Citation Nr: 0003952 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 98-13 629 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a post-operative lumbosacral spine disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The veteran, his wife and son-in-law ATTORNEY FOR THE BOARD L. Spear Ethridge, Associate Counsel INTRODUCTION The veteran had active duty from March 1951 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating actions by the Phoenix, Arizona Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT Competent evidence that the veteran's current residuals of post-operative back surgery are related to his military service has not been submitted. CONCLUSION OF LAW The claim for service connection for a post-operative lumbosacral spine disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (1999). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity in service. This includes medical facts and principles which may be considered to determine whether the increase was due to the natural progress of the condition. Aggravation of a preexisting disease or injury may not be conceded where the condition underwent no increase in severity during service on the basis of all of the evidence of record pertinent to the manifestations of the disability prior to, during, and subsequent to service. Consideration will be given to the circumstances, conditions, and hardships of service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b) (1999). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (1999). The threshold question to be answered is whether the veteran has presented evidence sufficient to justify a belief by a fair and impartial individual that his claim is well- grounded; that is, a claim which is plausible and capable of substantiation. See 38 U.S.C.A. § 5107(a); Chelte v. Brown, 10 Vet. App. 268, 270 (1997) (citing Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990)). Generally, a well-grounded claim for service connection requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. Caluza v. Brown, 7 Vet. App. 489, 504, 506 (1995); see also Epps v. Gober 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well-grounded claim set forth in Caluza, supra). The second and third Caluza elements can be satisfied under 38 C.F.R. 3.303(b) by (a) evidence that the condition was "noted" during service or during an applicable presumptive period; (b) evidence showing post- service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. 38 C.F.R. 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). For the purpose of determining whether a claim is well grounded, the credibility of the evidence in support of the claim must be presumed. Robinette v Brown, 8 Vet. App. 69, 75 (1995). Service medical records reveal that at an enlistment examination in January 1951, the veteran reported having been hit by a car at the age of 17. He broke his leg and had a rupture fixed at the time of the accident in 1946. In October 1952, the veteran complained of back and leg pain, and he was eventually hospitalized twice that month. It was noted that the veteran wore a heel lift, and had genu valgum of the left knee. In an October 9, 1952 record, it was noted that in the year since discarding his heel lift, the veteran had noticed progressive severity in the leg and back pain. Service medical records reveal that the genu valgum was not the result of the veteran's own misconduct and that it existed prior to service. In a June 1953 record, it was noted that the veteran gave a history of having the car accident in 1947 and that he believed that he had back pain from that accident. On May 11, 1954, a treating physician stated: History reviewed. My opinion is that there is little to be accomplished for this man.-Apparently his deformity was missed on recruiting station examination as spine and extremities were stamped as negative... At his March 1955 separation examination, the veteran was clinically evaluated as normal for the spine and other musculoskeletal areas. Post service records consist of only private medical records (no VA records), lay statements and the veteran's personal hearing testimony and other contentions. Private treatment records reveal that the veteran has been treated since 1984 for complaints of low back pain, and that he underwent a diskogram at that time. The remainder of the private medical records show the veteran's continued complaints and treatment of low back pain from January 1996 to December 1997. During that time, the veteran underwent diagnostic testing, such as magnetic resonance imaging. Noteworthy is that none of the medical records state that the veteran's current symptomatology of low back pain is related in any way to his military service. Likewise, the veteran in a January 1996 record, gave a history of having initially hurt his back in 1968 during a fall, and that thereafter there was gradual onset of his back problems. In a letter dated November 1996, one of his physician's noted that the veteran presented with a chief complaint of back pain of many years duration, and that the diagnostic impression was that of lumbar stenosis. In describing the veteran's condition, and treatment, the physician did not indicate that the veteran's back disorder was related to service. The same physician saw the veteran again one year later in November 1997, and opined on the veteran's treatment, condition, and again, made no mention of any relationship to service. A personal hearing was held at the RO in October 1998. The veteran's wife and son-in-law also testified. The veteran's testimony was that he injured his back in service when while working in the boats on a pier and carrying a 300 pound weight with another, he fell hitting the ground and injuring his back. Thereafter he went to sick call on the base, but he was put to work to help the other more injured soldiers. When he got out of the Navy, the veteran worked as a truck driver for 40 years. He did not load or unload trucks. The veteran received workers compensation in 1984, after his back operation. He currently had back pain for which he took medication, and he used a cane for support to walk. The veteran indicated that one of his doctor's told him that his back condition was caused by an old injury to his back. The veteran indicated that there were medical records outstanding, which he was unsure he would be able to obtain, but would try to obtain. The veteran's wife's testimony was that she had been married to the veteran for 9 years and could attest to the fact that the veteran had daily back pain. The pain interrupted his sleep at night. The veteran's son-in-law's testimony was that, as a mechanic working with the veteran for 27 years, he witnessed the veteran having back trouble. Lay statements were received from the veteran's ex-wife and his mother. In an August 1998 statement, his ex-wife stated that she remembered that the veteran hurt his back in service after carrying something down stairs. She helped him relieve his back pain at that time by rubbing ointment on his back. She indicated that he suffered with pain all of his life. The veteran's mother submitted a statement in October 1998 to the effect that she remembered that the veteran called his father while he was still in service and spoke of having problems with his back. She stated that the veteran continued to suffer with back pain. The Board has reviewed the record in its entirety and determines that service connection for a lumbosacral spine disorder is not warranted because the veteran had not presented a well grounded claim for the same. The evidence presented for the record shows no causal connection, nexus, link, between the inservice treatment of the veteran's back complaints, and his current post-operative back condition. The earliest treatment records show that the veteran underwent at back operation in 1984, which is a time significantly remote from service separation in March 1955. Moreover, as mentioned in the fact pattern above, the private treatment records submitted for the record show no indication of a link between the veteran's current back disorder and his military service. The medical records presented show only the chronological treatment that the veteran has received for his back since his operation in 1984. Therein, it is noted that the veteran even gave a different history of back pain onset than the one presented at his personal hearing. The veteran has said that he injured his back in 1968. In any event, there is a medical opinion in service suggesting that the veteran had a pre-existing condition. What remains open in the analysis is whether that preexisting condition of the left leg was attributable to any inservice onset or aggravation of a back disorder. Such questions need not be further developed at this time since the veteran had not presented a well grounded claim to the Board on this appeal. What is necessary to well ground this claim is a causal connection between current symptomatology and service. Caluza v. Brown; Epps v. Gober, both supra. The Board realizes that the veteran has indicated that he has had low back pain since service, and has lay witnesses who have attested to the same. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In so observing, the Board has carefully considered the veteran's account of continued symptomatology since his discharge from active duty in March 1955. However, in Voerth v. West, 13 Vet. App. 117, 120 (1999), it was held that this section does not relieve the claimant of the burden of providing a medical nexus between service and the currently claimed disability. In this case, the veteran has failed to do so. Although the veteran indicated at his personal hearing that he had additional evidence to submit, further evidence from the veteran was not forthcoming. More particularly, the Board has examined all evidence of record with a view towards determining whether the appellant has notified VA of the possible existence of information which would render his claim plausible. However, the Board finds no such information. See Beausoleil v. Brown, 8 Vet. App. 459, 464- 465 (1996); Robinette v. Brown, 8 Vet. App. 69,80 (1995); see also generally Stuckey v. West, 13 Vet. App. 163, 195 (1999), (observing in part that when it is alleged that there is specific evidence in existence that would manifestly well ground a claim, VA has a duty to inform the claimant of the importance of obtaining this evidence to "complete the application.") (Italics added). ORDER Service connection for a post-operative lumbosacral spine disorder is denied. Deborah W. Singleton Member, Board of Veterans' Appeals