Citation Nr: 22010469 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 18-30 284 DATE: February 23, 2022 ORDER Service connection for a cervical spine disability is granted. Service connection for a thoracolumbar spine disability is granted. FINDINGS OF FACT 1. The evidence is at least in approximate balance as to whether the Veteran's cervical spine disability is etiologically related to his active service. 2. The evidence is at least in approximate balance as to whether the Veteran's thoracolumbar spine disability is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a thoracolumbar spine disability have been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introduction The Veteran served on active duty in the United States Army from April 1970 to December 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In addition, arthritis is considered a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, including arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). For arthritis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (2013). Continuity of symptomatology requires the chronic disease to have manifested in service. 38 C.F.R. § 3.303 b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). "[I]f the positive and negative evidence is in approximate balance ... the claimant receives the benefit of the doubt." Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Background and Analysis In this case, the record shows the Veteran has been diagnosed with cervical spine and thoracolumbar spine arthritis. See December 8, 2017 VA examination reports. The Veteran's official military personnel file (OMPF) shows he served in the Army as an Armor Unit Supply Specialist and received the Parachute Badge. At his September 2021 hearing, the Veteran asserted that on his sixth parachute jump, there were high winds and his legs became tangled in his parachute's "risers." This led to a hard landing on his shoulder and neck. Upon review, the Veteran's service treatment records (STRs) do not contain any complaints of neck or back pain. The Veteran explained that this was because in the presence of sergeants and other paratroopers, he would have been chastised for going to sick call. Instead, the Veteran explained, he treated his intermittent neck and back pain with over-the-counter medication for a period of approximately 20 years, from service until 1990, when he sought treatment from a private chiropractor. In a July 2016 letter, G.R., a Doctor of Chiropractic Medicine, authored a letter addressing the Veteran's conditions and symptoms. G.R. asserted that he had treated the Veteran since 2005 for thoracic pain, and noted that the Veteran had a degenerative condition in his spine from C7-T5. G.R. stated that it was his opinion that the Veteran's degenerative condition was caused by his in-service parachute jumps between 1970 and 1971. In support of his opinion, G.R. stated that at the time of his jumps, the Veteran weighed only 98 pounds, and was required to carry a 60-pound backpack. G.R. explained that the additional weight would have caused compaction of the vertebrae and led to the Veteran's current condition over time. The Board observes that the Veteran was noted to weigh 105 pounds prior to entry. See May 1969 Induction Examination. The Veteran was afforded a VA examination in December 2017. The examiner confirmed diagnoses of cervical spine and thoracic spine degenerative joint disease, as well as myofascial pain syndrome. Ultimately, the examiner opined that these conditions were unrelated to the Veteran's service. In support of his opinion, the examiner noted he had reviewed the Veteran's STRs, post-service treatment records, and July 2016 letter from G.R. He noted that the records were silent for any spine condition during service, and that the earliest documented treatment was in 2005, more than 30 years after discharge. After review of the foregoing, the Board observes that the Veteran has consistently asserted that he has experienced cervical spine and thoracolumbar spine pain that began during service and has been present ever since. He has maintained that the pain gradually became worse until he was forced to seek treatment in the 1990s. He has further explained that the reason he did not seek treatment during service was due to stigma and judgment by fellow servicemembers. The Board finds the Veteran's reported history to be credible and probative, as it has been consistently reported in the Veteran's statements to VA and medical providers. The Board acknowledges that the December 2017 VA medical opinion weighs against the Veteran's claim. However, the Board observes that the examination was conducted prior to the Veteran's September 2021 hearing, and so the examiner did not have the opportunity to consider or address the Veteran's description of his in-service injury, his account of continuous symptomatology since service, or his explanation for not seeking treatment during service. For this reason, while the Board assigns some weight to the VA opinion, it finds the opinion to be of limited probative value. On the other hand, the Board notes that the July 2016 letter by G.S. was provided by a medical professional who had treated the Veteran's conditions for more than 10 years, and is supported by a reasoned medical explanation. For these reasons, the Board finds the July 2016 opinion by G.S. is entitled to significant probative value. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek an additional medical opinion to reconcile the conflicting evidence. In addition, review of the Veteran's hearing testimony indicates that chiropractor records dated as early as 1990 may be missing from the record. However, under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Upon careful consideration of the foregoing, and of the entire record, the Board finds that to the extent there is evidence of record which weighs against the Veteran's claim, the entirety of the evidence is at least in approximate balance as to whether the Veteran's cervical spine and thoracolumbar spine disabilities are chronic conditions which first manifested in service and have presented continuous symptoms since. (Continued on the next page) Accordingly, service connection is warranted for the Veteran's cervical spine disability and thoracolumbar spine disability. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hampton, 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.