BVA9503028 DOCKET NO. 92-20 760 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUE Entitlement to service connection for residuals of a back injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Paul J. Somelofske, Associate Counsel INTRODUCTION The veteran served on active duty from October 1958 to February 1962. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 1992 rating decision of the Department of Veterans Affairs (VA), San Francisco, California, Regional Office (RO), that denied service connection for residuals of a back injury. In October 1992, the veteran testified at a hearing before a member of the Board, sitting at San Francisco, California. This case was previously before the Board and was remanded to the RO in March 1993 for further development. An August 1994 rating decision, pursuant to the March 1993 remand, continued the denial of service connection for residuals of a back injury. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that the RO committed error by denying service connection for residuals of a back injury. The veteran asserts that he originally injured his back during a parachute jump while in airborne training. He maintains that he did not immediately report to sick call, but sought treatment shortly thereafter. At that time, he states, X- rays were taken and pain pills and muscle relaxers were prescribed. Thereafter, he asserts he sought treatment for his back when he injured it lifting a garage door. Subsequently, he maintains that he has had numerous periods of disability due to his back, but has learned to live with it. He states that he now has periods of pain in his back of up to a month in duration and that the pain shoots down his leg. A request is made that the Board consider all pertinent regulatory criteria in its appellate review. 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 supports the veteran's claim for service connection for residuals of a back injury. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Lumbosacral strain, diagnosed in service in July 1960, has been shown by convincing evidence to have persisted and resulted in chronic low back strain. CONCLUSION OF LAW Chronic low back strain was incurred during active peacetime service. 38 U.S.C.A. §§ 1131, 5107. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has carefully considered the evidence compiled by and on behalf of the veteran. It has been determined that the veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the veteran has presented a claim that is plausible. This case was previously before the Board and was remanded to the RO in March 1993 in order to secure additional service medical records, to obtain VA outpatient treatment records, and to afford the veteran a VA orthopedic examination. In March 1993, the RO requested the National Personnel Records Center (NPRC) to furnish all treatment records pertaining to the veteran's airborne training in service; in May 1993, NPRC responded that a search for such records was negative. Outpatient treatment records were secured and associated with the claims folder. In November 1993, the veteran underwent a VA orthopedic examination. The Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the veteran in developing the facts pertinent to his claim is required to comply with the duty to assist the veteran as mandated by 38 U.S.C.A. § 5107(a). The veteran's enlistment examination report, dated in October 1958, reveals no complaints or findings pertaining to his back. An inservice treatment record, dated in July 1960, indicates that the veteran had injured his back lifting a door in a motor pool. The diagnosis was lumbosacral strain. The veteran's discharge examination report, dated in January 1962, reveals no complaints or findings pertaining to the veteran's back. A private clinical treatment record, dated in July 1965, reveals that the veteran reported a four year history of recurrent low back pain; he reported that he injured his back on his first parachute jump in service. Initial examination revealed forward flexion, with his hands reaching to within an inch above the floor; straight leg raises and ankle jerks were intact. A follow-up treatment record, dated later in July 1965, notes that the veteran complained of constant pain at the crest of his left buttock which worsened on sitting or driving. Examination showed the back to be dorsally intact. Forward flexion was severely limited, with his hands reaching to within ten inches from the floor with marked dorsalis rotundum; extension was full at 32 degrees and rotation of the spine was normal. Straight leg raises were to 70 degrees, bilaterally. X-rays of the back were negative. The diagnosis was "still" back in flexion only. A private clinical treatment record, dated in September 1970, indicates that the veteran complained of a sore back and chronic low back pain for the last twelve years. The treatment record includes a notation of "service connected?" Medication was prescribed; back exercises and heat to the back were recommended. The veteran was advised to go to the VA. A private clinical treatment record, dated in July 1980, shows that the veteran reported having injured his back twenty years ago as a paratrooper. He indicated the he experienced an occasional short, sharp, shooting pain in his entire left leg. Examination of the back was normal; straight leg raises were to 80 degrees, bilaterally. The veteran could toe and heel walk. The impression of the examiner was no objective changes. An August 1991 VA outpatient treatment record shows that the veteran sought treatment for low back pain which he reported began in service. He was observed to walk easily. X-rays were requested. A September 1992 VA outpatient treatment record indicates that the veteran complained of low back pain. X-rays showed degenerative changes. The assessment was chronic low back pain. A November 1992 VA outpatient treatment record indicates that the veteran complained of low back pain with radiation to the left leg; he reported injuring his back in service during a parachute jump. Examination revealed no listing, compensatory scoliosis, excessive lordosis, or spasm. X-rays revealed degenerative disease in the L5-S1 articular facets. A diagnosis of mild degenerative disease of the lumbosacral spine was given. A February 1993 VA outpatient treatment record indicates that the veteran complained of back pain of a few months duration with tingling in the left leg. Examination revealed tenderness in the lumbosacral area, with no weakness or numbness noted. Straight leg raising was to 30 degrees, bilaterally, with no focal neurological deficit noted. The assessment was chronic low back pain. A computerized tomography (CAT) scan in May 1993 showed focal central bulging of the L3-L4 vertebra with no evidence of spinal stenosis. On VA examination in November 1993, the veteran indicated that he injured his back in service in a parachute jump. He reported that X-rays were taken and after being told that they were normal, he was given medication. He relayed to the examiner that he had variable discomfort in the low back with intermittent radiation of pain into the left leg. On examination the veteran was observed to walk and move about unaided by cane, crutch or back support without evidence of discomfort or limp. Forward flexion of the back was to 45 degrees, lateral flexion was to 25 degrees, rotation was to 20 degrees, bilaterally, and extension was to 10 degrees. He was able to rock back and forth on his forefeet and heels without difficulty, and was able to straighten out both knees while sitting without complaint. Straight leg raising was to 45 degrees, bilaterally, with a pulling sensation in the lower back area; reflexes of the lower extremities were equal and active. Sensation and circulation of the lower extremities were normal, with no evidence of muscle atrophy. X-rays taken in August 1991 that showed mild degenerative disease at the L5-S1 vertebrae were considered. A CAT scan showed a central bulge at the L3-L4 vertebrae with no evidence of spinal stenosis. Although the veteran requested an MRI study, it appears that such study was not done. After review of the claims folder, the examiner opined that the veteran has little from an objective standpoint to substantiate any great amount of problem with his left leg. A diagnosis of chronic low back strain was given. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by peacetime service. 38 U.S.C.A. § 1131. The veteran contends that he injured his back in service in June 1959 during a parachute jump and that X-rays were taken. Despite attempts by the VA to secure records of treatment for this injury, no records were found and there is no clinical evidence of record that the veteran injured his back during a parachute jump in service. The veteran's awards and decorations in service included a Parachute Badge and his claim of injury to the back in service is credible. It is noted that, on VA examination in November 1993, the veteran indicated that he was told that the X-rays taken in 1959 were negative. The veteran's service medical records indicate that the veteran injured his back in July 1960 while lifting a garage door; a diagnosis of lumbosacral strain was offered. The first post-service complaint of a back disorder was in July 1965, over three years after the veteran's separation from service. X-rays at this time revealed no degenerative changes. The veteran at this time indicated he injured his back in a parachute jump in service. Subsequently, a September 1970 treatment record, over eight years after service, and a July 1980 treatment record, over eighteen years after service, show the veteran was again treated for back pain. The 1970 record includes a notation of questionable service connection. The veteran consistently indicated that his back pain started in service; this was prior to the time he was claiming compensation and his statements for treatment purposes are credible. Though veteran's separation examination report is silent as to any injury in service, the post-service manifestations of low back pain are similar to those exhibited in service. While recent clinical findings of degenerative disease of the spine are too remote from service to be related to active duty, the actual low back strain that has persisted since service appears to be of service origin. The examiner in the November 1993 VA examination was requested to comment on the etiology of the veteran's back disability. While he did not specifically state that the veteran's current disability is or is not related to service or an injury in service, he did review the claims folder, report the evidentiary history, including that the veteran indicated that X- rays in June 1959 were negative, and assess the veteran's disability. He indicated that there was little objective evidence to substantiate any problems associated with pain radiating to the veteran's leg. As for establishing a relationship between any current back problems and service, he concluded that the basic diagnosis was low back strain, essentially the same disability exhibited in service. Accordingly, a basis exists for granting service connection for lumbosacral strain as a residual of the back injury incurred in service. 38 U.S.C.A. §§ 1131, 5107. ORDER Service connection for lumbosacral strain is allowed. THOMAS J. DANNAHER 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.