Citation Nr: 18149560 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 09-04 285 DATE: November 9, 2018 ORDER Service connection for lumbar spine degenerative arthritis is granted. FINDING OF FACT It is reasonably shown that the Veteran’s low back disability was incurred in service. CONCLUSION OF LAW Service connection for lumbar spine degenerative arthritis is warranted. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from August 1985 to May 1988, and had additional Army National Guard service. This matter was originally before the Board on appeal from an October 2007 rating decision, that, in pertinent part, denied service connection for low back pain. In March 2012, the Board remanded the claim for additional development. An August 2014 Board decision denied service connection for a low back disability. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in an October 2015 Memorandum Decision vacating the August 2014 Board decision with respect to a low back disability and remanding the matter for readjudication consistent with instructions outlined in the Memorandum Decision. In May 2016, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA), and the Veteran was advised of the findings. In April 2017, he submitted additional evidence and declined to waive RO jurisdiction; accordingly, in June 2017, the matter was remanded to the AOJ for its initial review and readjudication of the claim. Legal Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38. C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury in service. See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Factual Background The Veteran’s military personnel records show that he was an infantryman in service; his DD-214 reflects that he was awarded a parachute badge. Service treatment records (STRs) note a March 1987 complaint of low back pain for 5 days; he reported that he hurt his back in airborne operations when he hit the ground “very hard.” On examination, the spine was tender to palpation; the assessment was mechanical low back pain; he was treated with heat and medication. The Veteran’s parachute jump log notes that in August 1987, he had a “rear hard hit” landing on a gamma goat. On March 1988 service separation examination, the Veteran’s spine was normal. Postservice records are silent for low back complaints or treatment until September 2006, when the Veteran reported pain along the right lower spine. X-rays were normal; the assessment was back pain. At the October 2011 Board hearing, the Veteran testified that he injured his low back in service when his parachute collapsed and he landed on a gamma goat. He testified that he never had a separation examination, and that he did not seek treatment until 2006 because he was unaware that he could go to the VA. He testified that his back pain had increased since 2006. On October 2012 VA spine examination, L4 spondylosis was diagnosed on x-ray. The Veteran reported that he injured his low back in service when he landed on top of a gamma goat. The examiner opined that the Veteran’s low back disability is less likely than not related to service and more likely a normal process of aging, as his spondylosis is consistent with his age-related peers in the general population without correlation to low back pain. In May 2016 (following the August 2014 Board denial and the October 2015 CAVC Memorandum Decision), the Board sought an advisory medical opinion. In an opinion received in March 2017, an orthopedic physician opined that the Veteran’s low back disability was less likely than not related to service. He opined that the Veteran injured his back in service, but recovered and went on to complete his enlistment (including with a negative separation examination). He noted that the Veteran worked as a corrections officer for approximately 15 years without complaints of low back problems, and opined that he then developed “low back pain age related with gradual degenerative disk disease.” He concluded that he agreed with the October 2012 opinion of record. In April 2017, VA received a private medical opinion from a chiropractor. The opinion is vague and conclusory; it states that the Veteran has “multiple positive orthopedic findings, which are not consistent with a person of his age in relation to his history, the only rationale is the injuries sustained while in Military service.” On October 2017 VA spine examination, the Veteran reported that, following service, he worked in the penal system and did not seek formal treatment for his back, instead dealing with his pain “on his own.” X-rays showed no evidence of acute bony lumbar spine abnormality. The examiner reviewed the record, noted the prior history outlined above, and wrote, “The current cause of the veteran’s ongoing low back pain is not clearly evident, given the normal imaging studies and lack of lateralized findings.” She provided a negative nexus opinion; her rationale included her opinion that the Veteran sustained a soft tissue injury in service that healed (as evidenced by his normal separation examination and ability to work in corrections, “an occupation with its own physical demands”). She noted that the Veteran had never had an MRI, but that one “may be useful in directing further treatment.” In a (sworn) July 2018 affidavit (received in August 2018), the Veteran stated that he has experienced low back pain since separation from service. He reported that he worked tiling bathrooms for “a few months” after service (prior to his work in corrections), but was unable to continue due to back pain. In October 2018, VA received an August 2018 private medical opinion in support of the claim. Following review of the record (including an April 2018 MRI which is not associated with the record), the physician diagnosed facet synovitis and low back pain secondary to posttraumatic degenerative arthritis with mild spondylosis. He opined that the Veteran’s low back disability “is and was caused by the in-service injuries he sustained, during his enlistment as a paratrooper.” He noted that the Veteran completed nearly 60 jumps, and that the “sum total of these jumps caused significant, repeated impact on his lumbar spine and have resulted in post-traumatic degenerative arthritis.” He acknowledged the 2012 and 2017 opinions in the record, and indicated that he disagreed with the opinions because, in his experience, a significant majority of 45-year-olds (as the Veteran was in 2012) do not have radiographic changes or low back pain. He explained that the average 45-year-old without a history of repetitive trauma is not likely to demonstrate low back pain associated with radiographic changes. Finally, he explained that there is “no evidence of arthritis in anatomic areas other than those joints that were traumatized during his early 20s, while enlisted as a paratrooper” in the military. Analysis It is not in dispute that the Veteran has a low back disability. It is also not in dispute that he was found to have, and was treated for, mechanical low back pain in service following hard parachute landings. What remains to be determined is whether there is a nexus between his current disability and his active service. The Board finds conclusion that the competent evidence of record is at least in equipoise that the Veteran’s current low back disability was incurred in service. Although several VA examiners have opined that the Veteran’s low back disability is more likely than not age-related, a different provider reviewed the same clinical evidence (and an April 2018 MRI which showed additional mild degenerative changes of the lumbar spine) and opined that the Veteran’s low back disability was due to repeated trauma from parachuting in service. He provided an adequate rationale for his opinion, explained the reason for his disagreement with opinions to the contrary. Resolving any remaining reasonable doubt in the Veteran’s favor, as required (see 38 C.F.R. § 3.102), the Board finds that the overall evidence reasonably shows that the Veteran’s low back disability was incurred during his active duty service, and that service connection for such disability is warranted. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel