Citation Nr: 21041433 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-09 627 DATE: July 9, 2021 ORDER Reopening of the claim for entitlement to service connection for low back strain is granted. Entitlement to service connection for lumbar spine degenerative disc disease, spinal stenosis, and L4-5 spondylolisthesis is granted. REMANDED Entitlement to an effective date earlier than October 19, 2017, for the grant of service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) and depression, is remanded. FINDINGS OF FACT 1. In a September 1987 rating decision, entitlement to service connection for low back strain was denied. 2. New evidence received since the September 1987 rating decision relates to an unsubstantiated fact and raises a reasonable possibility of substantiating the claim for entitlement to service connection for lumbar spine disability. 3. Resolving reasonable doubt in the Veteran's favor, his lumbar spine degenerative disc disease, spinal stenosis, and L4-5 spondylolisthesis are at least as likely as not related to an in-service parachuting incident in which he jammed his back while landing. CONCLUSIONS OF LAW 1. The September 1987 rating decision denying service connection for low back strain is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.200, 20.1103. 2. New and material evidence has been received since the September 1987 rating decision, and the claim for service connection for lumbar spine disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for lumbar spine degenerative disc disease, spinal stenosis, and L4-5 spondylolisthesis are 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 August 1982 to July 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2012 and May 2018 rating decisions of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Veteran testified before the Board at a June 2020 virtual hearing; a transcript of the hearing is associated with the claims file. Because a veteran without medical expertise is not competent to diagnose his particular condition, the Board has broadened the scope of the claim for entitlement to an effective date earlier than October 19, 2017, for the grant of service connection for PTSD. That claim now incorporates entitlement to service connection for any acquired psychiatric disorder, including PTSD and depression, prior to October 19, 2017. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). With respect to the claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for low back strain The claim for entitlement to service connection for low back strain was addressed in a September 1987 rating decision. The AOJ found no nexus to service because the low back strain documented in service was acute and transitory. The AOJ also noted a lack of current disability, identifying only "subjective complaints with some tenderness found on VA examination without any actual pathology." The AOJ informed the Veteran of its decision in a September 1987 letter. The Veteran did not appeal the decision. The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b); King v. Shinseki, 23 Vet. App. 464, 468 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). The finality of a previously disallowed claim can be overcome by the submission of new and material evidence, however. See 38 C.F.R. § 3.156. New evidence means "evidence not previously part of the actual record before agency adjudicators." 38 C.F.R. § 3.156(a). "Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim." Id. "New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim." Id. In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened the evidence is presumed to be credible. Savage v. Gober, 10 Vet. App. 488, 49394 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). Since the September 1987 rating decision, additional evidence has been associated with the claims file, including an October 2013 private chiropractor letter and January 2015 private independent chiropractic evaluation. These two documents associated the Veteran's current back disabilities with an in-service parachuting incident. This evidence is new because it was not associated with the record at the time of the September 1987 rating decision. This evidence is material because it relates to a previously unestablished element of the Veteran's claim: a nexus to service. Thus, new and material evidence has been received and reopening the claim for entitlement to service connection for low back strain is granted. 2. Entitlement to service connection for lumbar spine degenerative disc disease, spinal stenosis, and L4-5 spondylolisthesis The Veteran asserts that his current low back disabilities are related to an in-service parachuting incident in which he jammed his back while landing. The Board concludes that the Veteran has current lumbar spine disabilities related to the in-service parachuting incident. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 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). The October 2013 private chiropractor letter diagnosed the Veteran with multilevel degenerative disc disease, spinal stenosis, and L4-5 spondylolisthesis. An October 2017 VA examination diagnosed degenerative arthritis of the thoracolumbar spine and spinal stenosis. During service, on June 5, 1986, the Veteran was seen for complaints of low back pain for six days. The service treatment record assessed the Veteran with "Poss[ible] slightly pulled Latisimus Dorsi muscle L[eft] side." Thus, the question becomes whether the current disabilities are related to service. On this question there are probative opinions in favor of and against the claim. Before discussing the opinions for and against the claim, the Board notes that there is contemporaneous evidence supporting and contradicting continuing pain after service. A June 2, 1986 separation examination evaluated the Veteran's spine as normal. As noted above, however, the Veteran complained of low back pain in the June 5, 1986 service treatment record and was diagnosed with "Poss[ible] slightly pulled Latissimus Dorsi muscle L[eft] side." When filling out a June 20, 1986 private chiropractor patient information sheet, the Veteran listed his major complaint as "Neck stiff, lower back sore & stiff." A June 23, 1986 private chiropractic initial report noted the Veteran's complaints of "Neck pain & stiffness, low back pain [and] stiffness"; the chiropractor diagnosed "Lumbosacral strain," "Cervical sprain," and "Paravertebral myositis." A June 4, 1987 letter from that same chiropractor stated "As of his last visit on July 2, 1986, [the Veteran] reported being nearly asymptomatic. He has not been seen in this office since that date." Later that month, a June 1987 VA examination noted the Veteran's complaint of "Lower back pain (stiffness)"; the VA examination listed a final diagnosis of "Residual injury to the cervical and lumbosacral spine." A May 1988 private medical record noted that "On his last paratrooper jump he apparently injured his back and he has had some off and on low backaches since that time." In a September 1988 Report of Medical History for Army Reserves, however, the Veteran denied current or past "Recurrent back pain." A September 1988 evaluated the Veteran's back as normal. A September 2003 private treatment letter noted that the Veteran injured his back in service and "has had progressive increasing back pain over the years." The letter also relayed the Veteran's report that "He has had chiropractic care over the years." A November 2003 private sports medicine record noted that the Veteran "has been in pain since [the parachuting incident] and had attended chiropractic therapy for years without relief." The Board finds the evidence regarding continuing back pain post service to be in equipoise. Accordingly, the Board resolves the reasonable doubt in the Veteran's favor and finds that he experienced back pain following service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The medical evidence against the claim includes a September 2012 VA examination that found it "less likely than not that the Veteran's current back condition was related to a one time pulled latissimus dorsi muscle" and instead associated his lumbar conditions with "age, weight, occupation as a machinist for 23 years and natural progression." The September 2012 VA examination also noted that "The Veteran's pulled muscle was of the thoracic/dorsal spine there was no lumbar involvement." A December 2017 VA examination found "it is less likely as not that the current back condition is related to remote strain but rather natural age progression." The Board notes that neither VA examination addressed the Veteran's back pain after service. The evidence in favor of the claim includes the October 2013 private chiropractor letter and January 2015 private independent chiropractic evaluation. The October 2013 letter determined that the Veteran's multilevel degenerative disc disease, spinal stenosis, and L4-5 spondylolisthesis were caused by his parachuting incident in 1986. Citing a 2003 back surgery, the letter noted that "Such degeneration is not normal in a man of 39 years of age (at time of surgery) and are consistent with significant lumbar trauma such as that which occurred [during the parachute incident]." The letter further reasoned that "Within reasonable medical certainty, [the Veteran's] current spinal status is causally related to" the parachuting incident because he "sustained a significant ligamentous sprain in 1986, has had chronic pain since that time, [and] has had to undergo copious medical interventions." The January 2015 private independent chiropractic evaluation made similar findings, determining that the Veteran's "current symptomatology is related to the parachute trauma of 1986. With no history of previous trauma and a post traumatic sequela of recurring and progressive pain and diability [sic] it appears that the original parachute landing was the causative factor." Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's multilevel degenerative disc disease, spinal stenosis, and L4-5 spondylolisthesis are related to the in-service parachuting incident. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for multilevel degenerative disc disease, spinal stenosis, and L4-5 spondylolisthesis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Remand is necessary to obtain an additional VA examination. First, a September 2012 VA examination noted two stressors (a Blackhawk crash and the Veteran's report of marching toward mines) but determined that the Veteran was not exposed to a traumatic event. This VA examination did not address an additional stressor, however, that the Veteran reported in a December 2011 VA Form 21-0781a stressor statement. In that stressor statement, the Veteran indicated that while training his unit came under friendly fire three times from a nearby .50 caliber range. A March 2018 letter from a VA psychologist who has been treating the Veteran since November 2010 stated that this friendly fire incident qualified as "exposure to death or serious injury." The Board finds the Veteran's lay statement sufficient to establish the occurrence of this stressor because it is consistent with the type of circumstance of his service. See 38 C.F.R. § 3.304(f)(3). Thus, an additional VA examination is necessary to determine whether the friendly fire incident was sufficient to support a PTSD diagnosis from the date of the Veteran's claim. Moreover, an additional VA medical opinion is necessary to address this decision's grant of service connection for the Veteran's lumbar spine disabilities. Specifically, the VA medical opinion must address whether the major depressive disorder diagnosed in the September 2012 VA examination was caused or aggravated by his service-connected lumbar spine disabilities. The matter is REMANDED for the following action: 1. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any PTSD prior to October 19, 2017. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to his in-service exposure to friendly fire during training. If any other acquired psychiatric disorders are diagnosed for the period prior to October 19, 2017, including major depressive disorder, the examiner must opine whether each diagnosed disorder is at least as likely as not related to in-service exposure to friendly fire during training. Furthermore, the examiner must opine whether any other acquired psychiatric disorder diagnosed prior to October 19, 2017, including major depressive disorder, is at least as likely as not proximately due to or aggravated beyond its natural progression by service-connected lumbar spine degenerative disc disease, spinal stenosis, and L4-5 spondylolisthesis. 2. Then, readjudicate the claim. If the benefit sought remains denied, issue a supplemental statement of the case and return the matter to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Ripplinger, 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.