Citation Nr: 1749123	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  12-15 635	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Honolulu, Hawaii


THE ISSUE

Entitlement to service connection for a lower back disability.


REPRESENTATION

Appellant represented by:	Hawaii Office of Veterans Services


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Michael Sanford, Counsel


INTRODUCTION

The Veteran had active duty service from February 1967 to January 1972.

This appeal to the Board of Veterans' Appeals (Board) arose from an April 2011 rating decision in which the RO denied the Veteran's claim for service connection for lower back condition.  In May 2011, the Veteran filed a notice of disagreement (NOD).  In May 2012, the RO issued a statement of the case (SOC), and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2012.  In September 2012, following receipt of additional evidence, the RO issued a supplemental SOC (SSOC) reflecting the continued denial of the claim.

In June 2013, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record.

In August 2016 and April 2017, the Board remanded the claim for service connection for low back disability to the agency of original jurisdiction (AOJ), for further development.  After accomplishing further action, the AOJ continued to deny the claim (as last reflected, most recently, in a July 2017 SSOC) and returned this matter to the Board for further appellate consideration.

While the Veteran previously had a paper claims file, this appeal is now fully being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems.  All records have been reviewed.


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished.

2.  The Veteran has a current diagnosis of  thoracolumbar degenerative disease, and the collective lay and medical evidence indicates that there is as likely a medical relationship between the diagnosed lower back condition and in-service service..


CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a lower back disability, diagnosed as lumbosacral degenerative disease, are met.  38 U.S.C.A. §§ 1110, 1112, 1113, 1117, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION


At the outset, the Board notes that, in connection with the current claim, VA has satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000.  See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016).  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of this matter, given the fully favorable nature of the Board's decision.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2016).  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).

Generally, establishing direct service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).  The determination as to whether the elements are met is based on an analysis of all pertinent evidence of record and the evaluation of its competency, credibility, and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016).

Alternatively, for chronic diseases, as defined by regulation, shown in service, the second and third elements of service connection may be established by demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that 38 C.F.R. § 3.303(b) only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a)).

Chronicity is established if the appellant can demonstrate (1) the existence of a chronic disease in service and (2) current or present manifestations of the same disease.  Savage v. Gober, 10 Vet. App. 488, 495-97 (1997).  Continuity of symptomatology may be established if it is demonstrated that (1) a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Id.

In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant 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.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

Considering the pertinent evidence in light of the governing legal authority, and resolving all reasonable doubt on certain elements of the claim in the Veteran's favor, the Board finds that service connection for thoracolumbar degenerative disease, is warranted.

First addressing the current disability requirement, the report of the June 2016 VA examination notes a diagnosis of thoracolumbar degenerative disease without radiculopathy.

Second, addressing the in-service injury or disease requirement, the Board observes that the Veteran's service treatment records (STRs) do not note any complaints of a back injury during service.  A January 1972 report of medical examination noted no spine abnormalities.  Further, reports of medical history do not note any complaints of low back problems.   However, there is evidence indicating that the Veteran likely suffered from associated symptoms during service.

During the s June 2013 Board hearing,  the Veteran testified that in April 1970, he was forced to eject from his aircraft after a catapult malfunctioned and the aircraft was unable to reach liftoff speed.  See Board Hearing Transcript (Tr.) at 3-4.  Service personnel records confirm that the Veteran was ejected while attempting to take-off.  See Mishap Record.  Additionally, in a June 2016 submission, the Veteran stated that he never complained of back pain as such could cause him be grounded as a pilot.  He even stated that complaining on his separation examination could jeopardize his post-service career as a civilian pilot.  The Veteran submitted a treatise article, Aircraft Type and Diagnosed Back Disorders in U.S. Navy Pilots and Aircrew, which stated "[b]ecause reporting back problems or injury to a health care professional may result in being grounded, pilots may be very reluctant to disclose their problems."  Finally, the Veteran also submitted articles of excerpts referring to "Martin Baker back," which refers the Martin Baker seat from which the Veteran was ejected during service.  See March 2015 Submission of Veteran.  The excerpt notes that back injuries from ejections with the Martin Baker seat were common.
 
The Board notes that the Veteran is competent to report on matters observed or within his personal knowledge, to include the occurrence of injury or symptoms experienced or observed.  See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  See also Charles v. Principi, 16 Vet. App. 370 (2002); Layno v. Brown, 6 Vet. App. 465, 470 (1994).

Here, the Board finds that the Veteran's complaints of a back injury in service are credible.  The Veteran competently asserted that he was ejected from his seat from an aircraft during service, which is confirmed by his service personnel records.  He also credibly explained that noting any sort of back pain could cause him to be grounded both during service and after service, when he worked as a commercial pilot.  Indeed, the Veteran even provided a treatise explaining that pilots are hesitant to report any injuries as to avoid being grounded due to those injuries.  The Veteran also credibly explained that he used a Martin Baker seat when he was ejected during service and provided an article detailing the commonness of back injuries during ejections with a Martin Baker seat.

Thus, the remaining question is whether the Veteran's current thoracolumbar degenerative disease is medical related to service, to include injury therein.

On VA examination in May 2012, the examiner concluded that the Veteran's back condition was less likely as not incurred in or caused by service, theorizing that his back problems were "most likely due to 40 years of wear-and-tear that occurs naturally with age and physical activity."  The examiner explained that there was no evidence of a lower back condition during service, that the evidence of an airplane accident was not evidence of a "lower back condition/injury," and that the "[history] of airplane ejection has no diagnostic significance."  The examiner also stated that the Veteran's lower back condition "would need to be documented in his service records.  Without the documentation of a lower back condition during military service, the [history] of airplane ejection only documents an event and not a lower back condition/injury."

As discussed in the December 2012 Board remand, the examiner based his opinion, in large part, on the lack of relevant service treatment records or other documentation of a back condition in service, but did not address relevance or import of the Veteran's statements concerning his ongoing back problems since the ejection accident in service; his statements explaining that he did not report ongoing back issues in service to avoid jeopardizing his ability to continue flying (namely, that the Veteran avoided complaining of medical problems during flight physicals to avoid being grounded, which would impede his career as a military pilot); or the nature and significance of the described ejection accident and possible associated injury to the Veteran's back.  See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner relied solely on lack of evidence in service medical records to provide negative opinion).  This led the Board to conclude that the May 2012 opinion was inadequate for the purpose of determining service connection.

On VA examination in June 2016, the examiner opined that it was less likely than not that the Veteran's low back disability was related to service.  As rationale, the examiner stated there is no evidence of a low back disability during service.  The examiner also stated that while the Veteran did not want to complain about back pain, he could have done so on his exit examination.  Further, the examiner explained that the Veteran did not complain at all during his career as a civilian pilot.  The examiner explained "[t]his either indicated that he did not have a back condition as he is now currently claiming (44yrs after service) or he did not want to take responsibility for his own medical care. . .[a]nd even though he stated that he did parachute from a plane this does not prove causality in any way."

As discussed in the April 2017 remand, the Board has found this opinion to be inadequate, as well.   First, the Veteran has explained why he never made any complaints of low back pain.  He stated that complaining of back pain could cause him to be grounded as a pilot.  Second, the examiner offered conflicting rationales.  The examiner stated that the Veteran either did not have the back problems as described or did not want to take responsibility for his own medical care.  Finally, the Veteran also submitted articles of excerpts referring to "Martin Baker back," as discussed above.  The examiner did not comment on the excerpts provided by the Veteran.  

Pursuant to the April 2017 remand, an addendum opinion was obtained  in May 2017.  The examiner stated that after a review of the claims file, the examiner's opinion did not change.  The examiner also noted "[t]her is nothing further that this examiner can review of add that would change my medical opinion."  

The Board finds this opinion is, likewise,inadequate.  The examiner did not clarify her conflicting rationales that the Veteran did not have back problems as described or did not want to take responsibly for his own care.  Further, the examiner did not discuss the Veteran's statements that he avoided complaining about low back problems at separation in order to not be grounded as a civilian pilot.  For the reasons discussed above, and in the April 2017 remand, the Board finds the May 2017 addendum opinion is not, not dispositive of the medical etiology question.
In support of his claim, the Veteran submitted an opinion from Dr. K.J.M., M.D., dated in August 2013.  The physician explained that the Veteran has a history of low back trauma after being ejected from an aircraft during service.  Dr. K.J.M. also explained that the condition has worsened and is now diagnosed as lumbar arthritis.  Further, he stated that the present disability is a predictable and probably inevitable consequence of the in-service ejection, as trauma-associated arthritis typically causes cartilage destruction and osteoarthritis.  Dr. K.J.M. further noted that the Veteran's arthritis is the type that is slow acting and often takes many years or decades to become problematic.  He further stated that the connection between the disability and ejection is further supported by the fact that the present arthritis is only located in the lower back, where he was injured during service.

There is also a private opinion from Dr. J.H.S., M.D., dated in March 2014.  In that opinion, Dr. J.H.S. stated that the Veteran experienced low back trauma during service and that the Veteran has continued to experience low back pain and has been diagnosed with lower lumbar osteoarthritis.

As noted in the April 2017 remand, , Dr. J.H.S. did s not state that, or explain how,  the low back trauma experienced in service led to the development of osteoarthritis.  Rather, Dr. J.H.S. merely notes trauma and a current diagnosis of osteoarthritis, but does not offer a nexus between the two.

Given the noted deficiency,  Dr. J.H.S. provided an addendum opinion in May 2017.  In that opinion, the physician explained that there is a connection between the Veteran's in-service ejection and his present low back disability.  He explained that significant low back trauma is a leading and precipitator cause ending with long term back problems, including the trauma-associated arthritis that the Veteran currently displays.

The Board now proceeds to assess  the probative weight of the multiple competing medical opinions.  

It is the responsibility of the Board to assess the credibility and weight to be given the evidence.  See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)).  The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993).

When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  However, the Board may not reject medical opinions based on its own medical judgment.  Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991).  In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).

For reasons cited above, the  Board finds that the  VA examiners' opinions are of minimally probative value.    Most significantly, the VA examiners relied heavily on the fact that the Veteran did not complain of any low back problems during service.  However, as discussed above, the Veteran has credibly explained that he purposefully did not complain of such to avoid being grounded both during and following service, when he worked as a commercial pilot.  The Board has made several efforts to have the VA physicians  consider and discuss the Veteran's explanation ,to no avail.  In any event, the heavy reliance on the lack of the documentation of a low back injury in the Veteran's STRs renders those opinions minimally probative.  See Dalton, supra.  Thus, while competent evidence, the Board finds the VA examiner's opinions are of minimally probative value, given the inadequacies discussed above.

By contrast, the Board finds that the opinions of Drs. K.J.M. and J.H.S. are entitled to greater probative weight.  In particular, Drs. K.J.M. and J.H.S. offered opinions relating the Veteran's current low back disability to his in-service ejection.  Both physicians offered explanations as to why the sort of trauma the Veteran experienced during service has now developed into arthritis.  The Board finds Dr. K.J.M.'s explanation particularly persuasive.  He noted that the in-service trauma experienced by the Veteran can take years or decades to become problematic as arthritis, which is slow acting.  Further, he noted that the Veteran does not have any type of arthritis elsewhere, but does have arthritis in his low back, indicating some linkage between the present disability and service.  Given this, the Board finds that the private opinions-which are in support of the claim-are probative for determining the issue of service connection.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").

Here, the Board finds that the collective lay and medical opinion and other evidence of record weighing both for and against the claim, although not unequivocal, indicates that there is as likely as medical relationship between the diagnosed lower back condition and in-service service..  As such, the totality of the evidence is in at a state of, at least, relative equipoise, on the medical etiology question.  Under these circumstances, the benefit of the doubt in resolving the issue shall be given to the claimant.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. 

Given the totality of the evidence in this case, to include the generally credible lay assertions and the competent medical opinion and other evidence discussed above, and with resolution of all reasonable doubt on certain elements of the claim in the Veteran's favor, the Board finds that service connection for thoracolumbar degenerative disease is warranted.


ORDER

Service connection for thoracolumbar degenerative disease is granted.




____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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