Citation Nr: 21022247 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-35 605 DATE: l April 15, 2021 ORDER Service connection for semi, anterior vertebral lumbar fusion of L3-L4 with degenerative arthritis and degenerative disc disease of the lumbar spine is granted. FINDINGS OF FACT 1. The Veteran’s semi, anterior vertebral lumbar fusion of L3-L4 is not a congenital defect and did not preexist service. 2. The Veteran manifested chronic back pain after sustaining in-service injuries with continued symptomatology to the present and development of semi, anterior vertebral lumbar fusion of L3-L4 with degenerative arthritis and degenerative disc disease of the lumbar spine. CONCLUSION OF LAW The criteria for service connection for semi, anterior vertebral lumbar fusion of L3-L4 with degenerative arthritis and degenerative disc disease of the lumbar spine are met. 38 U.S.C. §§ 1131, 1132, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1983 to May 1987. The Veteran requested a hearing, which was scheduled for January 29, 2018. After notices of the hearing in December 2017 and January 2018, the Veteran did not appear for the hearing nor explain his failure to appear. Furthermore, he has not requested that another hearing be scheduled. Accordingly, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(d). In November 2018, the Board, in pertinent part, remanded the issues of entitlement to service connection for tinnitus and degenerative arthritis of the lumbosacral spine, and the case has been returned for appellate consideration. In an October 2020 rating decision, service connection was granted for tinnitus, evaluated as 10 percent disabling effective July 10, 2012. As this represents a full grant of the benefit sought, the issue of entitlement to service connection for tinnitus is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In a January 2021 supplemental statement of the case, service connection was denied for degenerative arthritis of the lumbosacral spine, so that issue remains on appeal. The Board notes that VA has made multiple requests to obtain records from FCI (Federal Correctional Institution) Memphis without success. See Subsequent Development Letters, 9/02/2020 ; 10/06/2020 ; Initial Private 3rd Party Letter, 11/09/2020; Third Party Correspondence, 11/27/2020; 12/31/2020; 1/20/2020. The Veteran has stated that he also has attempted to obtain the records on several occasions without success and, therefore, wants a decision made without them. See Correspondence, received 11/18/2020; Report of Gen’l Information, 2/05/2021. The Board finds that there has been substantial compliance with the Board’s November 2018 remand, and VA’s duty to assist has been met. See 38 C.F.R. § 3.159; D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial and not strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A defect considered by medical authorities to be of congenital origin must by its very nature have preexisted a claimant’s military service. See VAOPGCPREC 82-90; see also 38 C.F.R. § 3.303(c). Accordingly, congenital and developmental defects are not diseases or injuries within the meaning of applicable legislation for VA disability compensation purposes, and no additional or confirmatory evidence is necessary. 38 C.F.R. §§ 3.303(c), 4.9. Nevertheless, service connection may be warranted for a disability resulting from a superimposed injury or disease occurring during active service. VAOPGCPREC 82-90. VA’s General Counsel has held that there is a distinction under the law between a congenital or developmental disease and a congenital defect for service connection purposes. Service connection may be granted for diseases (but not defects) of congenital, developmental, or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted aggravation of the disease within the meaning of applicable VA regulations. 38 C.F.R. § 3.306; VAOPGCPREC 82-90. At the time of a service entrance examination, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1132; see 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1092 (Fed. Cir. 2004). Only such conditions as are recorded in examination reports are considered as ‘noted.’ 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is ‘noted’ at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238, 245 (1994). The Veteran seeks service connection for a back disability. The Board concludes that it is at least as likely as not that symptoms of chronic back disability, including those related to the development of semi, anterior vertebral lumbar fusion of L3-L4 with degenerative arthritis and degenerative disc disease of the lumbar spine, manifested during active duty service after injuries and continued until the present. 38 U.S.C. §§ 1131, 1132, 5107; 38 C.F.R. §§ 3.102, 3.303; Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Veteran was released from prison in April 2012 and, thereafter, re-established care with VA with a diagnosis of arthritis of the back. See CAPRI (81 pp), received 2/21/2020. X-rays taken of the lumbar spine in October 2012 revealed “post vertebral body fusion changes seen in the L3-L4” with mild retrolisthesis at L2-L3 and mild degenerative changes at L5-S1. See CAPRI (208 pp), received 2/21/2020. During an October 2012 VA examination, the Veteran was found to have degenerative arthritis of the lumbosacral spine. See VA Examination, received 10/12/2012. Likewise, during an August 2020 VA examination, he was found to have degenerative arthritis of the spine as well as mild multilevel degenerative disc disease of the lumbar spine. See C&P Exam, received 8/25/2020. Consequently, the Board finds that the Veteran’s back disabilities consist of degenerative arthritis and degenerative disc disease of the lumbar spine. As discussed below, his back disabilities also include semi, anterior vertebral lumbar fusion of L3-L4. Accordingly, the first Shedden element is met. The Veteran is in receipt of the Parachutist Badge. See DD Form 214, received 3/08/2010. During the Veteran’s March 1983 examination for enlistment into active duty service no back disability was reported or revealed. See STR, received 3/17/2015. That being the case, the presumption of soundness attached as to any back disability. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). While he was serving at Fort Bragg, North Carolina, in April 1984, he was treated for complaint of both legs and back hurting after rucksack marching, jumping, and running. The only diagnosis noted was pes planus. He was also seen twice between November to December 1985 for gross blood in his urine along with right flank pain. Since he did not subsequently pass a stone, it was found to be probable jogger’s hematuria. As the Veteran was treated during service for complaints related to back pain and he served as a parachutist, the second Shedden element is met. The Veteran has stated that during basic training he started to have “stiffness along with back pain radiating down” to his lower extremities. At his permeant station, the Veteran indicated he ran with boots and 35-pound rucksacks for 10 miles twice a month, and his symptoms worsened. He has stated that, as a paratrooper, he had numerous jumps in excess of 1500 feet, which resulted in “extreme landings” on his feet. He stated that he had pain in his back with radiation to lower extremities. See Correspondence, received 2/19/2019; see also Statement, received 4/27/2010. The Veteran has stated that there were two reasons why he did not seek medical treatment for so long. The first was his allegation that in service it was believed that pain was a sign of weakness and that soldiers were to push through the pain. He witnessed the soldiers who did complain of pain being paraded around in front of the group as an example. He was afraid of such embarrassment. He stated that, as it was, he was bullied. The second reason was that, during basic training, he was the victim of military sexual assault, such that he became isolated from everyone and he could not bring himself to allow someone to touch him for treatment. Id. The Board notes that in November 2018 it granted service connection for PTSD as due to military sexual trauma, which is currently evaluated along with major depressive disorder as 100 percent disabling. See February 2021 Rating Decision. Mr. A.J., a friend of the Veteran for 40 years and who had lived with the Veteran and his mother several times, stated that, when the Veteran came home on leave, he complained of back pain. On one visit after completing jump school, he had injured his ankle and back such that he “couldn’t hardly walk.” The Veteran stated he injured himself during a jump when hitting the ground. On other visits, it was obvious he was in pain because he was holding his back. He would move slowly when getting out of the car and getting up in the morning. He often had facial expressions of being in pain. After separation from service, the Veteran would make comments about his back “killing” him. It was stated that, prior to service, the Veteran had no difficulty working in the yard, but after service, it took him longer to do the same things and he complained of having pain. After completing the work, the Veteran would rest in a recliner or in bed, sometimes for days. Mr. A.J. stated that each time it was suggested that the Veteran go to a doctor, he declined. See Buddy/Lay Statement, received 3/03/2019. During an October 2012 VA examination, the Veteran provided a history consistent with that outlined above. It was opined that the Veteran’s current back condition was less likely as not related to his conditions in service. It was opined that the noted in-service complaint of back pain with normal examination resolved as there was a normal separation examination. It was opined that the current back condition was a “separate and distinct process with no relationship.” It was also stated that there were no “immediate post-military medical records (civilian or military) that document a back condition.” See VA Examination, received 10/12/2012. In July 2018, the Veteran began chiropractic care at Downriver Spine. See MTR, received 3/10/2020; 4/18/2019. A January 2019 CT of the lumbar spine was read as showing “partial osseous fusion across the anterior and mid aspect of the L3 and L4 vertebral bodies, which was noted as similar to prior X-ray examination. It was stated that “[t]his may be congenital or postsurgical in nature. Alternatively this may be sequelae of prior discitis or trauma.” In the impression section of the report, the language was changed to read: “This may be congenital or postsurgical in nature. Alternatively but less likely this may be sequelae of prior discitis or trauma.” See CAPRI, received 6/22/2020. In April 2019, Dr. H.G. wrote: To date, [the Veteran] is making satisfactory progress. [The Veteran’s] relief of symptoms at this time will unfortunately continue to be temporary due to life long injuries sustained over a prolonged period of time. A form of severe repetitive stress disorder, more common in paratroopers with a history of multiple parachute jumps. X-rays show a semi, anterior vertebral lumbar fusion of L3 and L4, and severe degenerative joint disease in both knees and ankles; these injuries were certainly sustained during the patient’s time as an active paratrooper in the military. See MTR, received 4/18/2019. After an August 2020 VA examination, the examiner opined that the Veteran’s focal kyphotic deformity at L3-L4 in the lumbar spine X-ray was “most likely congenital” because the Veteran denied any back surgery. It was opined that the Veteran’s lower back condition claimed was less likely as not incurred in or caused by service. It was explained that “[d]egenerative arthritis is a natural condition occurs due to degenerative changes with advancement of age (ageing process) with new osteophyte formation.” It was noted that the medical examination on March 17, 1987, “revealed normal spine exam and no lower back conditions reported.” It was also noted that there was a long time interval between discharge and the current diagnosis. See C&P Exam, received 8/25/2020. In October 2020, the examiner stated that a review of service treatment records “indicated that his lower back pain was resolved at time of discharge. His spine & lower back exam were normal at time of discharge from service.” See C&P Exam, received 10/29/2020. In December 2020, the examiner opined that pursuant to the service treatment records, “the Veteran’s lower back pain including from parachuter activity was resolved at time of discharge from service. His spine and lower back exam were normal at time of discharge. Unable to locate any medical records with continuation of lower back pain due to parachute activity within one year of discharge from service.” See C&P Exam, received 12/14/2020. As factfinder, the Board has the responsibility to determine the credibility and weight to be given to the evidence. See Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). Because opinions as to diagnosis or etiology generally require specific medical training, they are beyond the competency of a lay person, and accordingly, the Board finds the medical findings more probative as to those issues. See Jandreau v. Nicholson, 492 F.3d 1372, 1376–77 (Fed. Cir. 2007). The Veteran and his lay witness, however, are entirely competent to report his symptoms, medical history, and facts of which they have personal knowledge. See 38 C.F.R. § 3.159(a)(1)–(2) (defining competent medical evidence and competent lay evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation). Furthermore, here, the Board finds the lay evidence credible and highly probative as to his chronic ongoing back pain since active duty service because it is consistent internally and supported by medical evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Additionally, the Board has the responsibility of weighing conflicting medical opinions and may place greater weight on one physician’s opinion over another depending upon factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300–04 (2008); Prejean v. West, 13 Vet. App. 444, 448–49 (2000) (stating that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). First, the Board finds that the preponderance of the evidence is against finding that the Veteran’s semi, anterior vertebral lumbar fusion of L3-L4 is congenital in nature. The language in the January 2019 CT report of the lumbar spine changed from initially stating that the fusion “may be sequelae of prior discitis or trauma” to “[a]lternatively but less likely this may be sequelae of prior discitis or trauma.” [Emphasis added]. No rationale was provided for the language change, and the radiologist lacked the critical fact that the Veteran had been a paratrooper. Consequently, the August 2020 VA examiner’s expansion of the radiologist’s language to opine that the fusion was “most likely congenital” because the Veteran denied back surgery is completely without foundation. This is particularly so because the examiner had the benefit of the 2019 lay statements and was aware of the Veteran’s service as a paratrooper. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate or incomplete factual premise is not probative). Therefore, the January 2019 CT lumbar spine report equally supports a finding that the Veteran’s lumbar spine fusion was the result of trauma. Dr. H.G.’s primary practice is treating back injuries and, as a treatment provider to the Veteran over a period of time, had intimate knowledge of both the Veteran’s physical condition as well as his service history. Dr. H.G. considered the Veteran’s reports of ongoing back pain since service, in-service duties of jumping out of airplanes resulting in repetitive musculoskeletal stress, and the commonality of this activity resulting in the disability such as the Veteran’s. Consequently, the Board finds highly probative the opinion that the Veteran’s back disabilities relate to injuries sustained during service. Consequently, for the purposes of this decision only based upon this record, the Board concludes that the Veteran’s current semi, anterior vertebral lumbar fusion of L3-L4 is not a congenital defect. That being the case, 38 C.F.R. § 3.303(c) does not apply. Second, the Board finds all the VA negative medical opinions—October 2012, August 2020, October 2020, and December 2020—to be problematic for the same reason. They assign the cause of the Veteran’s degenerative changes to the spine, joints as well as discs, to aging solely because he failed to seek more medical attention during service and any medical attention after service. The initial examiner lacked the benefit of the 2019 lay evidence, but the latter examiner did have that benefit. In his statement, the Veteran clearly articulated the two reasons for not reporting his injuries and pain in service as well as for shunning treatment post service. Mr. A.J. clearly reported numerous observed symptoms of pain and injury when the Veteran was visiting during service as well as after separation. Consequently, the Board finds the lay evidence more probative than the examiners’ medical opinions as to the etiology of the Veteran’s back disabilities. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (explaining that a VA examination is inadequate if the examiner does not consider lay evidence). (Continued on the next page)   Consequently, the Board finds that, when read together, the lay evidence of repeated and chronic in-service injuries with continuous symptomatology coupled with Dr. H.G.’s medical opinion establishes that it is at least as likely as not that the Veteran’s back disabilities are directly related to service. Accordingly, the third Shedden element is met, and service connection for semi, anterior vertebral lumbar fusion of L3-L4 with degenerative arthritis and degenerative disc disease of the lumbar spine is warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Leanne M. Innet, 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.