Citation Nr: 18140372 Decision Date: 10/03/18 Archive Date: 10/02/18 DOCKET NO. 15-22 886A DATE: October 3, 2018 ORDER Entitlement to service connection for degenerative disc disease with spondylosis of the lumbar spine (claimed as lower back pain) is granted. Entitlement to service connection for right lumbosacral radiculopathy (claimed as right leg pain) is granted. FINDINGS OF FACTS 1. Resolving all reasonable doubt in favor of the Veteran, degenerative disc disease with spondylosis of the lumbar is etiologically related to his military service. 2. Resolving all reasonable doubt in favor of the Veteran, right lumbosacral radiculopathy is etiologically related to his military service. CONCLUSIONS OF LAW 1. The criteria for degenerative disc disease with spondylosis lumbar spine (claimed as lower back pain) have been met. 38 U.S.C. 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for right lumbosacral radiculopathy have been met. 38 U.S.C. 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1972 to February 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision. In January 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceedings is associated with the electronic claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of such disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. 3.307, 3.309(a). Where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has that chronic disability, service connection can be granted. That does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease entity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptoms after service may serve as an alternative method of establishing service connection. 38 C.F.R. § 3.303(b). Continuity of symptoms may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post- service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptoms applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran military personnel record showed his military occupational specialty (MOS) to be as a member of the light weapons infantry, and he received the parachute badge. In February 1972, a service treatment record (STR) induction report of medical examination and concurrent report of medical history indicated the Veteran did not have any complaints or symptomology concerning his back or right lower extremity. A January 1975 separation examination did not indicate that the Veteran had any complaints or symptomology concerning his back or his right lower extremity. An April 1973 STR indicated the Veteran sustained a foot injury while jumping. An October 1973 STR showed the Veteran to have sustained a burn on his neck from his parachute gear. A February 1974 STR showed the Veteran to have hit his head while executing a jump the night prior. A March 1974 STR showed the Veteran to have left foot tenderness for the past day. In May 1996, a VA medical center (VAMC) record showed that the Veteran had complaints of low back pain which he stated had existed for a year prior. He stated he suddenly woke up with low back pain a year before and that he was unable to sit or lie down for a long time due to the pain. He also described radicular pain to the right lower extremity which radiated down to his toes and felt numbness in the last three toes of his right side. He underwent a myelogram with post myelogram CT which diagnosed mild lumbar stenosis at the L3-4 level. In June 1996, a VAMC record showed the Veteran to have participated in physical therapy for his back. In June 1996, a subsequent VAMC record showed the Veteran to have complaints of right toe numbness for a while now which was constant. In December 2009, a VAMC record showed the Veteran to have presented with back pain radiating down to his lower extremities. In March 2010, a VAMC record showed the Veteran to have reported complaints of lower back pain and right lower extremity pain. The Veteran reported splitting firewood before the pain started and after stopping that type of work, the pain continued. His lumbar spine was tender to palpation. In April 2010, a VAMC record showed the Veteran to have lower back pain with suspected nerve impingement. An MRI showed the Veteran to have degenerated disc at L5-S1 with diffuse annular bulging and spondylosis with right focal paracentral disc protrusion along with spinal stenosis. He was diagnosed with right lumbosacral radiculopathy secondary to his degenerative disc disease. In June 2010, a VAMC record showed the Veteran to have reported lower back pain for a long time. He stated it became worse in December 2009 and developed radicular pain which radiated into his right foot, with tingling and numbness into right foot. He denied activities of pushing/pulling heavy weight when he had the acute onset of lower back pain. He denied any bladder or bowel problems. In September 2010, a VAMC record showed the Veteran to have a neurosurgery consultation. The physician noted that the Veteran had jumped out of airplanes while in-service with repetitive stress on his legs. He was scheduled for back surgery. A December 2010 VAMC record showed the Veteran to have undergone lumbar stenosis and a peroneal compression. In April 2013, a VAMC record showed the Veteran presented for recurrent right lower extremity complaints. A repeat MRI showed L4-5 lateral recess stenosis, residual lateral right L5-S1 stenosis, and right L5-S1 foramenal stenosis. He reported he began suffering from right leg pain about a year ago, with the pain increasing. His pain was aggravated at night and with standing and walking. He was scheduled for a decompression. In October 2013, a VAMC record showed the Veteran to have undergone a right lumbar decompression. In September 2014, a VA examination determined the Veteran had been diagnosed with lumbar radiculopathy in 2014. The Veteran reported he had lower back pain since 1985 and had undergone multiple surgeries at VA facilities. He reported he still had neuropathy to the right lower extremity and required a cane to ambulate. He reported occasional use of a walker. In a subsequent September 2014 addendum opinion, a VA examiner opined that the Veteran’s low back pain and extremity radiculopathy was less likely than not related to his active duty service as there was no evidence of back condition during service and that the Veteran’s back treatment began over 30 years after his service. In an October 2014 second addendum opinion, a VA examiner responded “negative” to the question of whether the Veteran’s back complaints were at least as likely as not related to the Veteran’s multiple in-service parachute jumps. The examiner stated that the Veteran’s in-service treatment was not for low back pain and that as the Veteran did not have documented treatment until 1996, there was no continuity or chronicity to show any back injury. The examiner noted the Veteran did not provide an etiology at the time of his 1996 treatment. In October 2014, a VAMC record showed the Veteran to have complaints of residual right leg pain. In December 2015, a VAMC record showed the Veteran to have presented with back pain radiating down both of his legs. He reported that he had fractured his leg in-service after a parachute jump, but he had no specific injury to his back that he could recall. He reported that he developed severe back pain in the 1990’s which got better until 2009, at which time he had surgery. He reported on-and-off again pain from that time forward. In January 2018, the Veteran testified before the undersigned Veterans’ Law Judge. The Veteran stated that he was a paratrooper who did more than 60 parachute jumps during both the daytime and nighttime. He stated he jumped with field gear and weapons. He stated he suffered broken leg during one of his jumps. He stated that his back pain began after he broke his leg and continued to have on-and-off back pain from that time since his active service. In September 2018, the Veteran submitted a private medical examination report which stated that the examiner, an orthopedic surgeon, found the Veteran’s military career of parachute jumps was a significant causal factor in his development of L5-S1 degenerative disc disease with lateral recess stenosis and L4-5 spondylosis of the lumbar spine complicated by right lower extremity radiculopathy. The examiner found that the Veteran’s current conditions represented a continuation of his lumbosacral condition and that his parachute jumps were significant in the development of his condition. The examiner reasoned that the biomechanics of repetitive sheer injuries and ground reaction force compressive axial loading injuries to the spine and lower extremity in the repeated parachute jumps were significant in weakening the collagen and elastin fibrils within the discs and the structures of the facet joints and spine. He found that a progressive condition of repeated episodes of low back pain developed after discharge from the military with the eventual need for surgical intervention. The examiner found that the Veteran’s in-service treatment for strain type injuries to the lower extremity of the discussed biomechanical forces. Based on the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence supports a finding that his back condition and right lower extremity radiculopathy are etiologically related to his active service. It is consistent with the record that the Veteran completed numerous parachute jumps while in-service. The Veteran also testified that he had back pain after he broke his leg in service and that the back pain continued after service. The Board notes that the Veteran is competent to describe observable symptoms of his back pain, including onset and continuation of such pain. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board also finds probative the September 2018 private examination report. The examiner reviewed the Veteran’s file and provided a detailed analysis of the mechanics of the Veteran’s back injury related to his numerous parachute jumps while in-service. Additionally, the Board notes that there is no indication that the Veteran had any post-service back injury which could account for his back or right leg pathology. The Board finds the September 2018 private medical report of orthopedic surgeon highly probative to the issue of whether the Veteran’s back and right lower extremity conditions were related to service. The examiner detailed the time he spent reviewing the Veteran’s file and has a well-reasoned and detailed opinion regarding the etiology and causation of the Veteran’s back and right lower extremity conditions. The Board notes that the 2014 VA examination and subsequent addendums did not relate the Veteran’s back condition to his active service. However, in deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Where there are conflicting statements or opinions from medical professionals, it is within the Board’s province to weigh the probative value of those opinions. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (“The credibility and weight to be attached to these opinions [are] within the province of the adjudicators.”) So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). Greater weight may be placed on one examiner’s opinion over another depending on factors such as reasoning employed by the examiner and whether or not, and the extent to which, the examiner reviewed prior clinical records and other evidence. Gabrielson, 7 Vet. App. at 40. Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444 (2000). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this matter, the Board does not assign any probative value to the September 2014 and October 2014 VA examination reports regarding the Veteran’s back condition. In the original September 2014 report, examiner did not find that the Veteran had right lower extremity radiculopathy, despite the Veteran having undergone more than one surgical procedure to treat such a condition. Furthermore, the original September 2014 examination noted the diagnosis of the Veteran’s back condition as 2014, which is clearly contradicted by the VAMC treatment received by the Veteran beginning in 1996 for his back complaints. The additional September 2014 addendum equally holds no probative weight as that report was compiled by a different examiner from the one who conducted the earlier physical examination and did not consider the Veteran’s in-service parachute jumps, injuries due to such jumps, or the effect of such activity on the Veteran’s claimed conditions. Finally, the October 2014 addendum was also done by a different examiner than both of the previous September 2014 opinions and did not indicate that the examiner applied the correct standard in denying a nexus between the Veteran’s current conditions and his active duty service, including his parachute jumps in-service. In summary, the Board finds that by resolving all resolving doubt in favor of the appellant, the Veteran has a back disability and right lower extremity disability that are etiologically related to his military service. Accordingly, the claims for service connection must be granted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel