Citation Nr: 21027969 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 01-02 539 DATE: May 7, 2021 ORDER Service connection for a lumbar spine disability is granted. Service connection for a cervical spine disability is granted. REMANDED Entitlement to service connection for a psychiatric condition, as secondary to a low back disability, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The competent evidence is in relative equipoise as to whether the Veteran has a lumbar spine disability related to active service. 2. The competent evidence is in relative equipoise as to whether the Veteran has a cervical spine disability related to active service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 5017; 38 C.F.R. §§ 3.102, 3.303. 2. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 5017; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1966 to April 1968. In an October 2000 rating decision, the Regional Office (RO) denied a petition to reopen a service connection claim for a low back disability. In a November 2002 decision, the Board reopened the claim and remanded, and referred the issues of whether new and material evidence had been submitted to reopen claims seeking service connection for cervical spine and psychiatric disabilities back to the RO. In October 2005, the Board denied the Veteran's lumbar spine disability claim. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In an October 2007 memorandum decision, the Court vacated and remanded the Board's denial of the lumbar spine disability. In January 2009, the Board remanded the claim for further development, and referred the Veteran's cervical spine disability claim and a claim for a TDIU that the Board determined was raised by the record. In a November 2009 rating decision, the RO denied reopening the claims of service connection for cervical spine and psychiatric disabilities, and denied the claim seeking entitlement to a TDIU. In a July 2013 decision, the Board reopened the cervical spine and psychiatric disability claims, and denied both issues on the merits. The Board also denied the Veteran's claims of service connection for a low back disability and TDIU. The Veteran again appealed to the Court. In a December 2014 memorandum decision, the Court vacated the Board's July 2013 decision and remanded the case to the Board. In January 2016, the Board remanded the claims of service connection for the lumbar spine disability, cervical spine disability, psychiatric condition as secondary to a spine disability, and the claim for a TDIU. In October 2020, the Board again remanded these matters for further development. 1. Entitlement to service connection for a lumbar spine disability and a cervical spine disability. The Veteran contends his cervical spine and lumbar spine disabilities were caused by injuries sustained from parachute jumps during active service, which he he did not report for fear of losing his place in the unit with which he was training. He also contends that he has had cervical and lumbar pain since service. The Veteran's DD-214 reflects the receipt of a parachutist badge. Moreover, while the Veteran acknowledges post-service spine injuries, he contends these injuries only aggravated the already weakened spine, which was injured initially during service. After reviewing the record and resolving reasonable doubt in favor of the Veteran, the Board concludes that he has current lumbar and cervical disabilities that are related to active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In that regard, service treatment records (STRs) show that at the time of separation from service in 1968, on a report of medical history, the Veteran responded "yes" to having or having had "swollen or painful joints" and "recurrent back pain", which the examiner described as insignificant. A physical examination conducted at the same time showed normal spine findings. The Board finds the Veteran has competently and credibly reported that as a paratrooper in service, he performed repeated parachute jumps; that he sustained injuries to his back and experienced back pain as a result of multiple parachute jumps, and that he has had ongoing symptoms since service. The Board also finds credible his report of having swollen and painful joints and recurrent back pain at the time of separation from service (as noted in a report of medical history). Finally, the Board finds credible his lay statements explaining the absence of in-service treatment records for his lumbar spine and cervical spine conditions; in that regard he reported he was afraid to report these injuries due to concern he would be transferred to another kind of job or duty. Post-service private medical records show that in December 1983 and December 1984, the Veteran sustained occupational injuries to his low back lifting heavy objects. A March 1984 medical record noted that the Veteran had no degenerative changes in the lumbosacral spine. It was also noted that the lumbosacral spine showed straightening most probably by muscle spasm, and that the L5-S1 disc space was narrowed, compatible with a herniated nucleus pulposus. After the December 1984 injury, a diagnosis of lumbosacral strain was noted. A June 1984 CT of spine revealed a herniated disc at L5-S1 and bulging disc at L4-L5. A November 1987 medical record showed the Veteran was seen for his lumbar disc condition that had reportedly gotten worse. A May 1991 CT scan revealed a herniated disc at the L5-S1, L4-L5 intervertebral spaces. An August 1991 treatment record revealed a diagnosis of degenerative joint disease (DJD) of the cervical spine. In June 1993, the Veteran presented with DJD, C5-C6, C6-C7, and posterior osteophyte encroaching at C5-6, C6-7. In a July 1993 consultation report, it was noted that the Veteran was seen for a complaint of cervical pain for the preceding year and a half to two years involving radiation into the hand. The diagnoses included cervical spondylosis with disc space narrowing at C5-C6, C6-C7. An August 1993 MRI examination revealed a centrally herniated disc at C5-C6, C6-C7, and DJD with narrowing of C5-6 intervertebral foramen. Additionally, a December 2002 private medical record noted diagnoses of cervical and lumbar chronic discogenic disease. On VA examinations in 2017, 2020, and 2021, the diagnoses included lumbar spondylosis, and lumbar degenerative arthritis, as well as cervical degenerative disc disease, cervical degenerative arthritis, and cervical spondylosis. The record therefore shows that the Veteran has current lumbar and cervical spine disabilities, and the question becomes whether his current lumbar and/or cervical spine disabilities are related to service, to specifically include his repeated parachute jumps therein. On this question there are multiple medical opinions in favor of and against the claim, none of which are completely probative regarding the matters at issue. The evidence against the claim includes several VA examiner's opinion, including in 2004, 2017, 2020, and 2021, some of which do acknowledge that the Veteran's current lumbar and cervical disabilities could be linked to repetitive paratrooper jumps in service, but the VA examiners ultimately conclude that the Veteran's current lumbar and cervical disabilities are not related to service. In drawing these conclusions, the VA examiners point to the lack of in-service complaints, treatment, or findings of any back or neck injuries; the lack of objective findings on the separation examination; the lack of any back or neck conditions shown in the first post-service year; and the length of time between service and medical documentation of any lumbar or cervical conditions or related complaints. Some of the VA examiners' rationale included explanations, which, standing alone, may be deemed adequate, that the nature and onset of the Veteran's current neck and back conditions were due to the aging process, and that there is medical literature -- a journal article regarding military paratroopers and parachute jumps - which found that parachute jumps did not cause intervertebral disc disease or spondylosis. The Board, however, finds these opinions to be largely inadequate as part of the rationale discounts the Veteran's competent and credible statements. In that regard, the VA examiner's opinions do not effectively consider his credible lay statements regarding continuing pain since the in-service parachute jump injuries. While the VA examiner's opinions note the Veteran's lay statements were considered, the rationales essentially reject the inclusion of his statements as actual evidence to be taken into account. The evidence in favor of the claims includes opinions from private providers, which generally link the Veteran's current lumbar and cervical disabilities to repetitive paratrooper jumps in service. These private provider opinions, however, do not take into consideration the Veteran's complete medical history to include post-service low back injuries in 1983 and 1984. The exception, however, is a May 2000 opinion in which Dr. R.A.S. does consider the post-service back injuries. Specifically, in the May 2000 report it was initially noted that the Veteran had been evaluated due to back pain associated with discogenic diseases "due to injuries that had their onset while in the service". Dr. R.A.S. then noted that the Veteran had discogenic disease of the cervical and lumbosacral spine, that he was a paratrooper in service and had multiple episodes that caused him to hurt his back, and that at that time he was afraid to report these episodes because he was concerned he would be transferred to another job or duty. Dr. R.A.S. indicated that on the Veteran's separation evaluation the notation of "recurrent back pain-insignificant" was concerning, noting that the Veteran must have mentioned back pain of a current nature, but there was no objective evidence offered to sustain a finding that it was insignificant. Dr. R.A.S. concluded this statement was subjectively dismissing the issue of recurrent back pain, which was very important in a soldier that had been a paratrooper, due to the nature of his duties and the high risk of recurrent back injuries. Dr. R.A.S. also noted the Veteran had an "extensive history of back pain that became very obvious when he hurt his back and was treated at Workers Compensation and at [VA]." Dr. R.A.S. concluded the information evaluated showed the Veteran began to complain of back pain while in service, associated to an activity that had a high risk for the injury claimed, and that he was later treated for recurrent worsening of a longstanding problem. Finally, Dr. R.A.S. opined that that it was more likely than not that the Veteran, who had been a paratrooper, had a back condition that had its onset in service and was later aggravated once he was separated from service, finding that his back problem was most likely a result of the recurrent back pain that had its onset in service and that he had marked disabilities associated with his back problem and his prognosis for recovery was poor. The Board recognizes that Dr. R.A.S. generically uses the term "back pain" without specifying cervical or lumbar, and the ultimate opinion follows recitation of some facts (post-service injuries) that only pertain to the lumbar spine, however, Dr. R.A.S. initially noted that the Veteran's "back pain" was due to discogenic disease, which is clarified as discogenic disease of the cervical and lumbosacral spine. Additionally, the Board recognizes that Dr. R.A.S. may have provided scant rationale for his findings, however, the opinion supports the competent and credible lay evidence and private medical evidence of record, as well as considers the service separation examination report and post-service injuries; thus, Dr. R.A.S.'s opinion, at a minimum, puts the issues on appeal in relative equipoise. The Board also notes that in a November 2009 report, Dr. E.R.D. opined that the Veteran's "spinal complaints [were] the consequences of his back injuries while being in active duty as a paratrooper with repetitive axial loading trauma." In rendering the opinion, Dr. E.R.D. acknowledged that spinal degeneration could have many different causes from repetitive spinal flexion/extension, to prolonged sustained flexion of the spine, to genetics, but that because the Veteran was a paratrooper, the repetitive jumping and landing with high velocity caused increased axial loading of the spine with increased pressure through the vertebral discs, which eventually would cause spinal degeneration and development of disc herniation and spondylosis. While Dr. E.R.D did not note the Veteran's post-service back injuries in rendering this opinion, Dr. E.R.D.'s opinion is considered favorable medical evidence as it explains how the Veteran's in-service injuries sustained as a result of multiple parachute jumps are likely one of the causes of his current lumbar and cervical disabilities, even if his post-service work injuries may also be one of the causes. Upon review of the record and considering the totality of the evidence, to include the Veteran's current lumbar and cervical spine disabilities, his competent and credible assertions of injuring his back and experiencing back pain as a result of multiple parachute jumps in service, and that he has had ongoing symptoms since service, as well as Dr. A.R.S.'s May 2005 opinion and the VA examiner's negative opinions, the Board finds the evidence to be at least in relative equipoise as to whether current lumbar and/or cervical spine disabilities are related to service. Accordingly, after resolving all reasonable doubt in his favor, the Board finds that service connection for chronic discogenic disease of the cervical spine and for chronic discogenic disease of the lumbar spine is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric condition, as secondary to a lumbar and/or cervical spine disability. The Veteran essentially has contended that he has a psychiatric condition as secondary to a lumbar and/or cervical spine disability. In October 1994, the Veteran filed a claim for service connection for a nervous disorder as secondary to "discs conditions". A June 1994 private medical record revealed a diagnosis of atypical depression with anxiety. It was noted that the Veteran had a chronic back condition which limited him physically and caused chronic pain, and that "due to this he developed emotional symptoms" and was being evaluated by a psychiatrist who diagnosed slight major depressive disorder. In a May 1995 substantive appeal (VA Form 9), the Veteran indicated he developed a nervous condition due to lumbar and cervical conditions. On a VA examination in December 1994, the Veteran reported difficulties with sleep at night due to lower back and neck pain. The diagnosis was sleep disorder due to cervical disk herniation and peripheral neuropathy. An April 1997 private psychiatric report revealed a diagnosis of severe dysthymic disorder with anxiety. In a June 2010 substantive appeal (VA Form 9), the Veteran indicated he was seeking service connection for a psychiatric disability as secondary to the cervical spine disability. In light of the service connection grants above, the Veteran's contentions, and the record on appeal, a VA examination is warranted to determine whether any psychiatric condition is proximately due to or aggravated by service-connected disability. 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159, 3.310; McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to a TDIU. The Veteran has not been provided with notice of the requirements for a TDIU claim. 38 C.F.R. § 3.159(b). Furthermore, he has not otherwise submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, and the RO has not undertaken development related to this issue. Accordingly, a remand is warranted for additional development. The matters are REMANDED for the following actions: 1. Contact the Veteran and afford him the opportunity to identify any recent medical treatment providers for his psychiatric disability. After securing the proper authorizations where necessary, obtain all pertinent records from the sources listed by the Veteran, which have not already been associated with the claims folder. Negative replies should be request. 2. After the above records development is completed, schedule the Veteran for an appropriate VA examination to determine the nature and probable etiology of any psychiatric condition noted. The claims file should be made available to the examiner for review in conjunction with the examination. The examiner is asked to opine as to whether it is at least as likely as not (i.e., a 50 percent or greater degree of probability) that any psychiatric condition is related to, or aggravated by, the service-connected lumbar spine disability and/or the service-connected cervical spine disability. The examiner must explain the rationale for any opinion given, and if unable to provide the requested opinion without resorting to speculation, it should be so stated, and an explanation provided. (Continued on the next page) 3. Provide the Veteran with a VA Form 21-8940 and request that he submit the completed form, with all appropriate information. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Casula 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.