BVA9503441 DOCKET NO. 91-41 086 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for disability of the lumbosacral spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had active service from April 1957 to March 1959, and active duty for training at various times, including from February 27, 1983, to March 11, 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1990 rating decision by the Department of Veterans Affairs (VA) Regional Office in Denver, Colorado (RO). CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran has degenerative disc disease of the lumbosacral spine which was initially manifested while he was performing active duty for training in March 1983. It is asserted that following the acute onset of low back pain with radiation into the left lower extremity in March 1983, the veteran has continuously experienced low back pain. 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 record supports the grant of service connection for degenerative disc disease of the lumbosacral spine. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Chronic disability of the lumbosacral spine was first manifested during active duty for training. CONCLUSION OF LAW Degenerative disc disease of the lumbosacral spine was incurred during active duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107. We are satisfied that all relevant facts have been properly developed and that no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Service medical records reflect that the veteran was seen in the emergency room on March 2, 1983. He complained of low back pain radiating into the left lower extremity. X-rays revealed no bony injury and the veteran was referred to the orthopedic clinic. He was seen in the orthopedic clinic on March 4, 1983. On March 4, the veteran reported that he had strained his back while working out. He reported no acute snap or pop in his back, but indicated that approximately 20 years before, there had been a pop in his back with pain for 1 to 2 days which spontaneously resolved. Sensation on the lateral aspect of the veteran's foot was decreased. Deep tendon reflexes were two plus and equal for L4 and decreased on the left for S1. The assessment was probable herniated nucleus pulposus, rule out muscle strain. The veteran was referred for a CT scan. The report of a March 8, 1983, CT scan of the lumbar spine by Bethania Hospital reflects that the examination was normal. There was no evidence of a herniated nucleus pulposus. There was a borderline lateral recess stenosis at S1. A May 1983 record from Fitzsimons Army Medical Center states that the veteran reported that he developed numbness in the left S1 distribution. It notes that a CT scan showed no evidence of herniated nucleus pulposus. Physical examination revealed no acute distress. Muscle strength was 5/5 throughout. Reflexes were two plus and symmetrical except for zero at the left foot. Sensation was intact. X-rays were normal. The impression was that there was no doubt that the veteran had left S1 radiculopathy most likely secondary to herniated nucleus pulposus. An August 1987 letter from K. Mason Howard, M.D., states that the veteran had a disc syndrome in his lower back which had been productive on occasion of low back pain and sciatic radiation into his right (sic) leg. It indicates that the physician had seen the veteran in May 1987 with such a recurrence and prescribed physical therapy. The report of an August 1990 VA examination states that the veteran reported his back injury in 1983 with a reinjury in 1987 while doing yard work. The diagnoses included moderate degenerative disc disease of the lumbosacral spine noted radiographically with abnormal neurologic examination. A May 1991 letter from Ronald C. Ochsner, M.D., states that he had reviewed the veteran's X-rays from 1983 and again from 1990. He indicated that he believed that it was clear that there was evidence of degenerative disc disease at the L5 - S1 level, and the 1990 X-rays showed that this problem had progressed considerably. He believed that there was "absolutely no doubt that the condition was present in the 1983 X-rays." A May 1994 VA report of examination of the March 1983 CT scan of the veteran's lumbosacral spine states that there was evidence of disc space narrowing at the L5 - S1 level with end-plate sclerosis compatible with the presence of spondylosis. It states that there was no evidence of disc herniation at the L3-4 interspace, and that there appeared to be slight hypertrophic degenerative changes involving the facets at the L4-5 interspace. At the L5 - S1 level, there appeared to be slight overgrowth of the left superior facet of S1 slightly compromising the left lateral recess of indeterminate clinical significance. The impression was spondylosis of the lumbar spine as described. Testimony offered by the veteran during his personal hearing, as well as the history provided by the veteran in March 1983 indicate that while he had some type of acute back pain approximately 20 years before 1983, that pain had resolved. The record is clear that the veteran did experience an acute onset of pain during his active duty for training in March 1983. The record is also clear that the veteran currently has degenerative disc disease of the lumbosacral spine. There is conflicting evidence with regard to whether the veteran experienced injury to a disc in his lumbosacral spine in March 1983. The evidence in opposition to such a finding includes the report of the March 1983 CT scan which found no herniated nucleus pulposus and a normal examination, and the May 1994 VA interpretation of that same CT scan which does not indicate a finding of disc herniation. The evidence which favors a finding that the veteran injured a disc in March 1983 includes the veteran's testimony with respect to symptoms he experienced following a workout during his active duty for training, March 1983 service medical records which reflect that a herniated nucleus pulposus was suspected on the basis of examination, although this assessment was offered without benefit of a CT scan. Even more persuasive is the May 1983 service medical record which reflects that the examining physician was aware that a CT scan had found no evidence of herniated nucleus pulposus, but still concluded with the impression that the veteran had left S1 radiculopathy most likely secondary to herniated nucleus pulposus. While the August 1987 letter from the private physician is very general in nature, the May 1991 letter from the private physician identifies the L5 - S1 level as being the location of degenerative disc disease. The May 1994 VA interpretation of the March 1983 CT scan identifies this same location as a narrowing of the spinal canal at S1. Nevertheless, after fully considering all of the above, it would appear that there is an equipoise in the evidence with regard to whether the veteran did or did not experience an injury to a disc in his lumbosacral spine during his active duty for training in March 1983. It is felt by the reviewing Board member that to conclude otherwise, under the particular facts of this case, would not withstand Court scrutiny. In resolving doubt in the veteran's behalf, service connection for degenerative disc disease of the lumbosacral spine is granted. ORDER Service connection for degenerative disc disease of the lumbosacral spine is granted. JEFF MARTIN 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.