Citation Nr: 1753849 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 07-14 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a thoracolumbar spine disorder. REPRESENTATION Veteran represented by: Eric Gang, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD I. M. Hitchcock, Associate Counsel INTRODUCTION The Veteran served on active duty between November 1982 and May 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2006 rating decision of the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the Veteran's initial claim was for service connection for upper and lower back pain, which the VA later reclassified as a thoracolumbar spine disorder, as reflected on the title page. In July 2008, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims folder. In February 2009, the Board denied the claim which the Veteran appealed to the Court of Appeals for Veterans Claims (Court). In November 2009, a Joint Motion for Remand (JMR) returned the decision to the Board. In compliance with the JMR, the Board remanded the Veteran's claim in June 2010, May 2011, and April 2013. In July 2015, the Board denied the Veteran's service connection claim which the Veteran appealed to the Court. In March 2017, the Court vacated the Board's July 2015 denial and remanded the case to the Board for additional development. FINDING OF FACT The probative evidence of record establishes that the Veteran's thoracolumbar spine disorder had its onset in or is otherwise related to his active service. CONCLUSION OF LAW Service connection for a thoracolumbar spine disorder is established. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist Neither the Veteran nor his representative has referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claims. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. The Merits of the Claim The Veteran stated that his duties as a jet engine mechanic included working in restricted spaces and in unnatural positions for extended periods. The Board finds that the probative evidence of record establishes that his thoracolumbar spine disorder had its onset in or is otherwise related to his duties as a jet engine mechanic. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The evidence of record contains both positive and negative evidence. However, affording the Veteran the full benefit of the doubt, the Board finds the following determinations to be most probative. In an October 2010 statement regarding the Veteran's back issues, Dr. R.B. noted that in the course of the Veteran's work, he was required to lift heavy tools and position his body in awkward positions in small tight spaces. Further, Dr. R.B. found that the records indicated a progressive worsening of the lumbar condition, a natural progression of the type of injury he sustained from the service-related trauma. He concluded that it is "likely as not" that the Veteran's thoracolumbar spine disorder is "a result of having to work in tight cramped spaces over prolonged periods and an object falling onto his spine; not as a result of all these other incidents which have been mentioned." In December 2012, Dr. H.D. noted that the "specific work-related incident of the toolbox, as well as the Veteran working continuously in cramped quarters doing a lot of bending, twisting, and heavy lifting, has been well documented throughout the course of the many years." Further, he noted that "the trauma of the jet engine, as well the Veteran's constant, cumulative work [and] repetitive activities in a cramped space are clearly consistent with predisposing to an acute and longstanding chronic back condition of the development of post-traumatic degenerative arthritis." Dr. H.D. cited an article from the Scandinavian Journal of Work and Environmental Health which reports that "accidental back injuries, as well as dynamic physical work in which there are compressive and shear forces along the lumbar spine, predispose to posterior disc bulges and development of disc degeneration and degenerative changes[;] which also is very consistent with his work-related activities while in service." Dr. H.D. concluded that the Veteran's thoracic and lumbar back pain is "as likely as not" related to his service-related injuries, "not only occurring in 1984, but his repetitive trauma during his in-service years." Finally, the Veteran submitted a letter dated in April 2017 from Dr. J.S. This opinion stated that "..the physical demands of his [the Veteran's] job detail as an aviation mechanic while in service it is as likely as not that his back pain and associated back issues are the result of his work while in service." Based on the foregoing, the Board finds that service connection is warranted for a thoracolumbar spine disorder. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. Given that the negative opinions did not address the issue of the Veteran's other work duties or his complaints of symptoms since his service, and that no ultimate, material issues are in equipoise, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a thoracolumbar spine disorder is granted. _________________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs