Citation Nr: 21062430 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 10-29 973 DATE: October 7, 2021 ORDER Entitlement to service connection for lumbar spine degenerative disc disease (DDD) arthritis is granted. FINDINGS OF FACT The evidence is at least evenly balanced as to whether the Veteran's current lumbar spine DDD is related to service. CONCLUSIONS OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for lumbar spine DDD have been met. 38 U.S.C. §§ 1110, 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 August 1963 to July 1966 in the 101st Army Airborne Division. He received the Vietnam Service Medal, a Parachute Badge, and the National Defense Service Medal. See DD 214. This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This case has been remanded for record development and to obtain adequate VA examinations. See July 2011, November 2017, and July 2019 Board Remands. In June 2020, the Board denied the claim. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC). In June 2021, the CAVC issued an order granting a Joint Motion for Remand (JMR) and vacated the Board's denial. Specifically, the JMR alleged that the Board erred under Stegall v. West, 11 Vet. App. 268, 271 (1998), by failing to ensure compliance with its July 2019 Remand directive to address medical literature connecting parachute jumping to low back disabilities. As the Board is granting the claim herein, that issue is rendered moot and will not be discussed. 1. Service connection for a lumbar spine disorder The Veteran seeks service connection for a DDD of the lumbar spine, previously claimed as thoracolumbar spine osteoarthritis lower to middle back. Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. See Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Service connection may also be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38C.F.R. §3.307. DDD arthritis is a disease listed under § 3.309; thus, the presumption may apply. When there is an approximate balance of positive and negative evidence regarding an issue material to the claim, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the evidence, the Veteran has been diagnosed with multi-level DDD arthritis of the lumbar spine confirmed by radiographic imaging. See April 2008 VA examination report. Therefore, the first element of service connection is met. The Veteran believes his condition is related to parachute jumps - one hard landing. See December 2008 Statement in Support of Claim. His Service Treatment Records (STR) indicate an incident of a hard landing during jump school in early March of 1964 and he ruptured the medial meniscus in his left knee. After a surgical repair, he was restricted from parachute jumping for one month. See STR dated March 13, 1964. These STRs also indicate complaints of back pain. See STR, dated March 11, 1964. Spinal imaging was performed and was negative. See id. Therefore, the Board finds that the second element is met. Regarding a nexus to service, an April 2008 VA examination noted that the claim was denied previously because there was no record of inservice treatment. The examiner noted that the Veteran stated that he has had back pain since service and denied any post-service back injury, which includes worker's compensation. See April 2008 VA Examination, pgs. 2-3. The Board notes that a negative nexus statement cannot be based on a lack on inservice treatment alone. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). A March 2016 VA examination opined that the Veteran's lumbar spine condition is less likely than not related to service because STRs showed no evidence of back injury or complaints in service. See March 2016 VA Examination Opinion, pg. 2. The examiner discounted the buddy statements because they only recounted what the Veteran told them. See id. However, a negative nexus statement cannot be based on a lack on inservice treatment alone. The examiner did not address the Veteran's statements of a continuity of symptoms, and statements by treatment providers which supported a long history of back pain, the effects of parachute jumps, or articles submitted by the Veteran linking the activity of parachute jumps to low back problems. See id. Thus, the Board notes that a November 2017 Board decision remanded the matter for a new VA examination. A July 2018 VA examination noted disc bulges at thorasic vertebrae number twelve (T12) through lumbar vertebrae two and three (L2-3). The examiner also noted degenerative changes in L2-L5, to sacral vertebrae 1 (S1) indicating DDD from T12 through S1. See July 2018 Back Conditions Disability Benefits Questionnaire (DBQ) pgs. 9-10. The examiner opined it was less likely than not due to service because of a lack of inservice complaints or treatment. See July 2018 VA Examination Opinion, pg. 13. The examiner did not address literature linking parachute jump activity to back disabilities. The Board remanded the claim for an examination that considered this literature. See July 2019 Board Remand, pg. 5. A January 2020 VA examination opined that there wasn't enough evidence to determine the cause of the Veteran's lumbar spine DDD. See January 2020 VA Examination, pg.3. In doing so, the examiner did not address the medical literature linking parachute jumps to development of back disorders. Therefore, the Board affords the opinion no probative weight. Weighing in the Veteran's favor are private opinions from his treating physicians. In September 2007, the Veteran submitted a private opinion from Dr. J.L.M, of Bandera Crossing Chiropractic Clinic stating that the Veteran's back disability is most likely related to service. See Dr. J.L.M. Initial Examination Note, dated July 17, 2007. Dr. J.L.M. diagnosed lumbar disc degeneration, chronic low back pain, sciatica, lumbar subluxation, thorasic and lumbar osteoarthritis. See id. Dr. J.L.M noted that the Veteran complained of chronic low back pain since a prior injury in service, which is the most likely cause of his pain. See id. In 2008, the Veteran submitted a statement from Dr. A.R. G-V regarding the Veteran's history of back pain since service, and that his back was injured while in service as a paratrooper. See Dr. A.R. G-V Letter, dated December 1, 2008. In March 2009, the Veteran submitted a letter from Dr. C.K.D., which indicated that he had been treating the Veteran's low back pain since 1996. See Dr. C.K.D. Letter, dated October 9, 2007. The Veteran also submitted an undated letter from Dr. J.H., which stated that the Veteran has chronic back pain. The Veteran submitted several lay statements in support of the continuity of symptoms since service. The Veteran submitted a lay statement from P.J.P. that corroborated that the Veteran's report that his back was injured during a parachute jump, as she visited him in the hospital during his recovery. See P.J.P., U.S. Navy Retired, Statement, dated December 2, 2011. A lay statement from P.J.E. indicated that the Veteran reported his chronic back pain was due to an inservice back injury. See P.J.E. Lay Statement, received May 2, 2012. A May 2012 lay statement from a Rhode Island Police Officer, and supervisor, noted the Veteran's long-standing back condition since military service. See R.C.E. Lay Statement, dated April 20, 2012. A statement from D.L., who has known the Veteran for 45 years, stated the Veteran injured his back parachute jumping. See D.L. Lay Statement, May 2, 2012. The Board is cognizant that a lack of inservice treatment is not disqualifying for direct service connection, particularly where the Veteran credibly, competently, and consistently reported that his back disability began in service. As there is a current diagnosis of spinal DDD, credible lay statements of continuity, competent positive medical nexus opinions, an inservice incurrence of a hard parachute landing, and no competent evidence against the claim, the evidence is at least in equipoise. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that the competent and credible evidence creates a nexus between the Veteran's current back condition and active service. Thus, service connection is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-56. KRISTI L. GUNN Veterans Law Judge Attorney for the Board K. McKenzie, 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.