BVA9504375 DOCKET NO. 90-45 949 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for residuals of low back injuries. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Ehrman, Associate Counsel INTRODUCTION The veteran had honorable active service from April 1963 to July 1974, with multiple periods of active duty for training, including a period from June 12, 1985 to June 28, 1985. The appeal comes before the Board of Veterans' Appeals (the Board) from an August 1989 rating decision of the Cleveland, Ohio, Regional Office (RO). That determination denied the claim for entitlement to service connection for residuals of low back injuries. In July 1991, the Board remanded the appeal to the RO for additional development of the record. The requested development was completed, and by determination of April 1993, the Board again remanded the appeal for additional development of the record. This additionally requested development has been accomplished and the appeal is ripe for appellate consideration. The Board is in receipt of additionally submitted evidence from the appellant's spouse, including a January 1994 statement of a VA vocational rehabilitation counseling officer. We do not find that this evidence constitutes "pertinent evidence" under 38 C.F.R. § 20.1304(c), requiring agency of original jurisdiction adjudication in conjunction with this claim. To the extent that the January 1995 statement of the appellant's spouse constitutes a claim for entitlement to a total rating for individual unemployability due to service-connected disability, the Board is of the opinion that it is not inextricably intertwined with the issue on appeal. Accordingly, that issue is referred to the RO for additional development. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred in denying the claim for entitlement to service connection for residuals of low back injuries. He contends that he injured his back on 2 occasions in June 1985, during a period of active duty for training. Since that time, the veteran states that he has experienced low back pain, discomfort, and limitation of activity as a residual of those injuries. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence of record supports the claim for entitlement to service connection for residuals of low back injuries. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. Residuals of low back injuries, incurred while on active duty for training in June 1985, are shown. CONCLUSION OF LAW Residuals of low back injuries were incurred in service. 38 U.S.C.A. §§ 101(24), 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.6, 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has found that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991); that is, he has presented a claim that is plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board is also satisfied that all relevant facts have been properly developed. Neither the appellant, nor his repre-sentative contends that records not already associated with his claims file exist. Accordingly, the Board is satisfied that all relevant facts have been properly developed to their full extent and that the Department of Veterans Affairs (VA) has met its duty to assist, as mandated by 38 U.S.C.A. § 5107 (West 1991). Service connection may be established for disability resulting from a personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991). Additionally, service connection may be granted for disability resulting from an injury incurred or aggravated in the line of duty while performing active duty for training. 38 U.S.C.A. §§ 101(24), 1110, 1131 (West 1991); 38 C.F.R. § 3.6 (1993). Regulations also provide that service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (1993). For the showing of a chronic disease in service there is required 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 or a diagnosis including the word "chronic." When the disease entity is established, there is no requirement for an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnoses of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (1993). Congenital or developmental defects are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c) (1993). While a December 1991 VA X-ray report indicates "deformity of the lumbar vertebral bodies which [is] probably...congenital in nature," the remaining evidence of record indicates current residual disability as a result of multiple low back injuries sustained in June 1985, during active duty for training. Service department records, include a DA Form 2173, Statement of Medical Examination and Duty Status, dated in June 1985, which indicates that the veteran had active duty for training from June 12, 1985 to June 30, 1985. That record indicates that the veteran initially injured his back while lifting a heavy object. He was treated at the dispensary and released on light duty assignment. In addition to the above initial low back injury of June 12, 1985, service treatment records indicate that later in June 1985, while still on active duty for training, the veteran "slipped off a tractor." The veteran was tender to palpation around the pelvic region on the right side. The assessment was strained back muscle. In July 1985, the veteran complained of "persistent back pain." A physical examination at that time revealed spasms with tenderness on palpation of the lumbar area. Straight leg raising was 90 degrees on the left, and 75 degrees to the right, with deep tendon reflexes of 2 plus, motor of 5 plus. X-rays showed probable 20 percent lateral compression fracture, left side at L2, with possible fracture of the facet T12, left, sacralization at L5, and a narrow disc at L3-4. In August 1985 a possible fracture of the spine was again noted, with continued complaints of low back pain since the June 1985 injuries. At that time, the veteran's low back pain, increased with walking, and occasionally radiated up the lower thoracic spine, with no radiating pain in the legs. Occasional numbness was noted in the lateral thigh and right leg. Significantly, no prior history of back disability was noted. In addition to the above findings, physical examination of August 1985 revealed a mild paravertebral spasm, tender lumbosacral spine, with decreased sensory testing of 1 plus over the entire right leg. Although straight leg raising was negative at that time, a bone scan indicated low back pain secondary to degenerative joint disease. No other abnormalities were noted, and light duty was again continued. In October 1985 the veteran reported continued low back pain, and the impression was low back pain secondary to muscle spasm and degenerative joint disease. Minimal tenderness was noted in November 1985, and the veteran was considered neurologically intact at that time. Occasional back pain was again noted in January 1986, and in July 1986, over 1 year after the initial injuries, the veteran was returned to permanent profile with no restrictions. Private medical records initially received several years ago at the RO, indicate that in January 1987 the veteran reported continued low back pain. Private treatment reports and medical statements of February, August, and September 1989, and May 1991, indicate that the veteran was able to work for several years after the June 1985 injuries, but with continued complaints of low back pain. The February 1989 medical statement of J. A. O'Neill, M.D. indicates that the veteran's low back pain was later exacerbated by a "twisting" back injury in February 1989. At that time, X-rays revealed "considerable arthritis of [the] lumbar spine...[with] an acute lumbar strain superimposed upon this." Upon VA examination in May 1993, the examiner diagnosed "status post injury lower back (June 1985)," moderate lumbar scoliosis and marked osteoarthritis with chronic lower back pain, and old wedge deformity of the L2 and L4 vertebral bodies, "probably post-traumatic." The May 1993 VA X-rays of the thoracic spine show no current residuals at T12, although some minimal narrowing at the T10-11 level was associated with ventral spur formation. The examiner cautioned that some injuries of the vertebral bodies in the ventral and/or dorsal elements may demonstrate little or no deformity when well-healed post-traumatically. When all the evidence is assembled, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Service medical records indicate low back injuries sustained in 2 separate June 1985 incidents while on active duty for training. Subsequent treatment records show complaints of recurrent pain as a result of those injuries, with the assignment of limited duty for over one year. Thereafter, the veteran was able to work, but he continued to report some occasional low back pain, which was compounded by an additional back injury in February 1989. Upon VA medical examination in May 1993, which included a review of the several prior diagnostic reports regarding the veteran's back, some current residuals are identified and associated with the veteran's June 1985 low back injuries. With consideration of the above evidence, the veteran's contentions, and service, VA, and private treatment records, residuals of low back injuries sustained during active duty for training are currently demonstrated. As such, the Board finds that the evidence of record supports the claim. ORDER Service connection for residuals of low back injuries, is granted. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.