Citation Nr: 1804694 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 08-38 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a low back disability. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Attorney INTRODUCTION The Veteran served on active duty from September 1975 to September 1978 and from May 1981 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. This case was previously remanded by the Board in August 2012 and September 2016. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In June 2012, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. FINDING OF FACT The probative evidence of record is at least in relative equipoise as to whether the Veteran's degenerative disc disease of the lumbar spine and facet arthritis are etiologically related to an in-service injury, event or disease. CONCLUSION OF LAW The criteria for service connection for degenerative disc disease of the lumbar spine and facet arthritis have been met. 38 U.S.C. §§ 1101, 1131, 5103, 5103A, 5107 (b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Entitlement to Service Connection for a Low Back Disability The Veteran contends that he has a low back disability that is directly related to his active service. Specifically, the Veteran testified that during service he had 22 accredited parachute jumps and an additional 10 non-accredited jumps which, in part, caused his in-service back injuries and current low back disability. See June 2012 Board hearing transcript. To establish service connection for a disability, the Veteran must show: (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. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004). See also 38 C.F.R. § 3.303. The evidence of record shows that the Veteran has a current diagnosis of degenerative disc disease of the lumbar spine and facet arthritis. See, e.g., April 2013 VA examination. Therefore, there is evidence of a current disability. As to an in-service event, injury or disease, the Veteran's service treatment records reveal that the Veteran was treated for a low back strain in October 1976 and September 1977. Additionally, the Veteran's military personnel records reflect that he received the parachutist badge. Accordingly, there is also evidence of an in-service injury in the form of a low back strain, and the issue remaining for consideration as to direct service connection is whether the Veteran's current degenerative disc disease and facet arthritis is etiologically related to the in-service injury. With respect to a nexus between the Veteran's degenerative disc disease and facet arthritis and in-service low back injuries, the Board notes that the record contains conflicting medical opinions. The United States Court of Appeals for Veterans Claims has stated that the probative value of medical opinion is based on the expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions are within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Against a finding of a nexus is an April 2013 VA examination. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner noted the Veteran's diagnosed back disabilities. The April 2013 VA examiner opined that the Veteran's low back disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness. As rationale, the VA examiner noted that there are two brief entries in the Veteran's service treatment records regarding thoracolumbar strains. The VA examiner further noted that neither the service treatment records nor the Veteran's statements document a significantly severe traumatic event which would result in traumatic sequelae. Additionally, the VA examiner stated that degenerative disc disease of the lumbar spine is common within the general population and increases with age and with engagement in activities which cause stress in the spine. Since the VA examiner did not discuss the Veteran's history as a parachutist, his lay statements regarding the onset of symptoms and buddy statements attesting to his complaints of injury during and subsequent to service, the Veteran's claim was remanded in September 2016 to obtain an addendum opinion. The Veteran was provided an addendum opinion in May 2017. The VA examiner reviewed the claims file and opined that the Veteran's low back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the May 2017 VA examiner merely provided a verbatim rationale as the April 2013 examination. Therefore, the Veteran was provided a second VA addendum opinion in September 2017. The September 2017 VA examiner reviewed the Veteran's record and opined that the Veteran's current low back disabilities were not related to his active service, to include his history of parachute jumps. The VA examiner further stated that the Veteran's history of employment as a laborer following active service is consistent with a conclusion that no activities, duties, or injuries incurred during active service that resulted in a significant back injury. The VA examiner further stated that the Veteran's history as a laborer was adequate and sufficient to induce his current back condition. In favor of a finding of a nexus is a January 2010 letter from the Veteran's private physician, Dr. S. M. In the letter, Dr. S. M. stated that he has treated the Veteran since 2000. He further stated that the Veteran provided a history of chronic intermittent low back pain dating back to 1976. Additionally, the Veteran provided his military medical records to Dr. S. M. for review, which reflected specific injuries to his back in October 1976, September 1977 and November 1982. Dr. S. M. further noted that the Veteran stated that he was a paratrooper during service and that his injures were related to parachute jumps. Dr. S. M. opined that the Veteran's low back disability is causally related to his military service. As rationale, Dr. S. M. stated that the Veteran's in-service symptoms were always in the same region and were consistent with a person who had a disc herniation. Dr. S. M. further explained that the forces the Veteran sustained during his parachute jumps would be consistent with a compressive axial load on the L5-S1 disc, leading to disc herniation. The Board notes that the Veteran's service treatment records show that the Veteran was seen for low back injuries in October 1976 and September 1977. The October 1976 service treatment record reflects that the Veteran had low back pain for the past 20 days. He was assessed with a low back strain. Additionally, the September 1977 service treatment record reflects that the Veteran was assessed with a low back strain. While the September 2017 VA addendum opinion concluded that no "significant" low back injury occurred during service, the examiner's conclusion does not reflect consideration of the Veteran's credible statements that he has had chronic back pain since his active service. Further, Dr. S. M.'s opinion that the Veteran's current disability is causally related to his active service is based on a medical history taken from the Veteran that is consistent with the other evidence of record. The opinion is supported by rationale demonstrating medical knowledge and judgment, as well as an understanding of the Veteran's particular low back disabilities. In short, the Board finds Dr. S. M.'s opinion to be probative in showing that the Veteran's current low back disability is etiologically related to his active service. Furthermore, the Board finds no reason to afford greater probative weight to the May 2017 and September 2017 addendum opinions that the Veteran's low back disability is due to his post-service employment as a laborer. In view of the foregoing, the Board finds that the probative evidence of record is at least in relative equipoise as to whether the Veteran's low back disability is etiologically related to his active service. Therefore, any remaining doubt must be resolved in the Veteran's favor, and the Board concludes that entitlement to service connection for degenerative disc disease of the lumbar spine and facet arthritis is warranted. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine and facet arthritis is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs