Veteran must satisfy a three element test: (1) the existence of a present disability; (2) 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 - the so- called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). In the case of any veteran who served for ninety (90) days or more during a period of war - a chronic disease becoming manifest to a degree of ten (10) percent of more within one (1) year from the date of separation from such service shall be considered to have been incurred in or aggravated by such service, notwithstanding there is no record evidence of such disease during the period of service. 38 U.S.C.A. § 1112(a)(1) (West 2014). If a condition noted during service is not shown to be chronic under 38 C.F.R. §§ 1101, 3.309(a), then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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. 38 C.F.R. § 3.303(d); see Hensley v. Brown, 5 Vet. App. 155, 158 (1993). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154(a) (West 2014). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). "Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court." Jandreau, 492 F.3d at 1377. The Board has an obligation to provide reasons and bases supporting this decision, but there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). When there is an approximate balance of positive and negative evidence, or equipoise, regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Low back disorder As will be explained below, the record raises a question as to whether the Veteran had a low back disorder which preexisted service. A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. See 38 U.S.C.A. § 1111 (West 2014). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b) and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). Moreover, the defect, infirmity, or disorder must be detected and noted at entrance examination by a person who is qualified through education, training, or experience to offer medical diagnosis, statement or opinions. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Having carefully reviewed the record, the Board finds that the presumption of soundness applies. In that regard, the Board acknowledges that on the Veteran's February 1966 pre-induction Report of Medical History, he indicated that he was denied a job with the railroad due to a back condition. The note showed that the Veteran had lumbarization of S1, which was asymptomatic and not considered disabling. The Veteran was noted to be qualified for induction. Because the claimed low back disability was recorded by way of history only, and the clinical examination was normal, the Board concludes that a low back disability was not "noted" at the time of entrance examination, and that the presumption of soundness applies. When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that (1) the Veteran's disability was both preexisting and (2) it was not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. Here, there is no clear and unmistakable evidence that the Veteran's disability preexisted service; therefore, the presumption of soundness has not rebutted and the claim is one of direct service connection Turning to the elements of a service connection claim, the record reflects competent and credible evidence of a current disability - namely degenerative disc disease of the lumbar spine. Next, there is evidence of an in-service event, specifically that the Veteran had multiple parachute jumps and the Veteran stated that he injured his back during these jumps. While there are no service treatment records to corroborate this event, the Veteran's DD-214 indicates that the Veteran received a parachute badge. Further, the Veteran is competent to report events he personally experienced. Thus, the Board finds the Veteran's statements credible, and his reports of injuring his back during a parachute jump or jumps in service is consistent with the circumstances of his service. 38 U.S.C. § 1154(a). Thus, an in service event or injury is established. Having found that the Veteran has a current disability and sustained an in-service injury, the question turns to whether the two are related. Here, with resolution of the doubt in favor of the Veteran, the Board finds that the evidence shows that the Veteran's current low back disability is related to service. The Veteran's service treatment records show that in January 1967, the Veteran reported backaches, headaches, and pain in the back of both of his legs. He was noted to have flu-like symptoms and was prescribed an antibiotic. In May 1967, the Veteran sprained his back while lifting a footlocker. The impression was "chronic lumbosacral pain." The remaining service treatment records are negative for any complaints, symptoms, or treatment for a back injury or disorder. On the Veteran's March 1969 separation examination, he denied back trouble and a clinical evaluation of his spine was normal. A July 1969 treatment record noted "jump injury - bruised scrotum." A follow-up treatment record showed "above checked - doing ok." In October 1969, the Veteran filed a claim of service connection for a back injury. The claim form indicates that the Veteran injured his back in 1966. The Veteran's claim was denied in an April 1970 rating decision, in which the RO stated "back injury not found on last examination while in service." In September 2009, a VA treatment record showed the Veteran reported a history of herniated lumbar disc. An x-ray of the lumbar spine showed no acute injury and mild to moderate degenerative changes mid to lower lumbar spine most accentuated at the lower lumbar levels with vacuum phenomenon L5-S1. A December 2009 x-ray of the lumbar spine showed apparent partial sacralization of L5; levoconvex scoliotic curvature of the lumbar spine; multilevel degenerative change of the lumbar spine with varying degrees of stenosis; and hemangioma of bone in the right aspect of the L2 vertebral body. At an orthopedic consultation in January 2010, the Veteran reported low back pain for "several years." The Veteran underwent a VA examination in May 2010. Regarding the Veteran's back injury prior to service, the examiner identified his condition as lumbarization of the S1 vertebrae, occasionally symptomatic. Upon physical examination, the Veteran was diagnosed with degenerative joint disease of the lumbar spine. The examiner also noted a diagnosis in 1967 of a back sprain after the Veteran lifted a footlocker and the Veteran reported back pain after a parachute jump in 1969. The examiner opined that the Veteran's current lumbar spine disorder was less likely as not due to his pre-service low back condition, and that his preexisting condition was not permanently increased beyond its natural progression by military service. The examiner reasoned that there was no reasonable connection between his 1967 injury and his current disorder. He noted that the Veteran had a full time job without any limitations from the time he was released from service until his social security age and that the Veteran's separation report did not indicate any back pain. With regard to the pre-service lumbarization of S1, the examiner stated that he could not offer an opinion without resort to speculation "because no X-ray or MRI was available at that time to provide objective evidence of the status of back." X-rays dated in February 2011 and May 2011 showed postsurgical changes from transpedicular screw fixation at the L4-5 level with placement of interbody spacer and multilevel degenerative disc disease. An August 2011 MRI showed significant L4-L5 right paracentral and foraminal compromise by the degenerative disc disease, scoliosis and prominent, arthritic right facet joint and milder L3-L4 and L2-L3 disease. In a May 2011 statement, the Veteran's physician, B.D., M.D., noted that the Veteran reported sustaining a severe injury while parachuting during his military service. Dr. D. stated that "although impossible to guarantee, a severe injury such as the one he described could have contributed to the degenerative changes in his spine." In a September 2011 treatment record, the Veteran's neurosurgeon noted that the Veteran's "low back problem started after an injury during a parachute jump in 35 MPH winds." In November 2011, the Veteran was given another examination. The examiner noted diagnoses of chronic back pain since 1980, scoliosis since 2009, and degenerative disc disease of the lumbar spine since 2009. The examiner opined that it was less likely than not that the Veteran's lumbar spine disorder was incurred in or caused by the claimed in-service injury. The examiner reasoned that the Veteran had scoliosis and sacralization of the L5 vertebrae prior to service and during service; he had two incidents of back strain that did not require multiple visits. During his exit examination, the Veteran presented with no complaints of back pain and a clinical examination was normal. The examiner further stated that the Veteran 2009 MRI results were consistent with the aging of his known back conditions prior to service, and there was no evidence of an old acute severe injury episode that could be associated with parachute injury. A December 2011 x-ray of the lumbar spine showed: "Impression: Previous L4-L5 posterior spinal fixation. Scoliosis of the lumbar spine, convexity to left with the mild posterior subluxation at L3-L4. Multilevel degenerative disc disease." In February 2012, the Veteran's neurosurgeon stated "I am aware that the [Veteran] had some spinal stenosis prior to entering the service but his pain began after a parachute jump. He reported problems immediately after the jump but as an officer did not want to complain. It is my opinion that the parachute jump injury is more than 50% responsible for the problems which developed after the jump. Mild spinal stenosis can be present for many years without any symptoms." In a March 2013 neurosurgery progress note, the Veteran's physician stated that they "discussed again his history of about 50 jumps and [he does] believe that the spinal problems are related to the repeated parachute jumps and chronic repeated impact injuries." In September 2013, the Veteran's neurosurgeon stated that "[r]epeated full load jumps [aggravated] any preexisting spine problem," but then also stated that the Veteran's current lumbar spine disorder is "causally related to the multiple parachute jumps" in service. The Veteran underwent a VA examination in October 2015. The examiner first opined that the Veteran had a diagnosis of degenerative disc disease status post fusion. The examiner stated that the Veteran's disorder is less likely than not a congenital or developmental defect or disease. In support of this opinion, the examiner stated that a review of the Veteran's treatment records show that he was diagnosed with developmental disc disease of the lumbar spine in 2009. Based on a review of the medical literature, degenerative disc disease of the lumbar spine results from age related changes in the lumbar spine and in people engaged in professions where heavy lifting occurs commonly. The examiner further opined that there is clear and unmistakable evidence that the Veteran's current degenerative disc disease of the lumbar spine did not pre-exist service, as a review of the treatment records showed no evidence of a diagnosis prior to service, but rather that the Veteran was diagnosed in 2009. Then, the examiner opined that it is less likely than not that the Veteran's degenerative disc disease of the lumbar spine is directly related to service, including to any injuries the Veteran stated that he sustained following a parachute jump. A review of the evidence shows multiple opinions both supporting and against the Veteran's claim. The Board finds that the record shows that the Veteran had multiple parachute jumps in service, reported pain in his back due to those jumps shortly after service, has a current diagnosis of a back disorder, and supporting medical opinion regarding a positive nexus to service. Therefore, with resolution of the doubt in favor of the Veteran, the Board finds that his back disorder was incurred as a result of service and his claim is granted. Acquired psychiatric disorder Service connection may also be established on a secondary basis, when the claimed disability is due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. In October 2011, the Veteran filed a claim of service connection for an acquired psychiatric disorder, to include depression due to his service-related injuries. The Veteran underwent a VA mental disorders examination in June 2012. The examiner diagnosed mood disorder, secondary to general medical condition (chronic back pain), with depressive features. The examiner noted that the Veteran has chronic back pain which has been very disabling over the prior three years. As the Board has presently found that the Veteran's low back disorder was incurred during or as a result of service, service connection for an acquired psychiatric disorder as secondary to his low back disorder is granted. ORDER Service connection for a low back disorder is granted. Service connection for an acquired psychiatric disorder, including as secondary to a service-connected disorder, is granted. ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs