Citation Nr: 0007101 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 96-40 665 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to service connection for bulging discs at L3-L4 and L4-L5. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The appellant served on active duty from July 1980 to June 1984 and from August 1985 to October 1985. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 1996 rating decision of the San Juan, Puerto Rico, Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for back problems. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claim. 2. The veteran suffered back sprains during his first period of service which resolved prior to his separation therefrom. 3. The veteran's current bulging discs of L3-L4 and L4-L5, first demonstrated in 1995, are not medically related to the episodes of back sprain suffered during military service. CONCLUSION OF LAW Bulging discs at L3-L4 and L4-L5 were not incurred in or aggravated by service. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303 (1999). 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 which is plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). The veteran claims that service connection is warranted for a low back disorder. He contends that he did not have any problems with back pain prior to service and that his current low back problems are attributable to injuries during his first period of active duty service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). The service medical records reveal that on September 1, 1982, the veteran reported that he had fallen off a vehicle and landed on both knees. He also reported low back pain due the fall for the last week. The examiner stated that there was no swelling, discoloration, and that the veteran had good range of motion. The assessment was contusion. The veteran was seen on September 10, 1982, where he complained of low back pain for two days. He reported having picked up a "50 cal" and carrying it to the barracks. The examiner noted that there was no past history, and that there was no swelling or discoloration and that range of motion was "good." The assessment was sprained muscle. In February 1984, the veteran reported a history of back pain for two days. He denied trauma. Upon physical examination, the examiner stated that the veteran had no edema and had full range of motion without pain. The examiner noted that there were no muscle spasms. The impression was lumbar strain. The service separation examination in June 1984 did not note any back pathology. The veteran underwent a VA examination in June 1985. The VA examiner reported no musculoskeletal defects or abnormalities. In March 1987, the veteran was seen with complaints of chronic low back pain. The VA examiner found no motor, sensory, or reflex deficits. Examination of the spinal column revealed mild paravertebral muscle spasm in the lumbar area. The VA examiner stated that the veteran's condition was stable and that there was no evidence of neurologic deficit. In August 1987, the veteran reported chronic low back pain. The VA examiner noted that a March 1987 examination revealed no evidence of focal deficit, and X-rays of the lumbosacral spine were negative. In October 1990, the veteran was seen with complaints of low back pain since 1982. The VA examiner assessed chronic low back pain. He noted that there was no evidence of myositis, muscle spasm, nor radiculopathy. The veteran had an RO hearing in April 1997. He stated that his low back problems basically began in February 1984, when he was working in heavy artillery and would have to carry 100-pound bullets sometimes up to 100 feet. He stated that he had to do this about five or six times per week. He noted that he had had back problems prior to February 1984, but that he had not sought treatment for such. The veteran testified that he did not seek much treatment after that because he was expected to do his job. He stated that he went to see Dr. Lopez in September 1984 for his back pain following his discharge from service, and that he then saw Dr. Lopez three or four times per month. He testified that the pain would get so bad that he sometimes could not get out of bed or put on his socks. The veteran stated that he did not have any back problems prior to entering service. A March 1994 x-ray of the lumbosacral spine revealed evidence of minimal disc space narrowing at the L5-S1 level. A March 1995 CT scan of the lumbar spine revealed minimal circumferential bulging disc at L3-L4 and broad base posterior bulging disc at L4-L5. The veteran submitted a statement from Dr. Edicto Lopez Ortiz at the time of the April 1997 hearing. Dr. Ortiz stated that he had treated the veteran from September 1984 to November 1988 for chronic low back pain, which was probably due to an accident while serving in the Armed Forces. In a July 1997 letter, Dr. Ortiz stated that he had seen the veteran for back pain due to trauma received while in the United States Army, when shooting a weapon. Dr. Ortiz stated that the veteran had come to his office for treatment in September 1984, always complaining of the same symptomatology. The veteran underwent a VA examination in May 1999. He reported severe low back pain with radiation to all the back associated with cramps of both thighs. On examination, the veteran's lumbar spine had 50 degrees of flexion, 10 degrees of extension, 40 degrees of lateral flexion, and 15 degrees of rotations. The VA examiner noted that the veteran did not put forth his full effort. The examiner reported that he had observed the veteran exhibit more range of motion with a pain free expression while dressing and undressing than he had while performing the measured ranges of motion. The VA examiner stated that there was no objective evidence of lumbar muscle spasm or painful motion in all movements of the lumbar spine. There was no objective evidence of weakness of the legs with normal muscle strength graded 5/5. Additionally, the VA examiner noted that there was no tenderness to palpation on lumbar paravertebral muscles. The VA examiner entered a diagnosis of L3-L4 and L4-L5 bulging disc by CT scan of March 1995 and back sprain during military service. The VA examiner stated that he had reviewed the appellant's claims file carefully and reported the appellant's medical history related to his lumbar spine. He then concluded, "With the available medical evidence, it is my opinion that the present bulging discs of L3-L4 and L4-L5 shown on CT scan of 3/23/95 are not related to the episodes of back sprain suffered during military service." The Board notes Dr. Ortiz's April 1997 statement that the veteran had chronic lumbar pain which was "probably due to" an accident that the veteran sustained in service. Additionally, Dr. Ortiz stated in a July 1997 letter that the veteran had complained of pain "due to trauma received while in the U.S. Army." However, Dr. Ortiz's statements refer only to complaints of back pain, and do not specifically relate the current diagnosis of bulging discs at L3-L4 and L4-L5 to the inservice findings. Nor is there any indication that Dr. Ortiz reviewed the veteran's service medical records. In this regard, the Board finds that the VA examiner's statement, made after full review of the record, that the veteran's current bulging discs of L3-L4 and L4-L5 were not related to the episodes of back sprain suffered during military service, outweighs the unsupported statements of Dr. Ortiz. Since the current diagnosis for which the veteran seeks service connection is bulging discs at L3-L4 and L4-L5, the veteran is not competent to allege that an injury in service caused the bulging discs in his lumbar spine. See Savage, 10 Vet. App. at 494; Epps, 126 F.3d at 1468-69; Slater v. Brown, 9 Vet. App. 240, 243 (1996) (medical evidence is needed to provide causal nexus between veteran's inservice injury and arthritis of the cervical spine); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In reviewing the record as a whole, the Board finds that the preponderance of the evidence is against the claim for service connection for bulging discs at L3-L4 and L4-L5. There is no equipoise between the positive and negative evidence; therefore no reasonable doubt issue is raised. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1999). ORDER Service connection for bulging discs at L3-L4 and L4-L5 is denied. M. G. MAZZUCCHELLI Acting Member, Board of Veterans' Appeals