Citation Nr: 0005927 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 97-04 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for lumbosacral strain. REPRESENTATION Appellant represented by: Colorado Department of Social Services ATTORNEY FOR THE BOARD K. S. Hughes, Associate Counsel INTRODUCTION The veteran served on active duty from July 1981 to July 1984. He reports that, after this period of service, he was a member of a Naval Reserve unit until August 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. This case was previously before the Board in April 1998. At this time, the issues on appeal included entitlement to service connection for a left foot disorder and residuals of flash burns, bilateral eyes, which were denied by the Board. The Board remanded the issue of lumbosacral strain for additional development, to include consideration of additional evidence under 38 C.F.R. § 20.1304(c). Thereafter, the RO accomplished the additional development and returned the claims file to the Board. In his January 1997 Substantive Appeal, the veteran requested that he be afforded a hearing before a Member of the Board at the RO. This hearing was scheduled for October 29, 1997, and the veteran reported at the scheduled time; however, his representative was unavailable. Thereafter, in a November 1997 statement, the veteran indicated that he waived his right to an in-person hearing and wished to be afforded a hearing before a Member of the Board via video-conference. Such a hearing was scheduled to take place on December 4, 1997; however, the veteran failed to report for that hearing. Accordingly, pursuant to 38 C.F.R. § 20.704(d) (1999), the veteran's case will be processed as though the request for a hearing had been withdrawn. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. A chronic low back disability was not present during the veteran's military service and no competent evidence is of record which tends to link the veteran's current low back disorder to any incident of his military service. CONCLUSION OF LAW The claim of entitlement to service connection for lumbosacral strain is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background: The veteran's service medical records show that he was treated for scratches on the mid back area in July 1982 and pain below the left shoulder blade area in September 1982. On January 10, 1984, the veteran complained of lower back pain due to strenuous work. The diagnosis was lower muscle strain. Two days later, this diagnosis was amended to left lower back muscle strain. A January 1984 Report of Medical History for separation is positive for recurrent back pain and notes the veteran's complaint that the pain comes back every now and then. Clinical findings at this time included a normal spine and other musculoskeletal structure as well as a 3 inch scar on the back. A March 1984 treatment record reflects that the veteran sought treatment for low back pain. He reported no history of trauma. The diagnosis was mild muscle strain. The veteran was released from active military service in July 1984. A January 1986 Report of Medical History notes a history of recurrent back pain. The physician's summary notes mild back strain while on active duty. Clinical evaluation of the veteran's spine and other musculoskeletal structure were normal. A February 1994 letter from D.D. Koons, M.D., to a claims adjuster regarding the veteran's Workers' Compensation claim reflects that Dr. Koons reviewed the veteran's chart and noted that the veteran denied prior back injuries. A February 1996 letter from J. W. Crawford, M.D., to Dr. Koons notes that the veteran related a history of low and mid back pain with radiation down to the feet with numb and tingling sensation since 1992. Dr. Crawford's impression included normal neurologic and musculoskeletal examination except for some localized tenderness at the T4-T5 and lumbosacral junction. The doctor commented that the thoracic spinal tenderness was more impressive than low back. He was unable to explain the veteran's symptomatic complaints based on the physical examination. An April 1996 report of VA examination notes that the veteran stated that he injured his lumbosacral spine at work in 1992 while lifting some heavy spools of wire. Upon further questioning by the examiner, he also recalled experiencing some mild intermittent low back pain without a history of trauma or lifting injury during service and indicated that these symptoms were exacerbated by the 1992 injury. The veteran's chief complaint regarding his back consisted of midline low back pain and ache. Clinical evaluation of the lumbosacral spine demonstrated full range of motion, no specific bony tenderness or soft tissue spasm, and straight leg sign was negative bilaterally in the seated and supine positions. Motor strength was 5/5 in the lower extremities and the veteran had normal sensation to light touch in the L4-S1 distribution, bilaterally. The diagnoses included mild lumbosacral strain. X-ray examination revealed a normal lumbosacral spine. An April 1996 Consultation Report from Dr. Koons notes that the veteran presented on March 20, 1992, to Dr. Lilly's office with a history that on January 13, 1992, he was weighing cable and sliding it onto a scale in a bent-over position when he felt the acute onset of pain in the lower back which radiated to the sacrum. It is also noted that, on June 2, 1992, the veteran was released by Dr. Lilly to return to work full-time without restrictions. Thereafter, in October 1992, the veteran returned with complaints of continuing pain. Dr. Koons notes that the veteran had a consultation with Dr. Crawford in February 1996 and Dr. Crawford was "unable to explain the patient's symptomatic complaints." A May 1996 Consultation Report from Dr. Koons reflects that the veteran's complaints included pain in his lower back, which he claimed was a result of a work related injury sustained in 1992. Similarly, when asked about his physical health before his injury, the veteran stated that it was "excellent." A May 1996 Physical Therapy Initial Evaluation notes that the veteran stated that he originally injured his low back in 1992 when sliding a roll of cable wire onto a scale. A December 1997 letter from Dr. Koons reflects that Dr. Koons reviewed the veteran's service related medical records in connection with the veteran's desire to know if it is possible that his symptoms of low back pain are service connected. This letter includes a history of the veteran's low back complaints and treatment and notes that the veteran has been followed by a rheumatologist who has been unable to make a diagnosis. Dr. Koons notes that the work-related injury in 1992 has played a significant role in the veteran's symptomatology; however, "one cannot totally ignore the fact that when he entered the service in 1981, [the veteran] had no history of low back pain and this was not the case when he left the service in 1984." Dr. Koons concluded that, if we had a diagnosis, it would be easier to make some statement with regard to the possibility of this problem being service connected. Private treatment records, dated in 1997 and 1998, reflect that the veteran has continued to seek treatment for recurrent low back pain. The assessments include right lower back pain and musculoskeletal strain in the lower back. An August 1999 report of VA examination reflects that the veteran's medical records were available and reviewed at the time of the evaluation. The examiner noted the veteran's complaints of and treatment for low back pain during service as well the absence of follow-ups and/or complaints of low back pain after getting out of the military in 1984 until 1992. Moreover, the veteran filled out employment paper and did not note any complaints of low back pain and he told the examiner that he felt that he "didn't have any." In January 1992, the veteran claimed workman's compensation injury as a result of his back/groin popping when he was taking inventory of cable on big spools. Thereafter, the veteran has continued to seek treatment for complaints which include low back pain. The examiner provided the following opinion: In the opinion of this examiner, the strains as described in the records healed and resolved. In the opinion of this examiner, the injury of January 1992 is compatible with his current complaints at this time. I do not believe apportionment is appropriate. This is based on his report of injury and significant discomfort as of 1992 with no report of restriction and/or limitation prior to this, and the fact that an apportionment did not occur as related to the 1992 workman's compensation injury and pre-existing complaints. A report of radiologic evaluation in connection with examination revealed a normal lumbosacral spine. Legal Criteria: Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (1999). The threshold question that must be resolved is whether the veteran has presented evidence of a well-grounded claim. A well-grounded claim is a plausible claim, that is, a claim which is meritorious on its own or capable of substantiation. An allegation that a disorder is service connected is not sufficient; the veteran must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a) (West 1991); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App 91. 92-93 (1993). In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); evidence of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and evidence of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In addition to the general standard set forth in Caluza v. Brown, chronicity and continuity standards can also establish a well-grounded claim. Savage v. Gober, 10 Vet. App. 488 (1997). The chronicity standard is established by competent evidence of the existence of a chronic disease in service or during an applicable presumption period; and present manifestations of the same chronic disease. The continuity standard is established by medical evidence of a current disability; evidence that a condition was noted in service or during a presumption period; evidence of post- service continuity of symptomatology; and medical, or in some circumstances, lay evidence of a nexus between the present disability and the post- service symptomatology. This type of lay evidence, for purposes of well groundedness, will be presumed credible when it involves visible symptomatology that is not inherently incredible or beyond the competence of a lay person to observe. Savage, supra. Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence is necessary to establish a well-grounded claim. Lay assertions of medical causation or a medical diagnosis cannot constitute evidence to render a claim well grounded. Grottveit, 5 Vet. App. at 93. Analysis: The Board's review of the evidentiary record discloses that the veteran was seen during service for low back pain in January 1984 and again in March 1984. He reported a history of recurrent back pain in January 1984 and again in January 1986. However, no chronic low back disorder was identified during the veteran's military service. Post service low back complaints were clearly attributed to an intervening work injury. The private medical records submitted by the veteran clearly show that the veteran suffered a back injury after service in January 1992. Significantly, the Board notes that the veteran has consistently reported that he was in good health prior to his 1992 work related injury. The VA examiner in 1999 also noted the absence of complaints of low back pain or follow-up treatment from 1984 until 1992. Thus, post-service continuity of symptomatology is not shown. No medical evidence is of record which tends to show that the in-service back complaints represented a chronic disability or that the veteran's post-service back problems are related to his in- service back complaints. In this regard, the August 1999 report of VA examination reflects the examiner's opinion that the veteran's low back complaints during service resolved and that his current symptoms were compatible with the January 1992 injury. Accordingly, inasmuch as a chronic back disability is not shown to have been present during service and there is no competent evidence linking the veteran's current back disability to any incident of his military service, the veteran's claim for service connection for a low back disorder must be denied as not well grounded. The Board recognizes that the Court has held that there is some duty to assist the veteran in the completion of his application for benefits under 38 U.S.C.A. § 5103 (West 1991 & Supp. 1999) even where his claim appears to be not well- grounded where a veteran has identified the existence of evidence that could plausibly well-ground the claim. See generally, Beausoleil v. Brown, 8 Vet. App. 459 (1996); and Robinette v. Brown, 8 Vet. App. 69 (1995), as modified in this context by Epps v. Brown, 9 Vet. App. 341, 344 (1996). In the instant case, however, the veteran has not identified any medical evidence that has not been submitted or obtained which will support a well-grounded claim. The VA has made numerous attempts to assist the veteran in obtaining all available evidence, medical and otherwise, in support of his claim. Thus, the VA has satisfied its duty to inform the veteran under 38 U.S.C.A. § 5103(a). See Slater v. Brown, 9 Vet. App. 240, 244 (1996). ORDER The appeal based on a claim for service connection for lumbosacral strain is denied. Gary L. Gick Member, Board of Veterans' Appeals