Citation Nr: 1723937 Decision Date: 06/23/17 Archive Date: 06/29/17 DOCKET NO. 09-23 456A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Daus, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1967. He earned a Parachutist Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In February 2013, the Board remanded the issue to afford the Veteran a Board hearing. Pursuant to those remand directives, the Veteran was scheduled for a May 2013 Travel Board Hearing, which he did not attend. In July 2015, the Board found that the Veteran had good cause for not attending the May 2013 hearing and remanded the issue again to afford the Veteran a Board hearing. In substantial compliance with those remand directives, the Board afforded the Veteran a Board hearing in February 2017. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in February 2017. A transcript is of record. FINDINGS OF FACT 1. The Veteran has a current back disability, manifested by: pain, abnormal gait, difficulty ambulating, and sciatic nerve symptoms; the Veteran recalled first experiencing back symptoms around January 1974. The diagnoses are degenerative disc disease of the lumbar spine and spondylosis. 2. The Veteran parachuted approximately 20 to 30 times during service and had several bad landings, at least one of which injured him enough to go to sick call. 3. The Veteran's back disability is causally and etiologically related to his in-service parachuting activities. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative disc disease of the lumbar spine and spondylosis have been met. See 38 U.S.C.A. §§ 101, 1110 (West 2014); 38 C.F.R. § 3.303(d) (2016); Cosman v. Principi, 3 Vet. App. 503 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to provide claimants with notice and assistance in the development of their claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159. In light of the fully favorable decision herein, no further discussion of compliance with VA's duty to notify and assist is necessary. See Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). The Board finds that the Veteran has a current back disability, manifested by: pain, abnormal gait, difficulty ambulating, and sciatic nerve symptoms; the Veteran recalled first experiencing back symptoms around January 1974. A March 2008 VA examination report noted that the Veteran underwent x-ray testing, and degenerative disc disease of the lumbar spine was the diagnosis. The Board further finds that the Veteran parachuted approximately 20 to 30 times during service and had several bad landings, at least one of which injured him enough to go to sick call. As the Veteran has established current disability and an in-service event or injury, the crux of this claim is whether the Veteran's back disability is causally and etiologically related to his in-service parachuting activities (nexus). In this regard, the Board finds that the medical evidence of record is sufficient to establish nexus. As such, service connection for back disability is warranted. A January 2007 private medical opinion from a neurologist stated that it is "certainly quite possible" that the Veteran "made multiple jumps from an airplane landing somewhat violently and that this could eventually lead to a degenerative process of the lower back." The opinion continued to say that the Veteran "certainly has chronic degeneration of the lower back which certainly could have been exacerbated by multiple jumps from an airplane." The Board finds this provider competent and credible, making his opinion of high probative value. See 38 C.F.R. § 3.159(a)(1). During the February 2017 Board hearing, the Veteran estimated completing approximately 20 to 30 jumps over his period of service, several of which had "bad landings," including an instance when he was injured so badly that he went to sick call. He recalled someone taking x-rays of his knees and looking at his back. He also recalled that he could not report to work for around three days and was put on light duty. The Veteran testified that he did not start experiencing back problems until around January 1974, when he started having a "serious problem" with his back, including pain. The Veteran stated that he experienced pain, depression, and trouble walking and standing on his feet. The Veteran noted that a doctor told him that he "couldn't stand there for so long." The Veteran also noted that his back condition worsened to where his doctor told the Veteran that he could not stay on his feet, would need back surgery, could not walk over 10 feet, and needed to be in a wheelchair. The Veteran stated that he has had approximately 60 to 70 epidurals (around 12 per year for 5 years). The Veteran further stated that a nurse comes to his house three times per week to care for him due to frequent falls. The Veteran stated that he refused surgery because a doctor offering a second opinion stated that performing multiple back surgeries was not recommended for someone of the Veteran's age; also, the Veteran indicated that he knew people who became unable to walk after having surgery. Additionally, the Veteran noted that his former employer had to make concessions so that he could be seated a majority of the time. The Veteran also noted that he discontinued Army National Guard service because he needed to stay off of his feet. The Veteran tried several jobs over the years, but stated that he was stopped by his doctor. The Board finds the Veteran competent to testify regarding his lay-observable symptoms and credible, in that his testimony has been longitudinally consistent throughout the record; as such, this evidence is of high probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Also during this hearing, the Veteran's representative noted the short timeframe between when the Veteran exited the service (November 1967) and was medically released from full-time employment for back-related issues (January 1974). The representative contended that none of the Veteran's post-service work was traumatic to the back and that new evidence showed that the Veteran: needs a power wheelchair; has gait and ambulation problems from his lower back and leg, which have caused the Veteran to repetitively fall and injure himself; and has problems with both the cervical and lumbar spine (including herniations, calcifications, nerve impingements, and other issues indicative of a long-term degeneration of the spinal column). A February 2017 private medical opinion from a neurosurgeon stated that the Veteran has spondylosis and that his symptoms were atypically early in onset. The physician opined that there is a significant likelihood (at least as likely as not) that the Veteran's symptoms are related to his history of military parachute jumping. The Board finds this provider competent and credible, making his opinion of high probative value. See 38 C.F.R. § 3.159(a)(1). Service connection may be granted for conditions diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.03(d); Cosman, 3 Vet. App. at 503. Giving due consideration to all pertinent medical and lay evidence of record, the Board finds that the Veteran has established a nexus between his current disability and his in-service parachuting activities. See 38 U.S.C.A. § 1154(a). As such, service connection for back disability is warranted and granted. ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine and spondylosis is granted. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs