Citation Nr: 21014692 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 17-67 785 DATE: March 15, 2021 ORDER Entitlement to service connection for a back disability is granted. Entitlement to service connection for left lower extremity radiculopathy, secondary to a back disability, is granted. FINDINGS OF FACT 1. The evidence of record is at least in equipoise as to whether the Veteran’s current back disability was incurred during his period of active duty service. 2. The evidence of record favors a finding that the Veteran’s left lower extremity radiculopathy is caused by his now service-connected back disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from June 1967 to June 1978. The matters come before the Board of Veterans’ Appeals (Board) on appeal of a December 2015 rating decision. In January 2021, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be awarded on a secondary basis for disability which is caused or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran seeks entitlement to service connection for a back disability and lower left extremity radiculopathy secondary to the back disability. He contends that his disability originated with repetitive G-force injuries sustained during flights in service, specifically an ejection seat simulation training injury. He contends that the ejection seat training resulted in back pain for which he visited sick bay and was grounded for about two weeks. He further contends that he had back pain in 1978 while doing some yard work and then continued to have back spasms and strains throughout his life. See April 2016 Notice of Disagreement; see also Hearing Transcript at page 9; see also July 2017 VA examination report. He contends that he has had intermittent and recurring back pain since leaving active duty in 1978, that this ultimately resulted in surgeries in 2008 and 2009, and that he has residual back pain and loss of sensation in his left leg. See October 2014 VA Form 21-526b; see also September 2017 Veteran Correspondence to Navy Medical Operational Training Center. The Board initially notes that the Veteran’s service treatment records are incomplete; they cannot be located and are unavailable for review. See November 2015 Department of Veterans Affairs Correspondence. In cases where a veteran’s service treatment records are unavailable through no fault of a veteran, there is a heightened obligation on the part of VA to assist the claimant in the development of his case, explain findings and conclusions, and to consider carefully the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). The Board’s analysis of the Veteran’s claims has been undertaken with these heightened duties in mind. Although the Veteran’s available service treatment records do not document an injury to the back, the Veteran has testified credibly about his in-service injury. See Hearing Transcript page 10. A review of private medical treatment records indicates that the Veteran reported a history of an ejection seat injury while in the Navy during treatment for low back pain in 1978 and has consistently reported the in-service ejection seat training injury when seeking treatment for his back pain. See July 1978, August 2008, and March 2020 private treatment records. The Veteran underwent MRIs of the lumbar spine in August and September 2008 that showed degenerative changes, multilevel disk protrusions, severe central stenosis, and radiculopathy secondary to lateral disc extrusion. See August 2008 and September 2008 MRI reports. The record reflects the Veteran’s lumbar spine surgeries in September 2008 and again in April 2009. See September 2008 and April 2009 private treatment records. The Veteran reported that his surgeon told him that the MRIs and what he observed during surgery would not have been caused by the Veteran’s reported activities of skiing and hiking as a young person; his surgeon described the damage he saw as an impact from the Veteran’s tailbone directly up the spinal column and, when the Veteran told him about the 1968 injury from the ejection seat trainer, as well as his pilot time and landings all at 4Gs, the surgeon’s remark was “that would explain what I saw.” See May 2020 Veteran Statement. The record includes a statement offered by the Veteran’s surgeon, Dr. C.A., in which he states that he would consider the Veteran’s military service involving numerous flights and landings associated with G forces and a metal ejection seat to be a contributing factor to his significant degenerative changes of the lumbar spine. See September 2014 Statement. The record also includes an opinion provided by the Veteran’s chiropractor, Dr. G.G., offered in April 2020 in which he states that he believes that the Veteran’s low back issues had their origins from the ejection seat injury the Veteran suffered during Navy jet training. He notes that for the Veteran to recall that particular injury, it had to be significant, and that the Veteran’s many medical encounters through the years, including two spine surgeries, serve to confirm the severity and the long-reaching effects of that first injury. Along with his opinion, Dr. G.G. offered a history of the Veteran’s chiropractic treatment in 1978, 1981, 1986, and 2020 and his spinal surgeries in 2008 and 2009 as well as his prognosis. See April 2020 Statement. The Veteran’s wife and daughter have provided statements in support of the Veteran’s claim in which they confirm his history of back pain, his resistance to seeking treatment until his condition was intolerable, and his worsening back pain after any type of physical activity. The Veteran’s daughter recalled in her statement that her father would be walking hunched over for quite some time after activities such as working around the house or the yard or cleaning the cars, and that she never saw her father bend over to reach anything and that he always squatted. The Veteran was afforded a VA examination in July 2017. As a result of the examination, the VA examiner opined that the Veteran’s claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran's records were reviewed, and the Veteran’s statement indicated that he had back pain after he had an ejection seat shot simulation that grounded him for about two weeks, which occurred in June 1968. The examiner noted that the Veteran had a clinical evaluation prior to becoming a pilot for the US Navy, which indicated normal musculoskeletal exam, in March 1969, and he also had a normal musculoskeletal annual exam in May 1989. The examiner noted that one of the Veteran’s medical records indicated that he had one other episode of back pain about 20 years ago from 2008 (approximately 1988) which was managed with conservative therapies. The examiner explained that the Veteran states his only severe back pain was in August 2008, which led to back surgery in September 2008 and a re-do in April 2009. The examiner noted that the Veteran had lumbar x-rays that day, with an impression of multilevel degenerative changes. The examiner explained that, in consideration of his local provider's statement and only having one episode of back pain after he had an ejection seat shot simulation training without residuals, it is less likely that his ejection seat training (post 40 years) led to his back surgery, and it is less likely that his ejection seat training aggravated his degenerative disc disease beyond the natural progression. See July 2017 VA examination report. The record includes another VA medical opinion provided in January 2018 noting that the Veteran’s condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that a review of the STR shows no evidence, diagnosis, or treatment for thoracolumbar condition or injury while on active duty but that the Veteran did complain of acute low back pain in 1978 after separation due to "doing brick work around the house." The examiner noted that the Veteran’s physical exam was normal, his x-rays were normal, and there is no evidence the current degenerative disc disease diagnosed many years after separation is in any way connected to military service. See January 2018 VA medical opinion. While the VA medical nexus opinions of record do not link the Veteran’s current back disability and lower left extremity radiculopathy disabilities to his claimed in-service injury, the opinions do not adequately consider the Veteran’s competent report of experiencing back pain symptoms since service, and rely in large part on service treatment records that, as discussed above, are incomplete. The Board finds probative the Veteran’s consistent reports to physicians of back pain and radiculopathy originating with his in-service injury. The Board finds no reason to call into question the Veteran’s credibility as to his report of having symptoms affecting his back and leg during and since service. After considering his descriptions of an in-service injury resulting in back pain, his private medical records since service showing complaints of back pain and radiculopathy since service, post-service imaging showing degenerative changes, the Veteran’s longstanding complaints of back pain and radiculopathy, the statements offered by his surgeon and chiropractor linking the Veteran’s current disabilities to his in-service injury, as well as the statements of his wife and daughter regarding his ongoing symptoms, the Board finds the evidence of record to be at the very least in equipoise as to whether the Veteran’s back disability had onset during his period of active duty service. Resolving all doubt in the Veteran’s favor, entitlement to service connection for a back disability is granted. As the Veteran’s left lower extremity radiculopathy has been medically ascribed to his now service-connected back disability, service-connected for left lower extremity radiculopathy is also granted. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Fulmer, 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.