Citation Nr: 21061467 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-37 914 DATE: October 4, 2021 ORDER Entitlement to service connection for a low back condition, to include degenerative disk disease is granted. FINDING OF FACT The probative evidence shows the Veteran's low back pain began in and has continued since service. CONCLUSION OF LAW The criteria for entitlement to service connection for low back pain are met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1962 to June 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veteran's Affairs (VA) Regional Office. A Board hearing was held in November 2017, and the claim was denied by the Board in February 2018. It was appealed to the United States Court of Appeals for Veterans Claims (Court). In January 2019, the issue was returned to the Board by the Court. The Board then remanded the issue for further development in June 2019. The Board then denied entitlement to service connection for a low back disorder again in September 2020. The Veteran appealed to the Court and the issue was returned to the Board by the Court in June 2021. The Board will proceed to address the claim on the merits. Service Connection Service connection is established on a direct basis when there is competent, credible, evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease of injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §3.303 (a), (d). Certain chronic diseases, including arthritis such as degenerative disc disease, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 1. Entitlement to service connection for a low back condition, to include degenerative disk disease. The Veteran asserts he began experiencing lower back pain while in service which has persisted to the present. The Veteran asserts he injured his back when he performed a parachute jump on an exceptionally windy day resulting in the Veteran hitting the ground and being dragged approximately 200 to 300 yards. As stated above, the first element of service connection requires a current disability. The Veteran was diagnosed with multilevel degenerative joint and disc disease, based on an April 2011 MRI of the lumbar spine. This diagnosis was confirmed during a December 2016 and November 2019 VA examination. As a result, the first element of service connection has been met. The Veteran's service treatment records (STRs) do not show treatment for nor complaints of back pain while in service. The Veteran's medical records show he was prescribed medication for his back pain in August 1997 and was later diagnosed with chronic back pain in 1999. His records also show he has been receiving treatment for back pain since that time. Additionally, in the Veteran's May 2001 statement in support of his claim, the Veteran asserted that he injured his back during a jump in service and has experienced pain since that time. The Veteran reported again in September 2012 that during this jump, the wind was too high but instructions not to jump came after he had already exited the aircraft. Once on the ground, he was then dragged approximately 200 meters before another service member jumped on his open shoot and stopped the wind from pulling him. In service the Veteran stated he was "taught not to complain about minor injuries and pain but to keep going." However, within 6 months of leaving service his back injury began to cause him more pain, lasting 2 to 3 days at a time, which has only continued to become more painful. In a December 2012 statement in support of his claim, the Veteran stated he was young and at the time, he believed his back pain to be a minor injury. He also stated his tooth was broken during the jump and being young, he was concerned with his physical presentation more so than his back pain. The Veteran recounted the same onset of back pain as stated above. He further stated he was a master jumper who had 31 successful jumps and was injured during high winds on the 32nd jump. He was ordered back to base with the other servicemembers who were injured and was discharged approximately 45 days later. The Veteran stated while he was in pain after service, he had other financial responsibilities such as caring for his family that prevented him from seeking medical care. The Veteran underwent a VA examination in March 2013. Here, the Veteran stated he worked in the automotive industry after service. The examiner concluded that the Veteran's back condition was not related to his active-duty service to include his last parachute jump. The examiner stated that since there were no records of the Veteran having back pain from 1964 to the late 1970s, it is more reasonable to conclude that his current back condition is a result of his work in the automotive industry. However, the examiner did not consider the Veteran's lay statements of back pain in service that has continued to the present. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir 2006). As a result, the Board finds the March 2013 VA examination inadequate and is afforded no probative weight in this matter. In August 2014 the Veteran submitted an additional statement in support of his claim. The Veteran again stated he injured his back during his last parachute jump as a result of high winds. The Veteran asserted once he landed on the ground, the wind was dragging him so fast he could not get to his feet. He was dragged approximately 200 meters before another servicemember jumped on his chute, deflating it, and stopping the Veteran from being dragged further. The Veteran again stated he was trained to ignore minor injuries and due to his young age, he assumed his back injury would not be long lasting. However, about 6 months after his discharge the Veteran began to experience more back pain lasting about 3 days at a time. In a December 2014 notice of disagreement, the Veteran recounted the same onset of back pain after his last parachute jump. The Veteran asserted that after his return from service his focus was on providing for his family. He stated that he had back pain during this time but was unaware he could seek aid for this condition through the VA. He stated again that he was dragged at about 8 miles per hour over "rough terrain with holes, sticks, and rocks without being about to get to [his] feet." He asserts this caused his back pain while in service and that it has continued to the present time. In December 2016 the Veteran was afforded a hearing before a Decision Review Officer. The Veteran again recounted his last parachute jump in high winds which resulted in back pain that has continued to the present time. The Veteran further asserted that he did not experience any back pains prior to service. After his last jump, the Veteran's Sergeant required him to return to camp with the rest of the injured service members. He again states he, "was trained not to worry about [his] pain and injuries." He stated that due to this training he did not think anything of his back pain at the time. He stated, "I was young; I would get over whatever bothered me or hurt me. I've hurt before...been hurting. You don't pay it any attention, I was young." He again stated directly after service he was experiencing pain that would come and go but only continued to worsen since service. The Veteran stated he was prescribed medication and a back brace to help with pain. The Veteran was provided an additional VA examination in December 2016. Again, the examiner stated the Veteran's current back condition was not caused by his parachute jump. However, the examiner stated the Veteran' back pain began in the late 1970's during his work in the auto industry. The examiner further stated the Veteran's back condition did not have its onset until 2011 and that he reported a parachute jump in 2010. The examiner failed to consider the Veteran's lay statements regarding the onset of his back pain in service as well as mischaracterized the facts as consistently presented by the record. As a result, the Board finds the December 2016 VA examination inadequate and thus is afforded no probative weight. Nieves-Rodriguez, 22 Vet. App. 295; Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In November 2017, the Veteran was afforded a hearing before the Board. The Veteran again recounted the same onset of back pain due to his last parachute jump in high winds. He stated, after the jump, his back was sore and there was pain from his back down to his right leg. The Veteran also stated that he did not, "have the money to go to a doctor" as he needed it to provide for his ten children. The Veteran asserts he was the sole provider for his family at the time as his wife needed to stay home to care for their young children. The Veteran testified he began mechanic work about ten years after his separation from service. He stated he needed to work to provide for his family, but he continued to experience back pain which only continued to worsen. When he could seek medical attention, the Veteran stated his medical providers did not know why he was experiencing back pain until he was provided an MRI. The Veteran was prescribed medication for his pain. He further stated that the pain he felt after the jump only continued to get worse as time went on. He stated that while his back was in pain, he was young and very concerned about his appearance as his front tooth was also injured in the jump. As a result, he focused on that issue more than his back directly after the incident. The Veteran's son testified that for most of his life, he could recall the Veteran complaining about his back. He stated at about age seven, he walked into his father laying on the floor, unable to move due to the pain in his back. In November 2019, the Veteran was provided a third VA examination. The examiner stated that the Veteran's back condition was less likely than not related to his active-duty service to include the parachute jump. The examiner stated as there were no medical records showing back pain prior to the late 1970's, his back condition was a result of his employment in the automotive industry. However, again the examiner failed to consider the Veteran's lay assertions of back pain in service and since service. Based on the Veteran's November 2017 testimony, his reports of pain pre-exist his employment in the automotive industry by a number of years. As the examiner's negative nexus opinion disregards the Veteran's lay assertions of pain during and since service, the Board finds the November 2019 VA examination inadequate, and it is afforded no probative weight. Nieves-Rodriguez; Buchanan, 451 F.3d at 1337. In a February 2020 correspondence from the Veteran, he stated that he worked as a forklift driver for ten years after being discharged from service. While his back pain existed prior to his separation from service, after his discharge the Veteran needed to work to provide for his children. He did not begin working as an auto mechanic until approximately 1974. In an August 2020 correspondence the Veteran again stated that he worked as a forklift driver for ten years after his separation from service. In 1974 he moved states and became an auto mechanic. However, his focus was on automotive electrics, fuel systems, and as an air conditioning specialist. He was not tasked with lifting heavy objects, but he did still experience consistent back pain from "the injury [he] sustained during [his] service for the United States Military." However, as a father of 10 the Veteran needed to work to support his family and seeking medical attention was not within his fiscal means at the time. In August 2020 the Veteran submitted a private medical record from Dr. L. Here, Dr. L stated that the Veteran presents with years of gradually worsening back pain that began during his time in the military. Dr. L recounted the Veteran's jump during high winds stating, "the [Veteran] injured his back and had pain for several days following. This gradually improved but he has had intermittent lumbar issues since the injury. [The Veteran] reports prior to this jump, there were not severe back issues." The provider then stated, "the pain began during a military injury and has continued to progress since. [The Veteran's] chronic back issues seem to date back to this injury. His disc was likely injured during this time and has continued to worsen since." The Board finds Dr. L's opinion probative, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez. It is also the only opinion that considered the Veteran's lay evidence. As a result, the Board affords his opinion significant probative weight. While the Veteran's service treatment records are negative for complaints of back pain, he is competent to report his observable symptoms. As a result, the Veteran is competent to report a history of back pain that began in service. 38 C.F.R. § 3.159(a)(2); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the mere fact that his account is not supported by contemporaneous clinical evidence does not render it inherently incredible. Buchanan. In its capacity as a finder of fact, the Board finds the Veteran is credible as to his reports of the onset and recurrence of lower back pain since service. His accounts are internally consistent since his original claim for service connection in May 2001 and consistent with medical evidence of record. Therefore, the Board finds that throughout the appeal period the Veteran competently, credibly, and consistently reported that his back condition symptoms, to include pain, began during his military service and have continued to the present. As the Veteran has reported consistently accurate evidence throughout the entirety of is claim, his lay assertions are deemed highly probative evidence in establishing that the Veteran's back condition began in service and continued to the present. The only probative evidence regarding the onset of the Veteran's back condition is the opinion from Dr. L and the Veteran's competent and creditable lay evidence. As the facts, shown by evidence, establish that the Veteran's back condition was incurred coincident with service, service connection is warranted. 38 C.F.R. §§ 3.303, 3.307, 3.309. The claim is granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.