Citation Nr: 18124090
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 14-25 182A
DATE:	August 7, 2018
ISSUES
1. Entitlement to service connection for a back disability.
2. Entitlement to service connection for peripheral neuropathy (PN) of the bilateral upper extremities.
3. Entitlement to service connection for PN of the bilateral lower extremities.
4. Entitlement to service connection for a bilateral hip disability.
5. Entitlement to service connection for a bilateral knee disability.
6. Entitlement to service connection for a right leg disability.
7. Entitlement to service connection for a bilateral foot condition, claimed as jungle rot.
ORDER
Entitlement to service connection for a back disability is granted.
Entitlement to service connection for PN of the bilateral lower extremities, as secondary to the back disability, is granted.
REMANDED
Entitlement to service connection for PN of the bilateral upper extremities is remanded.
Entitlement to service connection for a bilateral hip disability is remanded.
Entitlement to service connection for a bilateral knee disability is remanded.
Entitlement to service connection for a right leg disability is remanded.
Entitlement to service connection for a bilateral foot condition, claimed as jungle rot, is remanded.
FINDINGS OF FACT
1. The evidence is at least in equipoise as to whether the Veteran’s back disability is related to his active service.
2. The evidence is at least in equipoise as to whether the Veteran’s PN of the bilateral lower extremities is proximately due to or the result of his service-connected back disability.
CONCLUSIONS OF LAW
1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for a back disability have been met.  38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303(2017).
2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection PN of the bilateral lower extremities as secondary to the service-connected back disability have been met.  38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from February 1969 to May 1972.  He received many distinctions, to include a Purple Heart and the Combat Infantry Badge.
This case comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
The Veteran requested a Board hearing at a local VA office in his July 2014 formal appeal; however, he withdrew his request for a hearing in September 2015 correspondence.
This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.  Accordingly, any future consideration of this appellant’s case should take into consideration the existence of these electronic records. These records were reviewed in connection with the decision below.
The issues regarding service connection for a back disability and PN of the bilateral lower extremities are addressed below.  All other issues on appeal are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
Service Connection Claim
The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Given the favorable decision is a full grant of the issues addressed, further explaining how VA has fulfilled the duties to notify and assist is unnecessary. Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service.  See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017).
Additionally, service connection may also be granted on a secondary basis. Secondary service connection will be awarded when it is shown that the disability for which the claim is made is proximately due to or the result of a service-connected disease or injury or that a service-connected disease or injury has chronically worsened the disability for which service connection is sought. See 38 C.F.R. § 3.310 (a) (2015); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).
If the Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). Even where the combat presumption applies, a veteran must still show that a causal relationship exists between the present disability and the in-service injury or disease. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Every reasonable doubt must be resolved in the Veteran’s favor, and service connection of injuries or diseases linked to combat may be rebutted only by clear and convincing evidence. 38 U.S.C. § 1154 (b).
In order to establish service connection for the claimed disorder, there must be (1) competent 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) competent evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).
When positive and negative evidence approximately balance regarding the merits of an issue material to determining the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b).
VA and private treatment records show diagnoses of back disabilities, to include degenerative joint disease with wedging of the T-11 and T-12 vertebral bodies and degenerative disc disease at L4-L5; and PN of the bilateral lower extremities. As such, Hickson element (1) is met for both claims.
The Veteran contends that his back disability and PN of the bilateral lower extremities are related to his duties in service involving jumping out of helicopters from over six feet off the ground with full backpacks while in Vietnam.
The Veteran’s DD Form 214 shows that he was awarded, among other commendations, the Purple Heart, the Combat Infantry Badge, the Vietnam Service Medal, the Vietnam Campaign Medal, and the Air Medal. Service medical records reflect that he sustained a fragment wound to the left leg in September 1969. This evidence demonstrates that the Veteran participated in combat with the enemy. His stated injuries to his back from helicopter jumps are consistent with the circumstances, conditions, or hardships of such combat service. See 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). Thus, the evidence establishes the existence of an in-service injury. As such, the Board finds that Hickson element (2) is met for both claims.
As to the claim for service connection for a back disability, the Veteran submitted an April 2010 private treatment record from Dr. J. A. H. in which he noted complaints of low back pain since 1969 to 1970. The Veteran reported jumping out of helicopters in service with full backpack weight and experiencing back pain after doing this a few times with increasing pain over the years. Dr. J. A. H. stated that review of an MRI showed central disk protrusion at the L4-L5 level and L5-S1 mild central disk protrusion as well with evidence of an annular tear; there was also evidence of a chronic anterior wedge fracture of the T12. Dr. J. A. H. opined that all of this was probably secondary to the Veteran’s infantry helicopter duties and that it was more likely than not that this all could be stemmed to his Vietnam-era injuries.
In addition, the Veteran submitted a VA treatment record in March 2010 in which the examiner noted his reports of jumping out of helicopters hundreds of times in Vietnam with some back pain since then. The VA examiner stated that X-rays of the low back thoracic spine showed wedging of the thoracic vertebra bodies (mild compression fractures). The examiner agreed that it was more likely than not that these abnormalities were caused by jumping out of a helicopter with full field pack in Vietnam. The examiner stated that indeed the Veteran’s symptoms went back to his military days.
Conversely, the Veteran was afforded a VA examination in October 2010 in which the examiner stated that resolution of the etiological question regarding the mild degenerative joint disease with wedging of the T11 and T12 vertebral and its association to jumping out of helicopters in Vietnam during active duty could not be done without resorting to mere speculation. However, the examiner did opine that degenerative disc disease L4-L5 and L5-S1 were not caused by or a result of jumping out of helicopters in Vietnam. The examiner stated that service treatment records had no mention of lower back pain/spine pain, and the Veteran’s records were silent for this condition for more than 30-35 years until he was evaluated for other medical issues.
The Board notes that the VA examiner in the October 2010 did not address how an etiological opinion for the mild degenerative joint disease with wedging of the T11 and T12 vertebral could not be provided without resorting to speculation but a negative etiological opinion for the degenerative disc disease L4-L5 and L5-S1 could be provided. Moreover, the examiner relied in large part on the absence of documented treatment, in service and for years after service, to provide a negative etiological opinion. However, the Board notes that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).
Nevertheless, based upon the foregoing supportive evidence and resolving reasonable doubt in favor of the Veteran, and finding the VA opinion, on one side, and the VA and private examiner’s opinions, on the other side, in equipoise as to nexus, the Board finds that the Veteran’s back disability is related to active service and service connection is warranted.
As to the claim for PN of the bilateral lower extremities, the Veteran submitted a May 2010 private treatment record from Dr. E. J. D. in which he complained of numbness in both feet and recounted his in-service jumps from helicopters. Neurological examination showed absent sharp/dull sensations in the feet bilaterally.  Dr. E. J. D. opined that the Veteran had neuropathy which more than likely was coming from his back. Dr. E. J. D. stated that this was probably related to the multiple times he exited a helicopter during the service. Dr. E. J. D. also noted that the Veteran was seen by a neurologist who also attributed this neuropathy to his back.
Conversely, in an October 2010 VA examination, the examiner opined lower extremity PN was not caused by or a result of jumping out of helicopters in Vietnam or due to military service. The examiner stated that the lower extremity PN had onset in 2004, more than 30-32 years after discharge from military service and was thus not due to military service.
Here, the Board finds that the October 2010 VA examiner relied in large part on the absence of documented treatment to provide a negative etiological opinion. However, the Board notes that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford, 3 Vet. App. 87, 89.
Nevertheless, based upon the foregoing supportive evidence and resolving reasonable doubt in favor of the Veteran, and finding the private examiner’s opinion and VA opinion in equipoise as to nexus, the Board finds that the Veteran’s PN of the bilateral lower extremities is related to his service-connected back disability and service connection is warranted.
REASONS FOR REMAND
The Board finds that additional evidentiary development is required before the remaining issues on appeal are adjudicated.
The Veteran contends that claimed PN of the bilateral upper extremities, bilateral hip, right leg, and bilateral knee conditions were the result of the aforementioned helicopter jumps while in service. He also asserts that his bilateral foot condition, claimed as jungle rot, is the result of exposure to disease and difficult climate and agriculture conditions while in the jungles of Vietnam.
In the aforementioned June 2010 VA examination, the Veteran was also diagnosed with right knee strain; the examiner opined that the right knee strain was not caused by his knee problems during active duty. The examiner noted that the Veteran was working as an automobile dealer sales manager and service personnel for the last 30 years, and his work involved extensive standing and walking. The examiner stated that there was a 40-year period of gap between the Veteran’s active service and present complaints of his knees without any incurrent record or documentation regarding the bilateral knees. The Veteran was also afforded VA examinations in October 2010 in which the examiner diagnosed early degenerative joint disease of the left knee and right knee strain and opined that the conditions were not caused by or the result of knee problems noted during active duty.
The Board finds that clarification is required from the October 2010 VA examiner as the pertinent etiological question before the Board is whether the bilateral knee disability is related to service, specifically jumping from helicopters, and not knee problems noted in service. Moreover, the absence of documented treatment in service or thereafter is not fatal to a service connection claim. See Ledford, 3 Vet. App. 87, 89.
In a separate June 2010 VA examination, a VA examiner opined that the Veteran’s current tenia pedis was not caused by his plantar callus during his active duty as both could occur in the feet, but they did not share the same pathophysiology.
The Board finds that clarification is required from the June 2010 VA examiner as the pertinent etiological question before the Board is whether the bilateral foot condition is related to service, specifically the jungle conditions of Vietnam, and not plantar callus noted in service.
As noted above, the Veteran was afforded VA examinations in October 2010 in which the examiner diagnosed right and left hip strain and opined that the conditions were not caused by or a result of jumping out of helicopters in Vietnam during active duty. The examiner stated that there was no documentation of the claimed bilateral hip condition during military service until the present. In the October 2010 VA examination, the examiner also opined that upper extremity PN was not caused by or a result of jumping out of helicopters in Vietnam or due to military service. The examiner stated that the upper extremity PN had onset in 2004, more than 30-32 years after discharge from military service and was thus not due to military service.
The Board finds that clarification is required from the October 2010 VA examiner as the absence of documented treatment in service or thereafter is not fatal to a service connection claim. See Ledford, 3 Vet. App. 87, 89. Moreover, private treatment records show a diagnosis of bilateral hip arthritis in March 2010. As such, this and any upper extremity PN, bilateral hip, right leg, bilateral knee, and bilateral foot condition diagnosed during the pendency of this appeal should be addressed in the addendums ordered below. See McClain v. Nicholson, 21 Vet. App. 319 (2007).
The matters are REMANDED for the following action:
1. Obtain and associate with the claims file any outstanding VA treatment records; and, with appropriate authorization from the Veteran, any additional outstanding private treatment records identified by him as pertinent to his claims.
2. Then, provide access to the electronic claims file to the June 2010 VA examiner (bilateral foot condition) and October 2010 VA examiner (upper extremity PN, bilateral hip, right leg, bilateral knee), or appropriate substitute if required, to provide addendum opinions regarding the Veteran’s claims. The electronic claims file must be made available to and reviewed by the examiners.  An examination should be performed if deemed necessary by the examiner providing the requested opinions.
Based on review of the files, the examiner should state a medical opinion as to whether it is at least as likely as not (50 percent or better probability) that any upper extremity PN, bilateral hip, right leg, bilateral knee, and bilateral foot condition diagnosed during the pendency of this appeal had their onset in or are otherwise etiologically related to the Veteran’s period of active duty service; to include jumping from helicopters (upper extremity PN, bilateral hip, right leg, bilateral knee) and jungle conditions in Vietnam (bilateral foot condition). 
In rendering the above opinion, the examiner is advised that the mere absence of in-service evidence of a disability during service is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). 
3. Upon completion of the addendums ordered above, review the opinions to ensure that they address the questions presented.  Any inadequacies should be addressed prior to recertification to the Board.
4. After completing the requested actions, and any additional notification and/or development deemed warranted, the AOJ should readjudicate the claims on appeal.  If any benefit sought on appeal remains denied, the AOJ must furnish the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. 

 
MICHAEL A. PAPPAS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R.M.K., Counsel 

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