Citation Nr: 21032327 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-11 217A DATE: May 26, 2021 ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine is granted. Entitlement to service connection for sciatica of the left lower extremity is granted. FINDINGS OF FACT 1. The Veteran's degenerative disc disease of the lumbar spine is attributable to a parachuting accident which occurred during his period of active service. 2. The Veteran's sciatica of the left lower extremity is caused by his degenerative disc disease of the lumbar spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative disc disease of the lumbar spine are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for sciatica of the left lower extremity due to his service-connected degenerative disc disease of the lumbar spine are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to December 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran's appeal was remanded by the Board for additional development. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The issue of entitlement to service connection for a respiratory disability, to include chronic obstructive pulmonary disease (COPD), was remanded by the Board in August 2019. The Agency of Original Jurisdiction (AOJ) granted service connection for COPD in a March 2021 rating decision. That issue, having been granted in full, is no longer for appellate review. Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The Veteran testified at a Board hearing in January 2019. The Veterans Law Judge who conducted that hearing has since left the Board. The Veteran was notified of this in April 2021. The Veteran declined the option to have another hearing before the Board; thus, the Board will proceed with adjudication of this appeal. The Board acknowledges the Veteran's report of possible femoral nerve involvement in the symptomatology of the left lower extremity. See Hearing Transcript, p.8. If the Veteran believes that separate service connection is warranted from the conditions granted herein, he is encouraged to file a claim on the appropriate VA-promulgated form. Service Connection, Generally Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A layperson is competent to report on the onset and continuity of current symptomatology based on personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, at 1376-77 (Fed. Cir. 2007). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry: (1) determining the competency of the source; (2) determining credibility, or worthiness of belief, and (3) weighing its probative value. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded. 1. Service connection for degenerative disc disease of the lumbar spine In October 2012, the Veteran filed a claim for service connection for a lower back condition. The Veteran submitted a statement indicating that during his period of service he entered airborne training. He stated that on his third jump his parachute did not deploy properly and he descended at a greater than average rate of speed. He stated that he hit the ground "very hard" and was told to remain on the ground for treatment by the field ambulance. He reported that he was sidelined for the remainder of the day and the following day, but he was then able to return to regular training status and finished the remainder of the course. In April 2019, the Veteran provided testimony regarding his claim for service connection. The Veteran testified that he had a long history of lower back pain dating back to his in-service injury. He reported that he noticed lower back discomfort almost immediately after his landing, but that he did not seek treatment beyond his initial emergency evaluation. He stated that he would self-medicate for recurrent instances of back pain by using heating pads and taking over the counter medications. However, in 2010, his symptoms worsened, and he sought an orthopedic consultation due to radiating pain into his left leg. He testified that the only significant injury that he could remember that resulted in lower back pain was his in-service parachute jump injury. The Veteran's service records report that the Veteran completed 15 parachute jumps during his period of service. The Veteran's service medical records are silent for any report of a back injury or radiating pain from the lower back. His separation examination in October 1967 was reported to be normal and the Veteran denied recurrent back pain on a Report of Medical History at that time. Treatment records from the Veteran's private orthopedic physician, S.L.S., M.D., report that the Veteran sought treatment for low back pain in October 2010. The physician stated that the Veteran reported a history of low back pain, including treatment for a disc herniation 4-5 years prior. The physician stated that the Veteran reported increased pain after manually pushing a self-propelled lawnmower after a mechanical malfunction. Approximately 24 hours later, the Veteran reported pain shooting into his left lower extremity. The Veteran was given an MRI which revealed severe degenerative changes at L4-L5 and L5-S1 levels that were impinging on the nerve roots of the left side. In July 2013, the Veteran underwent a VA examination regarding his claim for a lower back condition. The examiner stated that the Veteran denied any history of low back pain between his in-service parachute injury and the onset of back pain in 2010. The examiner diagnosed the Veteran with a low back strain. The examiner opined that the Veteran's current lower back condition was not caused by, or a result of his reported in-service injury. The examiner stated that there is no objective evidence of current lower back condition with onset in military service or shortly after discharge from military service. The examiner stated that this opinion was based upon the Veteran's reported that his current lower back started in 2010-2011 approximately 33 years after discharge from military service. In January 2016, another VA medical opinion was obtained. The examiner opined that the Veteran's current degenerative osteoarthritis and degenerative disc disease of the lumbar spine was less likely than not (less than 50 percent) incurred or caused by his parachuting injury during the service. The examiner stated that the discharge Report of Medical History and/or Report of Medial Examination relays the overall health of the Veteran by the time of his military separation. It did not demonstrate that the Veteran had any lingering issues related to any parachute jumps while on active duty. Based upon this, the examiner opined that it is more likely that no future residual problems would be expected from these resolved, in service situations. The examiner also stated that "minor back injuries do not usually lead to the development of lumbar spine abnormalities" and provided literature regarding the definitions of "minor" and "major" back trauma. The examiner noted that "major back trauma would include that of traffic accidents at greater than 30 mph, falls from heights greater than three feet, and lifting injury with awkward posture and greater than 60 lbs." The examiner opined that assuming a back injury did occur while parachuting, it would fit the criteria for minor trauma based on the above information and would not have contributed to the current low back condition. The examiner also noted that the Veteran was fifty-eight years old at the time that his degenerative lumbar spine changes were documented. This would be the age in which there was a high likelihood of having these changes. Therefore, it is more likely that the gradual wear and tear degenerative processes were more likely to result in the Veteran's present lumbar spine condition as compared to the uneventful, atraumatic parachute jumping in the service so many years earlier. In June 2019, the Veteran submitted a medical opinion provided by E.S., M.D., regarding his lower back condition. The physician stated that the Veteran had treated with her practice periodically since 2010. The physician noted the Veteran's reports of parachute jumps during his period of service and that during one of his jumps his parachute did not deploy correctly resulting in an impact with the ground at an increased rate of speed. It was stated that the Veteran contacted the ground feet first with impact compression far greater than usual. The physician reported that the Veteran's injury resulted in chronic pain and that it was at least as likely as not that the Veteran's activities as a paratrooper resulted in his arthritic changes of the lumbar spine and his sciatica. After a review of the evidence, the Board finds that service connection for degenerative disc disease of the lumbar spine is warranted. The evidence establishes that the Veteran has been diagnosed with degenerative disc disease of the lumbar spine during the appeal period; as such, the first element of service connection is met. The Veteran has reported that he made repeated parachute jumps during his period of service including one where his parachute did not deploy properly, and he impacted with the ground at an increased rate of speed. The Veteran's service treatment records document that the Veteran underwent airborne training and that he made 15 jumps during his period of service. The Veteran is competent to provide reports of impacting the ground at an increased rate of speed after difficulty deploying his parachute. See Layno. The Board finds the Veteran's consistent reports of suffering back pain after a hard impact with the ground to be credible. As such, the competent, credible lay evidence establishes an in-service injury or event. Finally, the Board finds that the medical evidence of record is at least in equipoise regarding a finding that the Veteran's degenerative disc disease of the lumbar spine is due to his in-service activities as a paratrooper. The Board finds probative the opinion of the June 2019 opinion provided by E.S., M.D. The physician noted the Veteran's reports of parachute jumps during his period of service and that during one of his jumps his parachute did not deploy correctly resulting in an impact with the ground at an increased rate of speed. The physician indicated that based upon the Veteran's history of contacting the ground feet first with impact compression far greater than usual with a history of chronic back pain that it was at least as likely as not that the Veteran's in-service activities as a paratrooper resulted in his arthritic changes of the lumbar spine. There is no evidence that the 2019 private physician was not competent or credible, and as the opinion was based on accurate facts and review of the Veteran's history, the Board finds this opinion is entitled to significant probative weight as to the etiology of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds this opinion is at least in equipoise with the opinions provided by the 2013 and 2016 VA examiners. The 2013 VA examiner did not consider the Veteran's diagnosis of degenerative disc disease. The examiner also stated that their opinion was based upon lack of evidence of low back pain prior to 2010; however, the October 2010 private treatment records report a long history of low back pain prior to 2010. As the 2013 VA examiner's opinion did not consider pertinent facts of record, it is found to be of little probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, while the 2016 VA opinion is of significant length and discusses medical literature related to paratroopers and the etiology of degenerative disc disease, the Board notes inconsistencies within the 2016 examiner's rationale that call into question the examiner's conclusion. First, the examiner defines "major back trauma" to include traffic accidents at greater than 30 mph, falls from heights greater than three feet, and lifting injuries with awkward posture and greater than 60 lbs. and states that the Veteran's in-service injury would meet the criteria of "minor" back trauma. The examiner does not acknowledge that the Veteran's rate of speed when he met the ground on each of his jumps is unknown (though the Veteran estimates approximately 30 miles per hour during his 2019 hearing) and that the Veteran clearly was falling from a much greater height than three feet. Further, the examiner indicates that the Veteran's condition is age related as it was diagnosed at 58; however, this does not account for the Veteran's history of back pain reported in his October 2010 treatment notes. As the Board finds that the 2019 private opinion is of at least equal probative weight as the opinions provided in 2013 and 2016, the Board finds that the evidence is at the very least in equipoise as to whether the Veteran's degenerative disc disease of the lumbar spine was caused by his in-service activities as a paratrooper. As a result, the Board finds that the criteria for entitlement to service connection for degenerative disc disease of the lumbar spine are met. 38 C.F.R. §§ 3.102, 3.303. 2. Service connection for sciatica of the left lower extremity Service connection may also be warranted for a disability which is proximately due to, aggravated by, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). Here, the Veteran has claimed entitlement to service connection a condition claimed as left leg neuropathy as secondary to his lumbar spine disability. The 2013 VA examiner opined that the Veteran did not have radiculopathy of the left lower extremity and diagnosed left lower extremity peripheral neuropathy. The examiner noted the Veteran's reports of radiating pain but stated that the Veteran's objective symptoms were consistent with a glove and stocking distribution associated with peripheral neuropathy. The 2016 VA examiner did not discuss whether the Veteran had a diagnosis of left lower extremity radiculopathy. The 2019 private examiner reported a diagnosis of chronic sciatica and neuropathy. The physician opined that based upon the Veteran's history of contacting the ground feet first with impact compression far greater than usual with a history of chronic back pain that it was at least as likely as not that the Veteran's in-service activities as a paratrooper is the reason for his arthritic changes of the lumbar spine and sciatica. As discussed above, the Veteran has been granted entitlement to service connection for degenerative disc disease of the lumbar spine. After weighing the evidence of record, the Board finds that the evidence is at least in equipoise regarding whether the Veteran's service-connected degenerative disc disease of the lumbar spine causes sciatica of the left lower extremity. While the 2013 examiner stated that the Veteran did not have radiculopathy and that the Veteran's symptoms were consistent with a glove and stocking distribution provided by peripheral neuropathy, the Board notes that a diagnosis of a peripheral neuropathy does not preclude a diagnosis of left lower extremity radiculopathy. The Board finds probative that the 2019 physician provided a diagnosis of left lower extremity sciatica and that it is at least as likely as not a result of his arthritic changes of the lumbar spine. This opinion is supported by the reported findings of the physician that reviewed the October 2010 MRI. The October 2010 physician noted that the MRI revealed severe degenerative changes at L4-L5 and L5-S1 levels that were impinging on the nerve roots of the left side. The physician stated that the findings of the examination "quite well explained his symptoms" including his reports of shooting pain into his left lower extremity. As the opinions provided by the 2019 and 2010 examiner address the Veteran's reports of radiating pain and the reports of nerve impingement on the October 2010 MRI, the Board finds that the Veteran has a diagnosis of sciatica of the left lower extremity that is due to his Veteran's service-connected degenerative disc disease of the lumbar spine. (Continued on the next page) Accordingly, the Board finds that service connection for sciatica of the left lower extremity is warranted as secondary to the Veteran's service-connected degenerative disc disease of the lumbar spine. 38 C.F.R. §§ 3.102, 3.310. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.M. Johnson, 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.