Citation Nr: 0713937 Decision Date: 05/11/07 Archive Date: 05/25/07 DOCKET NO. 04-39 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a low back condition. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Smith, Associate Counsel INTRODUCTION The veteran served on active duty from April 1955 to July 1956 with subsequent service in the National Guard. The veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Atlanta, Georgia, that denied the benefit sought on appeal. FINDING OF FACT The veteran currently has a low back condition that has been shown to be related to service. CONCLUSION OF LAW The criteria for service connection for a low back condition have been met. 38 U.S.C.A. §§ 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§3.102, 3.159, 3.303, 3.304 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran seeks service connection for a low back condition. He contends he injured his back being ejected from an ejection seat trainer in the Air Force. To establish service connection, the record must contain (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. In other words, entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service. The elements of service connection have been met. The first element is met because the veteran has a current diagnosis of severe lumbar degenerative disc disease with severe stenosis and multi-level instability, most recently documented in a March 2004 report of E.B. Pendleton, M.D. The second element is also met, despite the fact that the veteran's service medical records do not document a back injury in service. At the February 2007 hearing the veteran testified that use of the ejection seat which caused his injury was a requirement of training, and although the powerful expulsion from the seat caused him great pain at the time, including the inability to sit for three days, he did not seek treatment because he wanted to pursue his career as a pilot and believed that a medical complaint would jeopardize his chances. In support of his claim that the ejection seat was used for training and caused his injuries are several buddy statements. W.S. E. submitted a letter describing the experience of using the ejection seat as "bone jarring" and stated that some of the cadets sustained back trauma, but few reported medical problems for the reasons described by the veteran. R. W. L. also submitted a letter about the use of the seat, and D. V. B. stated the ejection seat training was later terminated due to the excessive force of the ejections. The Board finds the veteran's testimony and these lay statements as persuasive and credible evidence which support the veteran's contention that he sustained a back injury in service from this ejection seat. The veteran also submitted various articles about the ejection seat, as well as a color photograph of the contraption, which lend further credence to the above lay evidence. Personnel records corroborate that R. W. L. and D. V. B. were USAF aviation cadets in class 56-S at Laughlin Air Force Base in Texas along with the veteran, and that the veteran later became a pilot. 38 C.F.R. § 3.303(d) states, "[s]ervice 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." (emphasis added). Taking this totality of the circumstances approach and resolving reasonable doubt in favor of the veteran, the sum of this evidence indicates the second element of service connection is met. The third element of service connection is also met because the March 2004 report of Dr. Pendleton links the veteran's in-service injury to his current condition. Based upon the history given to him, Dr. Pendleton found, "[i]n my opinion, this degenerative disc disease in his back is directly related to this severe trauma during the ejection seat training. Therefore, it is my opinion, in all degree of reasonable medical certainty, that his back condition is military connected because of his severe trauma to his back during these ejection seat training. This resulted in the severe instability and stenosis which resulted in my multi- level decompression and fusion." There are no nexus opinions to the contrary and as noted above, the veteran's report of what happened to him in service has been deemed credible. For all of these reasons, and since reasonable doubt must be construed in favor of the veteran, the Board finds the elements of service connection have been met and the veteran's claim is granted. Notice and Assistance A discussion addressing whether VA's duties to notify and assist the veteran have been complied with is not warranted. To the extent necessary, VA has fulfilled its duties to notify and to assist the veteran in the development of his claim. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). In light of the determinations reached in this case, no prejudice will result to the veteran by the Board's consideration of this appeal at this time. Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). ORDER Service connection for a low back condition is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs