Citation Nr: 21027897 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 15-04 129 DATE: May 7, 2021 ORDER Entitlement to service connection for spinal stenosis is granted. Entitlement to service connection for transverse myelitis is granted. FINDINGS OF FACT 1. The Veteran's spinal stenosis is related to his military service. 2. The Veteran's transverse myelitis is related to his military service. CONCLUSIONS OF LAW The criteria for entitlement to service connection for spinal stenosis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. The criteria for entitlement to service connection for transverse myelitis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from June 1965 to May 1969. The Veteran was awarded, among other decorations, the National Defense Service Medal and the Vietnam Service Medal. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran did not request a hearing before the Board on his December 2014 substantive appeal, VA Form 9. However, in a June 2019 correspondence, the Veteran requested a hearing before the Board. In December 2020, a hearing was held before the undersigned Acting Veterans Law Judge. A transcript of the hearing is of record. In May 2018, the Board remanded the issue for further development, which has been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) 1. Entitlement to service connection for spinal stenosis. 2. Entitlement to service connection for transverse myelitis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) competent evidence establishing that the service-connected disability caused or aggravated the nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). A disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include arthritis, may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as 'chronic' in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent cause. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Furthermore, it is the responsibility of the Board to assess the credibility and weight to be given to the evidence. Hayes v. Brown, 5 Vet. App. 60 (1993). The Veteran is seeking service connection for spinal stenosis and transverse myelitis. The Veteran asserts that his back condition was due to his military occupation specialty. While he was stationed in Thailand during the Vietnam conflict, he was assigned as a Rescue Specialist Medical Technician, and it was his duty to fly air support of the F4 fighter bombers, as well as rescue and recover said fighter crews. The Veteran was involved in a helicopter crash, which he asserts caused him to have back problems ever since his military service. He believes that his position in the helicopter (sitting on the floor), and the constant vibration to his spine probably caused spinal stenosis. He also had to jump from the helicopter. The Veteran additionally asserts that his back problems stem from his in-service ulcer condition. See February 2011 VA Form 21-4138 Statement in Support of Claim, June 2019 Correspondence, and December 2020 Hearing Transcript. Further, the Veteran claims that he was told by a physician that his back condition had been present from birth. See February 2011 VA Form 21-4138 Statement in Support of Claim. For the reasons explained below, the Board finds that the Veteran's back disabilities are directly related to his service. A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or a disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. The presumption of soundness attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports" and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304 (b). However, the recording of such a history during the entrance examination will be considered together with all other material evidence in determinations as to inception of the disability at issue. Id. Here, the Veteran underwent an entrance medical examination in 1965. No history of any back problems was recorded in the entrance medical examination report, and the Veteran's spine was evaluated as clinically normal. Therefore, a back disorder was not "noted" at the time of entry under 38 C.F.R. § 3.304 (b), and the Veteran is entitled to a rebuttable presumption of soundness as to his back disorder. In order to rebut the presumption of soundness, VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Thus, when the presumption of sound condition applies, the claimant is not required to establish aggravation. Rather, the burden remains with VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. Wagner, 370 F.3d at 1096; see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (observing that "even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness"). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306 (b). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). In June 2012, the Veteran was afforded a VA examination for back disorders and central nervous system and neuromuscular diseases. The Veteran was diagnosed with lumbar spinal stenosis, degenerative joint disease of the lumbar spine, spondylolisthesis of the lumbar spine, and transverse myelitis. The VA examiner noted that the Veteran's current spine-related function limitations were primarily due to the transverse myelitis. The VA examiner opined that it was less likely than not that the Veteran's spinal stenosis was related to his military service. The examiner concluded that the Veteran's spinal stenosis was a congenital condition per the Veteran's own documentation, and therefore could not have been caused by service. The VA examiner further opined that the Veteran's spinal stenosis, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained that it was medically plausible that the Veteran's assigned duties during military service could have aggravated his underlying congenital lumbar spinal stenosis per the current medical literature; however, the Veteran's service treatment records were consistently silent with reference to any back problems, including as documented on his military discharge physical examination dated February 1969. However, in May 2018, the Board found the June 2012 examiner's opinion to be inadequate because the opinion did not consider the Veteran's lay statements regarding back pain in service. In June 2019, a medical opinion was obtained, and the examiner stated that he was unable to find clear and unmistakable evidence that the Veteran's spinal stenosis pre-existed service. Based on the foregoing, the Board finds that the Veteran's spinal stenosis did not exist prior to service, and thus the presumption of soundness was not rebutted. Although the June 2012 VA examiner stated that the Veteran's spinal stenosis was congenital, the January 2019 VA examiner was unable to find clear and unmistakable evidence that his condition existed prior to his service. Therefore, the Board finds that there was insufficient evidence to rebut the presumption of soundness. Therefore, the crux of the instant issue is whether the Veteran's spinal stenosis/transverse myelitis, initially manifested in or was aggravated by service or, alternatively, his current spinal stenosis/transverse myelitis is related to an in-service disease or injury. Service treatment records are silent for any signs, symptoms, treatment, or diagnosis of any back disorders. However, service treatment records show that the Veteran was diagnosed with recurrent peptic ulcer disease. Moreover, the Veteran's DD 214 shows that his military occupational specialty was an aeromedical specialist. This is consistent with the Veteran's lay statements about his circumstances on the helicopter, which is where/how he asserts his injury occurred. Thus, his statements satisfy the second element of service connection, an in-service incurrence. In July 2011, the Veteran submitted a medical opinion, dated October 2011, from a private physician, Dr. D.R.J. The private physician stated that the Veteran was under his care for treatment of myelopathy and severe low back pain. Dr. D.R.J. opined that the Veteran's military service was directly responsible for much of the Veteran's severe low back pain. On a January 2019 VA examination, the examiner opined that it was less likely than not that the Veteran's spinal stenosis was related to his military service. There was no evidence of back problems in service. The Veteran's service treatment records were silent for complaints of back problems, or a back injury. The separation examination only documented peptic ulcer disease and osteosclerosis; back problems were marked as "no." Based on the documented evidence, the Veteran's spinal stenosis less likely than not had its onset in service or was otherwise related to his military service. In June 2019, the Veteran submitted a private medical opinion, dated October 2019, from Dr. P.L.G. The physician reported that the Veteran had been under his continuous care since 2006. The Veteran reported that he served as a Rescue Medical Specialist out of Ubon, Thailand, during the Vietnam conflict. According to the Veteran, he suffered trauma to his back when the helicopter he was on crashed. Any injury sustained in the crash was not reported due to combat pressures, such as further rescue and recovery efforts as well as a lack of personnel necessary to complete the mission. It was this incident, according to the Veteran, that produced trauma to his back, either causing or aggravating the Veteran's spinal stenosis, which he was unaware of at that time. The Veteran reported that he suffered almost continuous back pain, from the end of his military service in 1969 until Dr. R.M. in Florida diagnosed the Veteran with spinal stenosis at that time. Dr. P.L.G. noted that it was his understanding that the Veteran's transverse myelitis was diagnosed by Dr. D.R.J. when the Veteran was admitted to the medical center through the emergency room in August 2007. The private physician noted that he concurred with the conclusion by Dr. D.R.J., that the Veteran's severe disability was related to his military service. Dr. P.L.G. also reported that since 2007, he had seen a remarkable decline in the Veteran's physical abilities and health. Since the Veteran's transverse myelitis diagnosis, the Veteran became increasingly unable to walk normally and had marked decrease in his balance. Dr. P.L.G. believed that these facts supported the rationale of a service-connected disability as well as the opinion of Dr. D.R.J. (Continued on the next page) The January 2019 VA medical opinion is inadequate because it did not address the Veteran's lay statements regarding his back problems in service. Also, it did not take into account the positive opinions of record. Therefore, the January 2019 VA medical opinion is not probative in value and has no weight against the Veteran's claim. However, the Board finds that the October 2011 private medical opinion along with the October 2019 private medical opinion are probative in value and weigh in favor of the Veteran's claim because the Veteran's lay statements were considered and a sufficient rationale was given for the conclusion that the Veteran's back problems were related to his military service. Based on the positive opinions of record and the Veteran's credible lay statements that he had back pain ever since service, the Board finds that the Veteran's back problems all stemmed from the trauma he suffered to his back while in the military. As such, service connection for transverse myelitis and spinal stenosis is granted. J. NICHOLS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.