Citation Nr: 1815519 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 14-24 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for lumbar spine degenerative disc disease and osteoarthritis. 2. Entitlement to service connection for major depressive disorder, claimed as secondary to service-connected disabilities. 3. Entitlement to service connection for left leg numbness, secondary to lumbar spine degenerative disc disease and osteoarthritis. REPRESENTATION Veteran represented by: Shana Dunn, Esq. ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel INTRODUCTION The Veteran served with the United States Army Reserves from September 1980 to February 2001, with a period of active duty for training (ACDUTRA) from January 1981 to September 1981, multiple periods of inactive duty for training (INACDUTRA), and a period of active duty from January 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2011 (low back and acquired psychiatric disorder) and January 2014 (left leg numbness) rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Concerning the Veteran's claim of service connection for an acquired psychiatric disorder, the Board has recharacterized the issue to better reflect the medical evidence of record. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, the evidence shows that the Veteran's lumbar spine degenerative disc disease and osteoarthritis are etiologically related to a period of INACDUTRA. 2. Resolving all reasonable doubt in favor of the Veteran, the evidence shows that the Veteran's major depressive disorder is etiologically related to his service-connected lumbar spine degenerative disc disease and osteoarthritis. 3. The Veteran has a left leg disability, diagnosed as left leg sciatica, that is related to his service-connected lumbar spine degenerative disc disease and osteoarthritis. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar spine degenerative disc disease and osteoarthritis have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for major depressive disorder have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 3. The criteria for service connection for a left leg disability, diagnosed as left leg sciatica, have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110 (2014). "Active military, naval, or air service" includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. See 38 U.S.C. § 101(21), (24) (2014); 38 C.F.R. § 3.6(a), (d) (2017); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Service connection for INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in line of duty. See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). Generally, to establish a right to compensation for a present disability, a veteran 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). Compensation may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2017). When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017). Lumbar Spine Degenerative Disc Disease and Osteoarthritis The Veteran is seeking service connection for lumbar spine degenerative disc disease and osteoarthritis. He contends that he injured his back from numerous parachute jumps during service, running in combat boots, and carrying heavy ruck sacks for long periods of time. See July 2014 Notice of Disagreement and Veteran's June 2016 Statement. Specifically, the Veteran asserts that a parachute jump on May 7, 1983, during a period of INACDUTRA, resulted in a low back injury after landing on blacktop. See January 2011 Application for Compensation and May 1983 Leave and Earnings Statement. As an initial matter, the Board notes that the Veteran has been diagnosed with lumbar spine degenerative disc disease and osteoarthritis. See December 2013 VA Examination. As such, the first element of service connection has been met. The second element of service connection is medical evidence, or in certain circumstances, lay testimony, of in-service incurrence of an injury. Several lay statements have attested to the Veteran's back injury resulting from a May 7, 1983 parachute jump. Statements from Messrs. A. S., J. N., C. H., and E. P., former military colleagues who had served with the Veteran, all described a May 1983 airborne operation in which the Veteran injured his back when he prepared for a water landing but instead landed on asphalt. See March 2011 Lay Statements from Messrs. A. S., J. N., and C. H., and June 2016 Lay Statement from Mr. E. P. Messrs. A. S. and J. N. stated that the Veteran chose to see the operation through to its completion despite his back injury and did not seek immediate medical attention. The statements additionally describe the harsh conditions under which they served, such as parachute jumping in unfamiliar terrain with numerous obstacles and hazards, jumping with 150 pounds of equipment on their backs, rigorous training exercises, physical training tests, and timed ruck sack marches. In a March 2016 statement, the Veteran stated that he injured his back on May 7, 1983, during an airborne mission. He had been preparing for a water landing but instead came in contact with black top. Despite feeling severe pain in his back, the Veteran continued with the mission and worked through the pain. The Veteran noted that his civilian job was an electrician until 1992, and then he became a supervisor. His job entailed very little physical activity other than walking and directing a workforce. The Veteran stated that he believed his low back condition was due to the May 7, 1983 incident and from the conditions of service, such as running in combat boots, conducting airborne operations, and carrying heavy ruck sacks. While the Veteran and his former military colleagues are not competent to diagnose the Veteran's lumbar spine degenerative disc disease and osteoarthritis, they are competent to report that the Veteran injured his back after a parachute jump, as that is a matter that does not require specified knowledge and can be described and witnessed by a lay person. The Veteran's in-service back injury was an event which he experienced and was able to describe and observe as a lay person. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, the Veteran and his former military colleagues are competent to provide lay testimony as to the fact that the Veteran injured his back as a result of a parachute jump. In a September 2012 statement, Dr. M. S., the Veteran's chiropractor, stated that he had reviewed the Veteran's November 2001 magnetic resonance imaging (MRI) of the lumbar spine and determined that the findings were consistent with an axial injury, such as jumping out of a plane and landing hard on the feet or tailbone. Dr. M. S. believed that the Veteran's low back pain was due to the findings and mechanism of injury seen on the MRI. The Board notes that the Veteran was afforded a VA examination for his low back condition in December 2013. The VA examiner opined that the Veteran's lumbar spine degenerative disc disease and osteoarthritis were less likely than not due to service, reasoning that the Veteran was 52 years old, overweight, and had not complained of back pain until 2001. The examiner determined that the Veteran's low back condition was due to the natural aging process. However, the examiner failed to address the competent and credible statements from the Veteran and his former military colleagues regarding the Veteran's in-service injury from a parachute jump when forming his medical opinion. The examiner further failed to consider the November 2001 MRI revealing small to moderate-sized paramedian L4-5 disc protrusion with probable mild left L5 impingement or the Veteran's assertions that he had experienced continuous low back pain after the 1983 injury up till 2001, when he finally sought medical attention for his back. For these reasons, the Board affords the December 2013 VA examination little probative value. Given the competent and credible lay statements regarding the Veteran's May 1983 back injury, the private medical opinion from Dr. M. S. explaining that the 2001 MRI findings are consistent with an injury resulting from jumping and landing hard on the feet or tailbone, and that the Veteran's low back pain is associated with this injury, the Board finds that the second and third elements of service connection have been met. The lay statements establish an in-service injury during a period of INACDUTRA and Dr. M. S.'s medical opinion establishes a relationship between the Veteran's current condition and the back injury he sustained in service. Accordingly, there are current diagnoses of lumbar spine degenerative disc disease and osteoarthritis, competent and credible evidence of an in-service injury during a period of INACDUTRA, and medical evidence linking the Veteran's in-service injury to his current diagnoses. Therefore, the Board finds there is competent and credible evidence that the Veteran's lumbar spine degenerative disc disease and osteoarthritis are etiologically linked to his in-service back injury. The Board thus resolves doubt in the Veteran's favor and finds that service connection is warranted for lumbar spine degenerative disc disease and osteoarthritis. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Major Depressive Disorder The Veteran is seeking service connection for major depressive disorder. He contends that he experiences anxiety and depression due to the negative effects that his service-connected disabilities, specifically his hearing loss and low back condition, have on his life. In a July 2014 Disability Benefits Questionnaire (DBQ) for mental disorders, the Veteran reported experiencing bouts of depression secondary to his hearing loss and back pain. He experienced sadness, isolation and withdrawal from friends and family, feelings of guilt, difficulties with sleep and concentration, and fear of his physical symptoms worsening and an inability to care for himself. After a full review of the Veteran's claims file and interview of the Veteran, Dr. T.D. diagnosed the Veteran with major depressive disorder, recurrent, moderate. Dr. T. D. opined that the Veteran's major depressive disorder was more likely than not due to his back condition. Accordingly, there is a current diagnosis of major depressive disorder and medical evidence linking it to his low back condition, which has been granted service connection herein. Therefore, the Board finds there is competent and credible evidence that the Veteran's major depressive disorder is etiologically linked to his service-connected disabilities, specifically his low back condition. The Board thus resolves doubt in the Veteran's favor and finds that service connection is warranted for major depressive disorder. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Left Leg Numbness The Veteran's private treatment records note that he has left leg sciatica. See October 2016 private treatment records. The same records, together with the September 2012 opinion from Dr. M.S., relate the condition to the Veteran's now service connected low back disability. As such, service connection for a left leg disability, diagnosed as left leg sciatica, is warranted. ORDER Service connection for lumbar spine degenerative disc disease and osteoarthritis is granted. Service connection for major depressive disorder, secondary to service-connected disabilities, is granted. Service connection for a left leg disability, diagnosed as left leg sciatica, is granted. ______________________________________________ DONNIE R. HACHEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs