Citation Nr: 1756815 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 10-23 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for degenerative joint disease, lumbar spine, claimed as lumbar spine trauma L4-L5. 2. Entitlement to service connection for prostate cancer as a result of exposure to ionizing radiation. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1946 to November 1948, to include service in Japan during World War II. The Veteran died May 20, 2011. In August 2012 the Veteran's wife was substituted as the appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2007, August 2008, and October 2010 rating decisions from the Department of Veterans (VA) Regional Office (RO) in Houston, Texas. The appellant was scheduled for a Board hearing in November 2017; she failed to appear. Accordingly, appellate review will proceed without a hearing. 38 C.F.R. § 20.704(d) (2017). The issues of service connection for prostate cancer and PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The competent, probative evidence supports a finding that the Veteran's degenerative joint disease, lumbar spine is due to military service. CONCLUSION OF LAW The criteria for establishing service connection for degenerative joint disease, lumbar spine have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserted that his degenerative joint disease, lumbar spine was the result of his military service. He reported that he sustained an injury in service when he landed hard on his back during a parachute jump. Generally, to establish service connection, a claimant 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Multiple level degenerative disease of the spine, with spinal stenosis was diagnosed during the June 2009 VA examination. As such, the remaining question is whether the lumbar spine disability is related to the Veteran's military service. In February 2007 the RO determined that the Veteran's service medical records were not available for review and informed the Veteran of the steps taken to rebuild his service records. The record contains a single November 1948 physical examination report; the examiner reported that the Veteran had no musculoskeletal defects. Based on the available evidence, arthritis is not shown to be present during service or in the year following separation from service, thus, in-service incurrence cannot be presumed. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a) (2017). As noted, the Veteran's service treatment records are unavailable and presumed to be destroyed by a fire at the National Personnel Records Center in St. Louis, Missouri. The Board notes that VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, are therefore heightened. The Veteran has consistently reported that he sustained an in-service injury from a serious fall while parachute jumping. Service records reflect that the Veteran trained with the 11th Airborne Infantry School as a parachutist. As such, the Board finds that the competent, probative evidence demonstrates an in-service injury. The June 2009 VA examiner noted the Veteran's back treatment history since 1956. The Veteran described his in-service injury, a post-service car accident and work as a general laborer, and that he experienced daily discomfort and muscle spasms, and problems bending over, lifting, and carrying objects. The examiner opined that the Veteran's low back disability is not caused by or a result of the Veteran's parachute activities or any other injury in service. He explained that there were no records of any service-connected back problems; that the time interval between the Veteran's discharge and the onset of his problems in 1953 is significant and that during that time his construction job could have led to back problems; and, that the Veteran's current osteoporosis, previous back surgeries, and possible prostate cancer metastasis to the spine could contribute to his current symptoms. In May 2009 the Veteran's private treatment provider reported that the Veteran had been under his care for severe low back and leg pain resulting from advanced degenerative lumbar spine disease that was undoubtedly related to in-service injuries. He explained that the degree of degeneration had to have begun many years ago and the Veteran had undergone multiple procedures and was on pain medication. In February 2010 the same private treatment provider related that the Veteran's severe neck and low back pain likely resulted from injuries during his military service. He opined that the multiple jumps that the Veteran underwent in service, and in particular the one serious fall the Veteran sustained while parachuting, accelerated and increased the severity of normal lumbar and cervical disc degeneration, resulting in severe pain and dysfunction. He further reported that the multiple jumps placed a constant strain on the intervertebral discs, tendons, and ligaments of the knee and lumbar and cervical spine, and that prior imaging studies revealed degenerative disease that correlated with the Veteran's symptoms. As there are opinions for and against the claim the Board must decide which opinions is most persuasive. The Board affords the June 2009 VA opinion little probative value as the explanation that the Veteran's construction job could have led to back problems and his current disabilities could contribute to his symptoms is speculative at best. See Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). The Board affords probative value to the private treatment provider's opinion. He reviewed the Veteran's lay statements regarding the in-service injury and reviewed treatment records to provide an opinion consistent with the evidence of record; he offered a complete rationale for the conclusion reached. Thus, the most probative evidence favors the claim and service connection is warranted. 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Service connection for degenerative joint disease, lumbar spine is granted. REMAND Prostate Cancer The Veteran asserted that his prostate cancer was due to radiation exposure in Japan after the atomic bomb was dropped. While there are limited available records, the Veteran did develop a radiogenic disease (prostate cancer) after service which he contended was a result of exposure to ionizing radiation in service, and the Veteran did serve in Japan shortly after bombs were dropped on Hiroshima and Nagasaki. As such, VA should attempt to obtain a radiation dose estimate and accomplish any additional development and process outlined in 38 C.F.R. § 3.311 as necessary. In his June 2010 supplemental claim the Veteran reported that relevant treatment records were located at the VA Medical Centers in San Antonio, Corpus Christi, and Waco. However, the record is absent evidence that the RO attempted to obtain medical records from these facilities pursuant to the Veteran's claim for prostate cancer. Accordingly, remand is necessary to obtain the relevant VA treatment records. PTSD The Veteran asserted that his PTSD was the result of his military service; he was diagnosed with PTSD in March 2011. In his April 2008 statement in support of claim for PTSD the Veteran reported that while stationed in Japan he saw several bodies and pieces of human remains and that one of his drivers would intentionally strike people with his truck and he saw the resulting injuries. In August 2008 VA made a formal finding on a lack of information required to verify the Veteran's stressors in connection with his PTSD claim, determining that the information required to verify the stressful events was insufficient to send to the U.S. Army and Joint Service Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. VA informed the Veteran of the steps taken to obtain information necessary to verify the stressful events. In March 2011 the Veteran underwent a mental health examination during the course of his regular VA treatment. During the examination he reported his stressors were that he saw the carnage of the war, children starving, U.S. soldiers treating Japanese civilians with brutality; that he had a parachuting accident at Ft. Bragg where he suffered a serious injury to his back; and, while on special duty in Albany, New York he handled bodies of soldiers being sent back overseas. As noted, VA's duties to assist are heightened when service records are not available for review. As the Veteran reported additional stressors during the March 2011 examination that VA has not attempted to verify, remand is necessary to attempt to verify all of the Veteran's in-service stressors. Accordingly, the case is REMANDED for the following action: 1. Ask the appellant to identify any outstanding treatment records relevant to the claim for service connection for prostate cancer as a result of exposure to ionizing radiation and for PTSD. All identified VA records should be added to the claims file, to specifically include all identifiable VA treatment records for prostate cancer as noted by the Veteran in June 2010. All other properly identified records should also be obtained if the necessary authorization to obtain the records is provided by the appellant. If any records are not available, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e) (2017)), to include notifying the appellant of the unavailability of the records. 2. The AOJ must attempt to verify the Veteran's reported stressors, including witnessing children starving, U.S. soldiers treating Japanese civilians with brutality; a parachuting accident at Ft. Bragg where he suffered a serious injury to his back; and, while on special duty in Albany, New York handling bodies of soldiers being sent back overseas. If further development cannot be undertaken to verify any stressors, the reasons for such should be clearly documented and associated with the claims file. 3. Obtain a radiation dose estimate. Then, send the file to the Under Secretary for Benefits for an opinion if it is determined necessary. See 38 C.F.R. § 3.311. 4. After completing the requested actions, and any additional actions deemed necessary, the AOJ should readjudicate the service connection claims for prostate cancer as a result of exposure to ionizing radiation and PTSD. If any benefit sought on appeal remains denied, the appellant and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs