Citation Nr: 21005876 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-50 008 DATE: February 2, 2021 ORDER Entitlement to service connection for a low back disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his low back disability is at least as likely as not related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1112, 1154(a), 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 1971 to August 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board issued a decision denying entitlement to service connection for a low back disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the parties filed a Joint Motion for Partial Remand (JMPR) moving for vacatur of the October 2019 decision’s denial of entitlement to service connection for a low back disability. On September 1, 2020, the Court issued an Order granting the JMPR and remanding the matter to the Board for further development and proceedings pursuant to 38 U.S.C. § 7252(a). Service Connection Service connection may be established for a disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection the evidence 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). Entitlement to service connection for a low back disability The Veteran asserts that his current lumbar spine disability is the result of the cumulative impact of landing on hard surfaces while parachuting during active duty. See February 2019 Statement. The Board concludes that the Veteran has a current disability that is related to his landing on hard surfaces while parachuting during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The July 2016 VA examination shows that the Veteran has a current diagnosis of an old compression fracture, degenerative joint disease of the spine, and spondylosis. During service, the Veteran was seen for complaints of a lumbar strain injury. See January 1972 Service Treatment Records. His service treatment records also have notations of headaches, blackouts, and nerves pinching in the neck. See January 1973 Service Treatment Records. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a July 2016 VA examination. The VA examiner found that it is less likely than not that the Veteran’s lumbar spine disability is due to service, to include as the result of parachute landings. See July 2016 VA examination report. To support her conclusion, the examiner emphasized the lack of additional complaints of back pain in the STRs following the January 1972 report, the fact that the Veteran remained fit for duty until his separation, the June 1974 clinical separation evaluation of a normal musculoskeletal system, a lack of evidence of back treatment for years after service, the Veteran’s subjective report of onset of back pain in 1977 or 1978, and a history of a motorcycle injury in September 1985 that resulted in a right shoulder fracture. In conclusion, the examiner opined that the Veteran’s current lumbar spine disabilities are more likely related to other factors, to include the 1985 motorcycle accident and/or wear and tear on the back from his occupation [police officer for 22 years] and lifestyle. The Board affords this examination minimal probative value, because there is evidence in the record that, the Veteran did not injure his back in the motorcycle accident, and the examiner failed to address the May 2016 buddy statement that the Veteran was injured during parachuting training and was “recycled” to another training company, because of his injury. The evidence in favor of the claim includes a May 2016 buddy statement, the Veteran’s lay testimony, and a private medical opinion. In May 2016, the Veteran’s buddy submitted a statement that indicated that they were both in jump school together and that the Veteran injured his lower back on the 250 ft. tower. They were bunkmates and he had to assist the Veteran in getting into his upper bunk the night of the injury because the Veteran was unable to do it himself. The buddy also indicated that the medic provided the Veteran with some liniment, which he applied on the Veteran’s back. The Veteran was placed on sick call and was “recycled to another training company,” and the buddy did not see him until Fort Bragg, weeks later. In February 2019, the Veteran provided a statement regarding his lower back injury. He stated that the only time that he injured his back was on January 20, 1972 in US Army Parachute School. He stated that, Upon landing on the ground after a parachute drop from the 250 ft. tower, he experienced excruciating pain his lower back and was unable to stand up. It was the end of the training day and instructors told me to go see the medic across the field. Everyone departed and left me to make my way across the field alone, which took some time. The medical told me to rub liniment on my back on go on sick call the next day. The Veteran indicated that he received treatment the next day and when the doctor probed the area with his fingers it resulted in the Veteran dropping to his knees. The Veteran was given more liniment and was placed on light duty. The Veteran does not recall if he was given pain medication, but he was not given an x-ray, which he believes would have shown the compression fracture that was discovered in April 2014. The Veteran was unable to complete Jump School training because training was continuously painful, and he was “recycled” into a different company and was later assigned to the 82nd Airborne division. The Veteran also explained that he started getting headaches that he had not experienced prior to his parachute accident. He believes his headaches and back problems are related to Jump School training. “The initial pain was in the lower back, but it jarred my entire spinal column to the point it knocked the breath out of me. Then a few months later my headaches started. I’ve had back problems and headaches my entire adult civilian life.” The Veteran also states that he has never told any medical professional that his back issues were “good, cured, or otherwise alleviated.” In September 2020, a private physician submitted a medical opinion regarding the Veteran’s low back disability. The physician reviewed the Veteran’s medical history and reviewed his circumstances of his military service. The physician indicated, that while it is difficult to read, due to poor handwriting, the Veteran was evaluated during service for his injury. The physician also noted that the Veteran suffered a motorcycle accident in the 1980’s which fractured some of the ribs among other injuries but reported that he did not suffer any additional back pain from the incident. The physician stated that the VA doctor determined that the Veteran’s back pain must be coming from the motorcycle accident, and not from the skydiving accident. The physician disagrees and opines that, the Veteran’s back injury is more likely than not from when the Veteran injured his back while in paratrooper school. As to the rationale, the physician explained that the Veteran’s symptoms began during this time period. The Board finds this medical opinion more probative than the VA opinion because the physician considered the entire record including the medical evidence and the lay testimony. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current low back disability is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a low back disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.