Citation Nr: 21011575 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-33 709 DATE: March 2, 2021 ORDER Entitlement to service connection for a back disability, to include degenerative arthritis of the lumbar spine, is granted. FINDING OF FACT The Veteran has experienced lumbar spine pain with continuity of symptomatology related to degenerative arthritis since separation from service. CONCLUSION OF LAW The criteria for entitlement to service connection a back disability, to include degenerative arthritis of the lumbar spine, are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 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 December 1967 to June 1970. This matter returns to the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans’ Affairs (VA) Regional Office (RO) in Montgomery, Alabama. By way of background, the Veteran’s service connection claim for a back disability was denied in a March 1992 final rating decision. The RO continued the denial of service connection for a back disability in the October 2011 rating decision because the evidence submitted was deemed not new and material. The Veteran timely appealed to the Board where a hearing was held in October 2017 with a different Veterans Law Judge (VLJ) than the undersigned, a transcript of which has been associated with the claims file and reviewed. The Board issued a March 2018 decision wherein the Veteran’s service connection claim for a back disability was reopened finding new and material evidence had been submitted and remanding the claim for additional development. As will be discussed in more detail below, the Board finds substantial compliance with the March 2018 remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding when a remand is issued, the Veteran is entitled, as a matter of law, the right to compliance with the remanded order). Of note, as part of the Board’s March 2018 decision, the Veteran’s service connection claims for a bilateral knee disability, bilateral shoulder and arm disability, and bilateral ankle disability were reopened and ultimately denied. Thus, the only remaining issue before the Board on this appeal is the Veteran’s service connection claim for a back disability. Following the additional development, the RO issued a July 2019 Supplemental Statement of the Case (SSOC) continuing the denial of service connection for a back disability. The claim returned to the Board where another hearing was held in December 2020 with the undersigned VLJ. A hearing transcript has been associated with the claims file and reviewed. Usually when a veteran has been afforded two different Board hearings with two different VLJs, a panel decision is appropriate with three VLJs as well as affording the Veteran the opportunity to present testimony before a third VLJ. In this case, however, since the Board will be granting the claim sought in full, there is no prejudicial error in proceeding with a single VLJ decision. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to service connection for a back disability, to include degenerative arthritis of the lumbar spine, is granted. The Veteran contends his back disability was caused by or incurred during service and he has experienced symptoms during service and since separation. The Board finds service connection is warranted. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for the aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Certain chronic diseases, including arthritis, will be presumed related to service 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, 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). When service connection cannot be established on a presumptive basis, the Court has held that the claim must nevertheless be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (1994). The elements of direct service connection are: “(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,” also known as the nexus element. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Turning to the relevant medical evidence of record, upon entrance, the Veteran was clinically evaluated to be normal. See January 1967 entrance examination. In April 1968, the Veteran reported lumbar pain without radiation referencing an injury in October 1967. See April 1968 service treatment records (STRs). At separation, the Veteran was clinically evaluated as normal with no complaints reported. See June 1970 separation examination. In December 1989, the Veteran attended a functional capacity evaluation wherein he reported being struck in the head with a piece of wood forcing his head into extension resulting in a neck and back injury. See December 1989 non-government treatment records. He also reported a work-related knee injury in 1983 which required surgery. Id. The Veteran complained of lumbar pain that is aggravated with sitting. Id. In September 1991, the Veteran reported experiencing backaches. See September 1991 SSA. In October 1991, the Veteran continued to report pain in his lower back. See October 1991 non-government treatment records. In November 1991, lumbosacral spine imaging revealed narrowed space between L-5/S-1 with spondylotic changes of the lumbar spine following a history of back injury. See November 1991 VA examination. In April 1992, treatment records reference awaiting possible surgery for two ruptured discs of the cervical spine and a bone spur. See April 1992 SSA-831. The Veteran reported experiencing pain in the upper and lower back. See June 1992 SSA-831. In July 1992, the Veteran sought evaluation for low back trouble and continued neck pain and weakness of the upper extremity. See July 1992 non-government treatment record. He stated that he was in a work-related injury in the 1989/1990 timeframe for which he was medically followed and deemed to reach maximum medical improvement. Id. The Veteran said he experienced significant pain in the neck, shoulders and some fingers after the 1989 work-related injury. See August 1992 non-government treatment record. In September 1992, the Veteran was noted to be “still hurting quite badly” regarding his back. See September 1992 non-government treatment records. In 1993, the Veteran was assessed with lumbar strain following complaints of lower back pain for three weeks after lifting paint buckets. See January 1993 SSA-831. He applied for SSA benefits citing his disability began in 1989 because of a neck injury and low back injury. See April 1993 SSA decision. Within the application, the Veteran stated that he went to the infirmary medical center for his lower back but does not have the dates of said visit. Id. In 1994, the Veteran reported lower back pain. See March 1994 government treatment records. Imaging for the L-S spine was ordered for “old trauma.” Id. In August and September 1995, the Veteran continued to report experiencing back pain. See August and September 1995 government treatment records. In 2010, the Veteran sought consultation with a private provider during which he reported being injured following his jumps during service. See September 2010 government treatment records. He explained that his injuries were not reported during service. Id. Upon evaluation of the Veteran’s medical history, the provider wrote that because of the documented pathology involving the axial skeleton and the pain in the major joints of the lower extremities and given the Veteran’s history of paratrooper activity, it has to be considered that this experience “may well have contributed” to the development of the degenerative changes and associated pain he experiences. Id. In July 2012, the Veteran continued to report experiencing chronic lower back pain. See July 2012 VA treatment records. He was assessed with chronic lower back pain. Id. In 2018, the Veteran underwent a consultation following a fall wherein he was noted to have a history of cervical spine stenosis, generalized osteoarthritis, and chronic pain syndrome due to a service-connected injury in 1968 while serving as a paratrooper and landing wrong. See April 2018 government treatment records. Imaging in 2019 revealed mild disc space narrowing in the thoracic spine. See January 2019 non-government treatment records. The Veteran has repeatedly mentioned a specific paratroop jump landing that “did not go right” causing him to be dragged. See August 1991 non-government treatment records; March 1994 government treatment records; November 2010 Statement in Support of Claim. Specifically, the Veteran stated that he completed Airborne Training in Georgia. See June 2010 Correspondence. He said during training he was dragged across the drop zone by a parachute from a gust of 30 mph wind. Id. He testified that his helmet was knocked off. See December 2020 hearing transcript, p. 3. He said the medics tended to him and he was carried away for treatment. Id. The Veteran testified that was all he remembered for several months. Id. He injured his legs, ankles, hips, knees, back, and head. See June 2010 Correspondence. He said he had to terminate his jump status because he did not want anyone to know that he was hurt or to worsen any of his injuries. Id. Following separation, the Veteran stated that he sought chiropractic treatment. Id. He said he was too proud to let anyone know that he was hurt. Id. The Veteran testified that after service, he received chiropractic treatment for his back symptoms that continued since separation. See December 2020 hearing transcript, p.7. He stated that he has been having back problems since the referenced landing during his last jump. See October 2017 hearing transcript, p. 7. The Veteran testified that by the end of 1971 into 1972, he was “pretty much depleted” and had to start going to the doctor. He said he was saw a chiropractor, herbalist, and acupuncturist, but he could not obtain the records. Id. at 9. The Veteran submitted multiple buddy statements in association with his claim. A sibling indicated that the Veteran had back mobility issues after his discharge from service. See December 2020 buddy statement. Another sibling reported that she vaguely remembers the Veteran having trouble moving following his discharge noting, however, that she was only about eight years old at the time. See December 2020 buddy statement. A childhood neighbor that knew the Veteran upon his return from service stated that the Veteran had trouble walking and standing at times. See January 2021 buddy statement. The Veteran told the neighbor that he was injured the last time he jumped off an Army aircraft. Id. The Veteran’s former spouse stated that his back gave him problems during their relationship. See December 2020 buddy statement. Another buddy statement noted that he knew the Veteran four or so years following discharge and since then, the Veteran has had several issues with mobility. See January 2021 buddy statement. Another buddy statement came from an individual knowing the Veteran approximately seven years following separation who indicated that the Veteran has had “a lot of issues” with his back. See January 2021 buddy statement. The Veteran was afforded multiple VA examinations to determine the nature and etiology of his back disability. In November 1995, the VA examiner indicated that the Veteran began having lower back pain sometime in the 1970s. See November 1995 VA examination. Imaging revealed degenerative arthritis in the lumbar spine at L4. Id. In August 1997 the Veteran underwent a VA examination for an opinion regarding the severity of the Veteran’s disabilities and the impact each has on employment. During the examination, the Veteran complained of low back pain for the past twenty years attributing the pain to a parachute jump in the 1970s during service. See August 1997 VA examination. A diagnosis of chronic low back pain, status post remote injury with minimal degenerative arthritis, was indicated. Id. Another VA examination occurred in January 2019 wherein the examiner found the Veteran has degenerative arthritis of the spine and intervertebral disc syndrome. See January 2019 VA examination. More specifically, the examiner noted that the Veteran was diagnosed with thoracolumbar spondylosis degenerative disc disease in 1991 and thoracolumbar spondylosis degenerative joint disease in 1995. Id. The Veteran reported that his lower and upper back were injured in the military after he jumped out of a plane and a strong wind gust hit him causing him to fall on his back. Id. Upon examination and review of the Veteran’s claims file, the examiner opined that it was less likely than not that the Veteran’s current back disability had its onset or is etiologically related to active duty service. Id. The examiner reasoned that the Veteran’s STRs were silent regarding the back including his separation examination. Id. Medical records immediately following separation were silent for back conditions and/or residuals. Id. Also, the Veteran acknowledged that he had a post-service worker’s compensation claim in the early 1990s for a neck and back injury. Id. The VA examiner stated that his opinion is based on a through and comprehensive review of the Veteran’s entire medical records, including his statements regarding onset and continuity of symptomatology since service, and having considered the Veteran’s DD 214 showing airborne training. Id. The Board finds the January 2019 VA examination includes consideration of the Veteran’s medical history and set forth all pertinent findings, such that the Board is able to make a fully informed decision. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). When considered with the evidence of record, the Board finds the examination report is adequate for adjudication of the Veteran’s service connection claim because it is based upon an accurate medical history and provides explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). The Board notes the Veteran submitted statements from other paratroopers discussing their experiences and injuries suffered during service as well as what they did during service. He contends that these statements should have been considered and addressed. These statements and articles, however, are not specific to the Veteran’s facts and medical history. They cannot support a nexus in this case and have no probative value as to the medical questions at issue. 38 C.F.R. § 3.159. It is undisputed that the Veteran has a current diagnosis of degenerative arthritis of the lumbar spine and thoracolumbar spondylosis. Degenerative arthritis of the lumbar spine and spondylosis as evidenced by November 1991 imaging and confirmed by the January 2019 VA examiner. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Service treatment records show the Veteran complained of lumbar pain during service in 1968. While the Veteran did not report any back injury or pain at separation, he competently and credibly testified that he has experienced back pain since service. Indeed, the Veteran has consistently reported within his treatment records to various providers that he had a specific paratroop jump landing that was complicated by wind and his back pain remained present since that jump. The Veteran testified that he lived with the back pain in the time following service until he had to seek treatment with a chiropractor due to the severity of his symptoms. Of great significance in this case is the multiple buddy statements submitted to the record following the hearing wherein individuals consistently corroborated the Veteran’s reports of back symptoms following separation. Indeed, the individuals that knew the Veteran immediately at separation from service stated they recall the Veteran experienced back problems and mobility issues when he returned from active duty. The individuals that knew the Veteran a few years following service also corroborated the Veteran’s continued report of experiencing back symptoms. Indeed, one of the buddy statements further corroborates the Veteran’s report of experiencing back problems following his last paratroop jump landing. The Board notes treatment records immediately following separation lack reference to back pain or other symptoms related thereto. Contemporaneous medical evidence, however, is not required under 38 C.F.R. § 3.303(b) to find that a chronic disease was “noted” in service or within a presumptive period for purposes of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488, 496 (1997). While corroborating treatment records do not exist during the applicable presumptive period, the Board finds that the Veteran credibly testified to experiencing back pain during this period. He testified that eventually his symptoms became so severe that he sought medical treatment from a chiropractor and acupuncturist sometime beginning in 1971 or early 1972. The Veteran’s statements and testimony are credible and entitled to probative weight, as they are internally consistent and consistent with other evidence of record, which shows that the Veteran has experienced back pain since service. While the January 2019 VA examiner offered a negative nexus opinion regarding direct service connection, the Board finds service connection is warranted on a presumptive basis based on continuity of symptomatology. Further, the January 2019 VA examiner’s opinion was based, in-part, on a lack of complaints corroborating symptoms following separation. The additional buddy statements of record as well as the Veteran’s testimony during the December 2020 hearing have established sufficient competent and credible evidence that the Veteran exhibited symptoms related to his back immediately following separation and remain present since separation. The Board finds these statements to be highly probative. The Board notes the January 2019 VA examiner highlighted that the Veteran had work related injuries decades after separation which involved the neck and back. The Board finds, however, there is no evidence these incidents are intercurrent causes of the Veteran’s current back disability and symptoms. In fact, in the decades prior to his work-related injuries, the Veteran continued to complain of back pain and symptoms. Indeed, the 1989 injury was followed by complaints of neck pain and contended radiating symptoms. Further, the July 2019 VA examiner did not attribute these incidents to intercurrent causes of the Veteran’s current back disability. Rather, the examiner relied upon these incidents in support of his direct service connection opinion. Resolving all doubt in favor of the Veteran, the Board finds the Veteran’s current degenerative arthritis of the lumbar spine demonstrates continuity of symptomatology since service. Thus, service connection for degenerative arthritis of the lumbar spine is warranted. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, 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.