Citation Nr: 18149592 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-34 908 DATE: November 9, 2018 ORDER Entitlement to service connection for degenerative changes of the thoracolumbar spine and compression of L2 (back disability) is granted. FINDING OF FACT The Veteran had a diagnosis of degenerative changes of the thoracolumbar spine and compression of L2 that are related to his military service. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, the criteria for entitlement to service connection for degenerative changes of the thoracolumbar spine and compression of L2 (back disability) have been met. 38 U.S.C. §§ 1131, 5107, 7104 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1962 to June 1964. He also served in the U.S. Army Reserve. The Veteran died in April 2017. The appellant is the Veteran’s spouse. VA found that the appellant met the basic eligibility for substitution as the spouse of the Veteran and substituted the appellant as the claimant in the Veteran’s appeal. See May 2017 letter. At the time of the Veteran’s death, the Veteran had a claim pending before VA for entitlement to service connection for a back disability. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. REFERRED The issue of dependency and indemnity compensation (DIC) may need to be reconsidered based on the grant of entitlement to service connection for a back disability. The issue is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. Entitlement to service connection for a back disability The appellant and Veteran contend that the Veteran’s back disability is related to the Veteran’s military service. Specifically, the appellant and Veteran asset that his back disability is related to injury due to multiple parachuting jumps during his military service. See notice of disagreement received in February 2015. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection or service-connected aggravation for a present 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 at 1163, 1166-67 (Fed. Cir. 2004). The Veteran had multiple diagnoses for his back during the appeal period. Dr. J.R. noted diagnoses of multilevel degenerative changes involving his vertebrae and discs and chronic compression of L2. See February 2015 letter; see also January 2015 radiology report; see also February 2015 MRI. Therefore, the record shows a back disability during the appeal period. As to an in-service incurrence or injury, the Veteran claims that his back disability is related to parachuting during service. His DD Form 214 notes that he earned a parachutist Badge and that he worked as a heavy weapons infantryman. The Veteran’s military personnel record also shows that the Veteran was a paratrooper. As to a causal relationship between the present disability and in-service injury, the Veteran submitted two opinions. Dr. J.R. noted that multilevel degenerative changes involving his vertebrae and discs, as well as a chronic compression of L2 could be due to remote fracture. See February 2015 letter. The Board acknowledges that the words “could be” are speculative in nature. Despite this, the Board finds that Dr. J.R. used speculative language when discussing the evidence but concluded that the Veteran’s back problems were more likely than not to be related to his military service as a paratrooper. The Board finds that Dr. J.R.’s conclusion itself is not speculative and that the opinion is probative. The Veteran also submitted a letter from Dr. A.G. See July 2016 letter. Dr. A.G. explained that the Veteran had degeneration of cervical, thoracic, lumbar discs, spondylosis, radiculopathy, and stenosis. He opined that the Veteran’s back pain is more than likely directly caused by being a paratrooper in the past. The Board finds this opinion to also be probative. The Veteran was afforded a Back Conditions Disability Benefits Questionnaire (DBQ) examination in January 2015. During the examination, the Veteran reported that his back symptoms began 30 years ago. It began with stiffness in joints and pain that progressively worsened. The examiner opined that the Veteran’s condition was less likely than not incurred in or caused by claimed in-service injury, event or illness. See January 2015 Medical Opinion DBQ. Although the examiner conducted a Back examination, the examiner appeared only to be asked to provide an opinion regarding his neck disability. In the pertinent findings section, the examiner noted enlistment and separation physicals were negative for hip, neck, or back problems while on active duty. The examiner also noted no private medical records documenting neck, back or hip problems since discharge. In the rationale section, the examiner noted that there was no service medical record that showed problems with his neck while on active duty and that his neck problems were more likely age-related. It is unclear if the negative opinion was for a back disability. Even if it was, no rationale was provided as to why it was less likely as not that the back disability was not related to service. The Board affords little probative value to this opinion as it seems to pertain to a neck disability. As an aside, the Veteran’s personnel records show evidence that the Veteran was struck by a vehicle after service in February 1967. A vehicle ran into a brick wall and the wall hit the Veteran’s left side. Examination showed areas of tenderness in the upper dorsal spine and low back, but x-rays taken of the back were negative for any bony pathology. The evidence shows that the Veteran was a paratrooper in service and had back disabilities during the appeal period. The question then becomes whether there is a relationship between the Veteran’s military service and a back disability in service. The Veteran submitted positive opinions that provided little rationale for their conclusions, but the DBQ Opinion appears to address a neck disability and not a back disability. The Board acknowledges the evidence that shows that the Veteran was struck by a car after service, but even if the Veteran was injured after service, the conclusion provided by the private physicians that he first injured his back as a paratrooper is a reasonable conclusion. The Veteran reported that he made about 20 to 30 jumps as a paratrooper. See notice of disagreement received in February 2015. He noted that along with the jumps, the equipment he had to carry on him also caused wear and tear on his back. The Board finds that the Veteran’s firsthand knowledge of his experience as a paratrooper to be probative. The Board finds that the evidence for and against the claim is in equipoise, and that service connection for a back disability is warranted. 38 U.S.C. § 5107 (b). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel