Citation Nr: 21015137 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 18-40 065 DATE: March 16, 2021 ORDER Service connection for degenerative disc disease (DDD) of the lumbar spine is granted. Service connection for residuals of a traumatic brain injury (TBI), to include headaches and epistaxis, is granted.   FINDINGS OF FACT 1. The Veteran’s DDD of the lumbar spine is related to service. 2. The Veteran’s residuals of a TBI, to include headaches and epistaxis, are related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for DDD of the lumbar spine 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 residuals of a TBI, with headaches and epistaxis, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1963 to June 1967. The case is on appeal from a November 2014 rating decision. In November 2020, the Veteran testified at a Board hearing on the issues before the undersigned Veterans Law Judge. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(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.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Service connection for a low back condition. The Veteran contends that his current low back condition is a result of a fall that occurred during his military service. He states that he fell approximately eight feet through an open manhole, landing in a “V” configuration on his tailbone, and that his back has been troubling him ever since. He also argues that although the condition was reoccurring, he did not seek treatment prior to 1998 because he was supporting his family, could not take time away from work, and had no medical insurance. See April 2015 Correspondence and November 2020 Board Hearing Transcript. Service treatment records (STRs) indicate that in April l965, the Veteran fell through a manhole/trapdoor inside a building while working as a telephone specialist. He sustained a concussion with a skull fracture described as “probably left occipital stellate non-depressed,” received sutures, and was hospitalized for five days. Thereafter, the Veteran sought treatment for back pain in April 1966 and December 1966, and at the time of his separation exam, the examiner noted that he had “recurrent back pain associated with fall suffered in Apr 65.” Private treatment records show the Veteran began to receive formal treatment for low back pain in April 1998 following a work incident in which he pulled with “significant force” on a spanner wrench. In 2006, a private treatment provider noted that he had back pain without a clear cause, but that “I really do not think we can tie this to lifting that he did at work as there was no specific injury,” and in March 2011 it was noted that the condition could be the result of a possible military injury. The Veteran was afforded a VA examination in April 2014. The examiner found diagnoses of lumbosacral strain and DDD, but opined that the condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury. She provided the rationale that there was no documentation in his STRs that his back was injured during the fall, that he was only seen once for back pain during service, and that his post-military job as a mechanic was physically demanding. The physician’s assistant also stated that x-rays showed arthritis but without evidence of old trauma. In October 2016, the Veteran submitted the opinion of his private physician. After discussion with the Veteran, and review of his records at the clinic from which he receives treatment, the physician noted that his ongoing intermittent difficulties with his back go beyond the length of time one would normally expect for the type of injury strain that was work-related. He then opined that it was more probable than not that the basis of his lower back pain and DDD was sustained in his fall injury in April 1965. In November 2016, the Veteran underwent an examination by a rehabilitation physician at a VA facility for a possible TBI. The VA physician detailed the Veteran’s history that included his fall during service while working at a communications plant, in which he hit both his back and his head. The Veteran described that he experienced the onset of back pain following the fall, which has been chronic and persistent since the initial injury, and is exacerbated by any back movement. The physician also noted the incident at work in which the Veteran “exacerbated his previously existing back injury” while on the job. He was assessed with chronic low back pain secondary to spondylosis and facet arthropathy. See November 2016 Medical CAPRI Document. Following his November 2020 Board hearing, the Veteran submitted a November 2020 opinion of his treating chiropractor. He opined that it was likely that the compression to the lower lumbar spine resulted from the fall incurred during his military service when he landed on his tailbone, and that it led to not only acute pain at the time, but accelerated the degenerative process in that region of the spine contributing to his diagnosis. Thus, the record includes opposing medical opinions as to the nexus element of the claim, two positive and one negative. Both the opinion of the April 2014 VA examiner and the October 2016 opinion of the private physician indicated review of, and cited to, his medical record, and provided reasoned rationale. Additionally, the November 2016 examination by the rehabilitation specialist discussed that the Veteran’s back strain experienced at his work exacerbated his previously existing back injury. The evidence of positive and negative medical opinions is at least in relative equipoise. In consideration of the evidence, and when resolving reasonable doubt in the Veteran’s favor, the Board finds that he currently has DDD of the lumbar spine, which is related to service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection is warranted for DDD of the lumbar spine. 2. Service connection for residuals of a TBI. The Veteran contends that he suffered a TBI during service when he fell approximately eight feet through an open manhole, landing on his tailbone and hitting his head. He states that he does not remember the incident or being in the hospital for five days, only his discharge. See November 2020 Board Hearing Transcript. STRs indicate that in April l965, the Veteran fell through a manhole/trapdoor inside a building while working as a telephone specialist. He sustained a concussion with a skull fracture described as “probably left occipital stellate non-depressed,” received sutures, and was hospitalized for five days. At the time of his separation exam, the examiner noted the skull fracture, hospitalization, and 1.5 inch laceration on the back of the head. Private treatment records show the Veteran began reporting a history of migraines with visual aura and ophthalmic migraines as early as December 2001. In March 2014, the claims file was reviewed by a VA psychiatrist, that indicated he was also formerly a neurosurgeon. After conducting an Acceptable Clinical Evidence (ACE) process, he marked that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury. He stated that the diagnosis of concussion in the STRs was generally regarded as a synonym for loss of consciousness from a head injury, and it appears likely that a period of altered brain function did occur. He opined that given the available data, it was at least as likely as not that a mild TBI did occur. However, as this was not an in-person examination, he stated that his opinion cannot go further as to what residual impairments are now present and defers to the reports of other examiners. Thereafter, in April 2014, a VA nurse practitioner examined and completed a disability benefits questionnaire (DBQ). She noted that he reported that following the April 1965 fall, he developed daily headaches, which have improved over time. She found that the Veteran exhibited no subjective symptoms or any mental, physical, or neurological conditions or residuals attributable to a TBI, and that observation revealed no obvious deficits in the Veteran's speed of cognitive processing, mental efficiency, or visuomotor integration. A psychologist also conducted an examination in April 2014, and opined that any cognitive and psychological/neurobehavioral symptoms are less likely as not related to remote, mild TBI. She attributed any current symptoms to mental health and psychosocial stressors, i.e., anxiety, mild mood symptoms, and caring for his wife after recent surgery. She also noted the possible cognitive decline due to normal aging and cardiovascular risks. In October 2016, the Veteran submitted the opinion of his private physician. After discussion with the Veteran and review of his medical records, the physician opined that sustaining a fall with enough force to cause a skull fracture would have resulted in a more probably than not basis for a TBI. However, he stated that he has no indication that there is ongoing dysfunction attributable to the TBI. In November 2016, the Veteran underwent an examination by a rehabilitation physician at a VA facility specifically for a possible TBI. The VA physician detailed the Veteran’s history that included his fall during service while working at a communications plant, in which he hit both his low back and his head. The Veteran described that following the head injury, he experienced daily headaches that were usually associated with visual aura of flashing and wavy lines. He stated that the headaches continued, although they have decreased in frequency to now about 2 to 3 times per week. The Veteran also endorsed the onset of chronic nosebleeds following the head injury in service, experienced once to twice per week, since 1965. The rehabilitation physician assessed the Veteran with “Concussion with Chronic post-concussive headaches, and also chronic epistaxis [nosebleeds].” See November 2016 Medical CAPRI Document. Thus, the record includes the opinion of the April 2014 psychologist failing to find a nexus between his psychological/neurobehavioral symptoms and his in-service fall, and the nurse practitioner finding no subjective or observational deficits in the Veteran’s cognitive processing, mental efficiency, or visuomotor integration. It also contains the opinions of his private physician and a VA psychiatrist/ neurosurgeon opining that it was at least as likely as not that the Veteran sustained a TBI as a result of his April 1965 fall, although uncertain of any current residual symptoms of his TBI. However, the November 2016 TBI examination by the rehabilitation specialist found a diagnosis of chronic post-concussive headaches and chronic epistaxis, linking these symptoms to his in-service injury. Thus, the evidence of positive and negative medical opinions is at least in relative equipoise. In consideration of the evidence, and when resolving reasonable doubt in the Veteran’s favor, the Board finds that he currently has residuals of a TBI, to include headaches and epistaxis, which are related to service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Accordingly, service connection is warranted for residuals of a TBI. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morford, 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.