BVA9502413 DOCKET NO. 92-05 532 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Heather J. Harner, Associate Counsel INTRODUCTION The veteran served on active duty from February 1953 to February 1955. This appeal to the Board of Veterans' Appeals (Board) arises from an October 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In May 1993, the Board remanded the case to the RO for further development. Following such development, the case has been returned to the Board. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends service connection is warranted for a low back disorder. He avers he first suffered low back pain in service and has continued to suffer low back pain until the present. 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 preponderance of the evidence is against the veteran's claim. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. A chronic low back disorder was not present in service, and arthritis of the low back was not manifested within one year following the veteran's discharge from active duty. 3. The veteran's current low back disorder is not shown to be related to service or to any incident therein. CONCLUSION OF LAW A low back disorder was not incurred or aggravated in service, and osteoarthritis of the low back may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we note that the veteran's claim is well grounded. By this, we mean that he has submitted a claim which is plausible. We further conclude that the VA has met its statutory duty to assist the veteran in the development of his claim and that no further assistance is required to satisfy the provisions of 38 U.S.C.A. § 5107 (West 1991). Service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time. Service connection for a chronic disease such as osteoarthritis may also be established by demonstrating that the disability became manifest to a degree of 10 percent or more within one year following the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). The veteran's service medical records do not contain any notation of a back injury or back pain in service. No spinal abnormalities were noted when the veteran was examined in March 1952 during a pre-induction physical examination or when he was examined in February 1955 for the purpose of separation from service. Although the service medical records contain references to complaints and treatment involving the lower extremities, there is no indication that the back was involved. The veteran has submitted a letter from John J. Vitacco, M.D., written in November 1991. Dr. Vitacco wrote that he treated the veteran in 1955 for acute exacerbation of traumatic arthritis syndrome. Although his records were destroyed, Dr. Vitacco remembered that the veteran experienced frequent attacks of lower back pain resulting from an in-service injury which almost totally incapacitated him. According to his recollection, the veteran was rendered immobile, in a rigid fixed position with severe pain over the lumbosacral area and radiating nerve pain to the buttocks and lower extremities. Although Dr. Vitacco's letter indicates that the veteran experienced back trouble shortly after service, we must assess the contents of the letter in light of the number of years which have passed between Dr. Vitacco's treatment of the veteran and his writing the letter. As Dr. Vitacco himself points out, the letter is based entirely upon his recollection of events which transpired 36 years previously. There is no contemporaneous evidence corroborating Dr. Vitacco's account of the veteran's back troubles in the late 1950's. In fact, the veteran's contentions themselves contain no account of the debilitatingly severe back problem described by Dr. Vitacco or description of a traumatic incident which might have brought on such a problem. Finally, the veteran's separation examination report, which is contemporaneous with his service and the best evidence of his state of health at the time, contains no mention of any back disability and, specifically, the very severe type of disability Dr. Vitacco states the veteran described to him in 1955. The veteran has provided a listing of physicians who treated him for low back complaints. The listing begins with treatment in 1984. The RO attempted to obtain records from all these sources. No records received predate 1990. The veteran's claims file contains numerous records of recent treatment for low back disability. Statements and reports of treatment from at least four orthopedic specialists detail treatment including a surgical procedure, pain management techniques, physical therapy, and numerous doctors' office visits. Lumbosacral disc disease, arthritis, stenosis, and spondylolisthesis have all been diagnosed. These reports and statements, however, are dated between 1990 and 1994, reflecting only recent complaints and treatment. No clinical evidence supports the veteran's contentions that his low back has been continuously disabled since he was discharged from service. In testimony at a hearing in February 1992, the veteran indicated that he had problems with his back in service, was seen by a service physician, and was given arch supports, which relieved the problem. Problems with his lower extremities are documented in the service medical records, and his testimony regarding lower extremity problems in service is credible. Since the service medical records for that period of time are available and do not confirm his recollections of low back problems, his testimony on that point is not credible and must be discounted. The veteran's service medical records are negative for any complaints or treatment involving the low back. The letter submitted by Dr. Vitacco demonstrates, at most, that the veteran experienced acute back trouble in the 1955. Chronologically, the next evidence of a back disorder consists of the records relating to back treatment between 1990 and 1994, nearly 35 years later. Continuity of symptomatology between any inservice back disorder and the veteran's current low back disability has not been demonstrated. In summary, in support of the veteran's claim, we have his lay testimony that he had back complaints in service and received treatment for those complaints at the time; his assertions that he had continuity of treatment after service; a 1991 statement by a private physician who retired in 1984, whose records are not available, but who recalls that he saw the veteran in 1955 for traumatic arthritis syndrome which he ascribed to events in service; and recently recorded clinical history in which the veteran relates the onset of his current low back pathology to service. Against his claim, we have the total absence of any reference to low back complaints, findings, or treatment in service medical records or on the service separation examination report; and the absence of any clinical records which would evidence continuity of symptomatology between service and 1990. This record does not reasonably relate the veteran's current low back disorders to service or to any incident therein. Thus, the preponderance of the evidence is against the veteran's claim; and service connection for a low back disorder must be denied. ORDER Service connection for a low back disorder is denied. GEORGE R. SENYK 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.