Citation Nr: 0006201 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 98-08 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Gallagher, Counsel INTRODUCTION The veteran had active service from December 1966 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The veteran appeared at a personal hearing before a Hearing Officer at the RO in January 1998. FINDINGS OF FACT 1. All relevant evidence necessary to an equitable disposition of this appeal has been obtained by the RO. 2. The veteran sustained an acute and transitory low back strain during his active military service. 3. A VA physician's statement to the effect that the veteran's current degenerative disk disease and herniated nucleus pulposus is related to his inservice injury appears to have been based on the oral history provided by the veteran, and is not supported by the available medical records. 4. A VA examiner has opined that there is no causal relationship between the veteran's in-service back trauma and his current low back disability. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by the veteran's active service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the veteran's claim is well- grounded within the meaning of 38 U.S.C.A. § 5107 and that sufficient evidence is contained in the claims file to render an equitable decision on the issue on appeal. Service connection may be granted for a disability which is shown to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303. When a disease was not initially manifested during service, the veteran may establish the "required nexus" for service connection by evidence demonstrating a medical relationship between the current disability and the service. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). In that regard, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999)(hereinafter, "the Court") has determined that establishing "service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). A VA Social Survey conducted in September 1973 noted that, prior to his entry into military service, the veteran had been in good physical condition and had been a High School wrestler. The veteran's service medical records show that no complaints or findings of any back problem were made during his service entrance examination. In February 1970, he presented with complaints of pain in his lower spine after having done some heavy lifting. The diagnosis was acute lumbo-sacral sprain. Darvon and Valium were prescribed. The following day, the veteran complained that his low back pain persisted, although it had decreased. He also complained of some radiation of pain down his left leg. No spinal tenderness was observed. It was noted that straight leg raise testing was positive on the left side at 80 degrees. Lumbo-sacral X-ray films were ordered, however the results of those films do not appear to be contained in the claims file. The report of an April 1970 service separation examination shows that the veteran did not list any back problems on the history portion of the examination report. Further, no findings of any back problem were made by the examiner. In August 1970, the veteran complained of having sustained an injury to his back and knee in a fall the day before. It was noted that the knee was swollen and that he had difficulty walking. The impression was sprain [presumably knee sprain], and an Ace wrap was prescribed. The report of the veteran's January 1971 service separation examination contains no complaints or findings of any back problem. The report of the veteran's VA hospitalizations from May to July 1972, and in December 1992, for depressive neurosis noted that his physical examinations were essentially within normal limits. The report of the veteran's VA hospitalization in March and April 1973 noted that his physical examination results were unremarkable. The claims file contains reports of the veteran's VA outpatient treatment during the period from August 1972 through January 1979. In January 1978, the veteran reported he had gotten a steady job working with concrete. In January 1979, it was noted that he was temporarily out of work due to a car accident. In November 1975, it was noted that the veteran was working as a welder, making snowmobile trailers. In May 1977, the veteran reported he had worked as a forester and then gotten another job as a welder. Those records contain no complaints or findings of any low back problems. The report of the veteran's VA hospitalization in January and February 1978 noted that his physical examination findings were within normal limits, except for lethargy and tachycardia from an overdose of Thorazine. The report of the veteran's January 1980 treatment at the St. Joseph Hospital in Marshfield, Wisconsin noted that he fractured his right tibia and fibula in a fall while ice skating. It also noted that he had fractured his humerus in a motor vehicle accident one year earlier. The report of the veteran's May 1981 VA hospitalization for alcohol abuse noted that his physical examination was within normal limits. In June 1981, the RO denied the veteran's first claim for service connection for a back condition, stating that his in service low back injury had been acute and transitory and resolved without apparent residuals. The veteran did not appeal this decision, and it became final. The veteran was hospitalized at a VA medical facility from June through August 1995 with psychiatric complaints. He also complained of chronic back pain and reported that he frequently awoke at night due to back pain. It was noted that there was mild tenderness of the lumbar paraspinal muscles. The diagnoses included degenerative joint disease. The veteran was afforded a VA examination of his spine in November 1995. X-ray studies of the lumbar spine showed stable degenerative disk disease at the L4/5 and L5/S1 vertebrae. A magnetic resonance imaging (MRI) study showed evidence of L4/5, L5/S1 herniated nucleus bulge with encroachment of the L5/S1 nerve roots on the left. The claims file contains reports of the veteran's VA outpatient treatment during the period from July 1994 through February 1997. In June 1996, the veteran reported that he had had back pain for years but had recently aggravated it while picking up a box. He reported he heard a "pop" and began to experience intense pain on the left side of the low back, radiating down to the back of the left knee, with numbness from the left knee down to the left foot. It was noted that the veteran stated he had a history of multiple low back injuries in the past 20 years, and had usually been treated by a chiropractor. It was further noted that the veteran had work experience which included several years as a welder-fabricator making metal railings and steps, and as a shakerman at an iron foundry. In February 1997, the veteran filed a request to reopen his claim for service connection for a low back disorder, and submitted a June 1996 medical summary report from a VA physician. That report was apparently prepared in connection with the veteran's claim for Social Security Administration benefits. In the June 1996 medical summary, the VA physician noted that the veteran reported having injured his back in February 1970 in service. He also noted that the veteran reported having had a recurrence of back pain in 1972, which was treated by a chiropractor. The veteran stated that he had continued to receive chiropractic treatment for the next six years, and that he had been doing heavy lifting on his job during that time. The veteran reported that he discontinued chiropractic treatment as of 1978 since he was having only minimal back problems at that time. His back reportedly did relatively well for the next ten years, until the veteran suffered another on the job back injury in 1987. The physician concluded by stating that the veteran had a pattern of low back pain symptoms which had waxed and waned over time since his original injury in 1970. The veteran was afforded a VA examination in April 1997. The diagnosis was degenerative disk disease of the L4/5 and L5/S1 vertebrae, with herniated nucleus pulposus at L4/5 and L5/S1 with recurrent radiculopathy. The examiner opined that the veteran's February 1970 back injury had been acute and self- limiting. The examiner further opined that based on the veteran's history, a review of the claims file and medical records, and the VA examination, it was more likely than not that the veteran's current back condition did not begin with, and was not causally related to, his episode of back pain in military service. The veteran appeared at a personal hearing before a Hearing Officer at the RO in January 1998. He testified that while in military service he fell while loading concrete and hit the left side of his lower back on the corner of a hard wooden pallet. He reported that he had been treated by a chiropractor for chronic low back pain from June 1971 through August or September 1976, but that the chiropractor had died and his records were no longer available. He also reported that he received workers' compensation for his 1987 back injury, but that those records were also unavailable. In support of his claim, the veteran submitted a February 1998 letter from Robin G. Frank, D.C., of Abbotsford, Wisconsin. Dr. Frank stated he had last treated the veteran in 1987 for an L5/S1 disk lifting injury, from which he totally recovered. Dr. Frank further stated that at the time he treated the veteran, he had degeneration in the L4/L5 disk with mild spondylosis, which showed that there had been previous mechanical trauma to L4/L5 some years before. He opined that it was possible the 1970 back injury played a role in the L4/L5 degeneration. He stated, however, that he could not comment on whether the L4/L5 degeneration plays any role in any present back disability. Upon consideration of all the evidence of record, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for a low back disability. Although the VA physician who prepared the June 1996 medical summary for the Social Security Administration indicated, in effect, that the veteran's current back disability was causally related to his February 1970 in service injury, it appears that the physician was relying on the veteran's oral history of that injury and its aftermath, rather than on a review of the service and post- service medical records. The Board is not required to accept doctors' opinions that are based upon the veteran's recitation of medical history. Godfrey v. Brown, 8 Vet. App. 113, 121 (1995); see Owens v. Brown, 7 Vet. App. 429 (1995) (Board not bound to accept physicians' opinions based on claimant's recitation of events); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (rejecting medical opinion as "immaterial" where there was no indication that the physician reviewed claimant's service medical records or any other relevant documents which would have enabled him to form an opinion on service connection on an independent basis); Swann v. Brown, 5 Vet. App. 229 (1993) (holding that the BVA was not required to accept the medical opinions of two doctors who rendered diagnoses of post- traumatic stress disorder almost 20 years after claimant's separation from service and who relied on history as related by the appellant as the basis for those diagnoses). Therefore, the Board accords little weight to the June 1996 medical summary. Additionally, the Board accords little weight to Dr. Frank's February 1998 opinion that the veteran's 1970 injury may possibly have played a role in the L4/5 vertebral degenerative changes. In addition to being apparently based on the veteran's oral history of the circumstances surrounding his 1970 back injury, Dr. Frank's opinion was couched in speculative terms, and thus does not provide an adequate basis to find that there is a causal nexus between the veteran's current low back disability and his 1970 injury. See generally Bloom v. West, 12 Vet.App. 185 (1999); Bostain v. West, 11 Vet.App. 124 (1998). The Board concurs with the opinion of the examiner who performed the veteran's April 1997 VA examination and concluded that his current back disability is not causally related to his acute and transitory episode of back pain in service. That examiner's opinion was based on a review of the service and post-service medical records as well as a physical examination of the veteran, and thus the Board accords it more weight. While the veteran may well believe that his low back disability is causally related to his active service, he is not a medical professional. As such, he is not considered legally competent to render opinions concerning questions of medical diagnosis or causation. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Therefore, the Board finds that service connection for a low back disability is not warranted. The evidence with regard to this matter is not so evenly balanced as to raise doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER Service connection for a low back disability is denied. NADINE W. BENJAMIN Acting Member, Board of Veterans' Appeals