BVA9507307 DOCKET NO. 93-16 327 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran INTRODUCTION The veteran served on active duty from March 1952 to February 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of July 1992 by the Department of Veterans Affairs (VA) St. Paul, Minnesota, Regional Office (RO). The case was initially considered by the Board in February 1994, at which time it was remanded for development. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that he has a chronic low back condition which, although it pre-existed his period of military service, was aggravated therein. He maintains that he received treatment for low back problems several times during service and continued to have similar problems following his service discharge. 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 of entitlement to service connection for a low back disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the originating agency. 2. Low back pathology which existed prior to the veteran's period of military service is not shown to have increased in severity therein. 3. Degenerative disc disease and osteoarthritis of the lumbar spine were intially manifested many years post service. CONCLUSION OF LAW A low back disability was not incurred in or aggravated by active service, and arthritis of the lumbar spine may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim that is plausible. The Board is also satisfied that all relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The case was remanded by the Board in February 1994 to obtain available private and service medical records. A statement was obtained from a private physician, and the National Personnel Records Center replied in March 1994 that no additional service medical records were available. In addition, numerous requests for post-service medical records were sent to private physicians, but the only records received are those discussed below. I. Background Examinations for service entrance were conducted in March and April 1952, at which times the veteran's spine was normal on clinical examination. In early April 1952, the veteran sought medical treatment at a service clinic for low back pain which had been present since the preceding Fall. It reportedly hurt when he did heavy lifting and throwing. He had received no medical attention. On examination at an orthopedic clinic, the lumbosacral area was tender. Range of motion was full, no atrophy was evident, and straight leg raising was negative. The left knee jerk was hypoactive. The diagnosis was: no definite disease found. The veteran was cleared for full duty. An examination for service separation was conducted in February 1952. The veteran denied all "service-connected ills." On clinical examination, his spine was normal. Private clinical records show that the veteran received treatment for psoriatic arthritis of multiple joints, including the sacroiliac joints, in 1984 and 1987. From 1989 to 1992, he was provided treatment at a private orthopedic clinic from Drs. Wengler, Ferraraccio, and Segal. In February 1989, the veteran related that he had had low back pain on and off for many years. Until recently his last bad flare-up had been in 1978. The relevant impression was osteoarthritis and degenerative disc disease of the lumbar spine. At the time of a subsequent visit in April 1992, the veteran said his back problems dated to 1953 or 1954 in the service. A VA orthopedic examination was accomplished in July 1992. The veteran related that he had experienced low back pain of several days duration after a period of heavy work, including shoveling, in the summer of 1952. Since that time, and during service, he had had a sharp, jabbing pain in the lower back several times a year. The pain sometimes radiated down the left lower extremity. The diagnosis was degenerative lumbar vertebral disease with probable herniated disc. Alan S. Divine, M.D., advised in July 1992 that the veteran had had chronic back pain for many years. In May 1994, Dr. Divine added that the veteran had a long history of arthritis which limited his mobility. Statements were submitted on the veteran's behalf in August 1992 by [redacted], a friend, and the veteran's wife and daughter. Mr. [redacted] said the veteran had had a back problem since they became acquainted in 1985. The veteran's wife recalled that he had to be driven to a hospital for treatment of back pain in 1959 and later years. His daughter added that her father had experienced severe back problems as long as she had known him. The veteran was accorded a personal hearing before a member of the Board in July 1993. He testified that he had had occasional back pain for 6 months to a year prior to this entry into service. He said he had injured his back in July 1953 while on a work detail. He first sought medical treatment for his back problems in 1961. II. Analysis When claiming entitlement to service connection for the aggravation of a preexisting condition, an appellant is not required to establish a causal link between his military service and the deterioration of the preservice disability, but must show only that the aggravation occurred in service. When the severity of appellant's preservice disability increases during service, the VA can rebut the presumption of in-service aggravation only by "clear and unmistakable evidence" that the appellant's condition preexisted service and was not aggravated therein. Laposky v. Brown, 4 Vet.App. 331 (1993). In the opinion of the Board, the above evidence establishes that a chronic low back disability clearly and unmistakably existed prior to service. Although no abnormality of the spine was evident when the veteran was examined for service, he has repeatedly given a history of having had low back pain for several months prior to service entrance. He apparently received no medical attention for his low back problems prior to an evaluation at a service orthopedic clinic in April 1952, at which time no definite disease was found. The veteran has maintained that he was provided additional care for low back in service, but records of such treatment have not been located. Significantly, however, when the veteran was examined for service discharge he denied any "ills" related to service, and, objectively, his spine was normal. The veteran has averred that he continued to experience low back symptoms after his discharge and has presented statements from a friend and family members in support of his claim. Although attempts have been made to obtain additional records, the earliest post-service medical records concerning a back condition are dated in the 1980s, approximately three decades after the veteran's separation from military duty. In reaching its decision, the Board acknowledges that the veteran's low back condition, now classified as degenerative disc and osteoarthritis of the lumbar spine, has caused him much discomfort for many years. Given the above evidence, which fails to demonstrate the presence of a chronic low back condition in service, at the time of separation from service, or for many years later, it cannot reasonably be concluded that the low back pathology present at the time of his service entrance underwent an increase in severity therein, 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b), or that arthritis of the lumbar spine was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Doubt as to any material issue is not shown. 38 U.S.C.A. § 5107. ORDER Service connection for a low back disability is denied. WAYNE M. BRAEUER 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.