Citation Nr: 21000792 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-30 814 DATE: January 6, 2021 ORDER Entitlement to service connection for a bilateral hip disability is granted. Entitlement to service connection for a back disability is granted. Entitlement to service connection for bilateral lower extremity radiculopathy is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Board finds that the Veteran’s bilateral hip disability is related to service. 2. Resolving all reasonable doubt in his favor, the Board finds that the Veteran’s back disability is related to service. 3. Resolving all reasonable doubt in his favor, the Board finds that the Veteran’s bilateral lower extremity radiculopathy is related to service CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hip disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a back disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a bilateral lower extremity radiculopathy have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1977 to September 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Court of Appeals for Veterans Claims (CAVC) partially vacated the Board’s decision to the extent it denied service connection for back and bilateral hip disabilities due to the Board’s failure to provide an adequate statement of reasons and bases with its decision, as required by 38 U.S.C. § 7104 (d). Specifically, the Board did not discuss relevant evidence in evaluating continuity of symptomatology and the presence of a current hip disability and failed to consider and address lay evidence of record concerning continuity of symptomatology of the back disability. This case was subsequently remanded by the Board in July 2019. 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. Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 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). Certain chronic diseases, including arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309 (a). Moreover, for such chronic diseases, an alternative method of establishing service connection is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a); See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Additionally, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303 (a). 1. Bilateral hip disability 2. Back disability with bilateral lumbar radiculopathy The Veteran’s service treatment records do not reflect any complaints, signs, symptoms, or a diagnosis related to a back or hip disability. The Veteran denied any back or hip symptoms, including pain, in his July 1983 examination. The Veteran did not have a separation examination. VA treatment records from October 2011 show the Veteran complained of back pain with radiculopathy with an onset of two weeks prior. Lumbar radiculopathy secondary to degenerative disc disease was shown. October 2011 private treatment records show complaints of left hip pain with no known injury. Imaging studies showed degenerative changes in both hip joints. In February 2015 correspondence the Veteran stated he did not immediately seek treatment for his back and hip disability after separation because he was focused on getting back to his family and finding a job and adjusting to the real world. The Veteran also stated he did not seek treatment in service because there was an expectation to not be a wimp and go on sick call. The Veteran provided two buddy statements from friends who stated the Veteran had mentioned the back pain he suffered from shortly after service due to difficult landings while in service. The Veteran stated he performed over 40 jumps in service and his service records confirm receipt of the senior parachutist badge. The February 2020 VA back examination shows a diagnosis of degenerative joint disease with bilateral lower extremity radiculopathy. The February 2020 VA hip examination confirms a bilateral hip disability. A November 2019 VA examiner, D.C. opined the Veteran’s back disability and lumbar radiculopathy was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned the Veteran was not seen for a back condition in service and was not seen for back pain until 2011, 25 years after separation. The in-service examination of July 1983 was negative for a back condition. The development of osteoarthritis related to parachute badges is usually seen early in a Veteran’s life, late 20 or 30 years old and the severity is usually exaggerated as compared to osteoarthritis due to advancing age. The February 2020 VA hip examiner, Dr. K.G., stated the Veteran’s bilateral hip disability was at least as likely as not caused by the claimed in-service injury, event or illness. Dr. K.G. reasoned that the rates of osteoarthritis are significantly higher in military populations than in comparable age groups in the general population, especially for black veterans. The Veteran served in an airborne unit and has numerous documented parachute jumps. It is likely that mechanical stress due to landing on parachute jumps contributed to an increased likelihood of degenerative joint disease in this veteran. With respect to a nexus between the back disability with bilateral lower extremity radiculopathy and bilateral hip disability and in-service parachuting jumps, 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). VA examiner D.C. largely predicated her negative nexus opinion based on the temporal gap before the Veteran sought treatment for his back disability. However, after considering the Veteran’s credible lay and buddy statements attesting to the Veteran’s continuous symptoms after service, the Board assigns less probative weight to VA examiner D.C.’s opinion. Further, Dr. K.G. provided a reasoned opinion that it is likely that mechanical stress due to landing on parachute jumps contributed to an increased likelihood of degenerative joint disease in this veteran. For these reasons the Board affords great probative weight to Dr. K.G.’s opinion stating that the Veteran’s current degenerative joint disease is related to the mechanical stress of parachute jumps in service. In summary, the Board finds that by resolving all resolving doubt in favor of the appellant, the Veteran has a bilateral hip disability and back disability and bilateral lower extremity disability that are etiologically related to his 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). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. St. Laurent, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.