Citation Nr: 0002732 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 98-12 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for lumbar disc disease, claimed as residuals of a low back injury. WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Nancy R. Kegerreis INTRODUCTION The veteran served on active duty from January 1985 to January 1988. This matter comes before the Board of Veterans' Appeals (Board) from a May 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied service connection for residuals of a low back injury. FINDING OF FACT The veteran has presented no evidence of a medical nexus between current degenerative disc disease of the lumbar spine and any disease or injury in service, and there is no competent evidence of a medical nexus between degenerative disc disease of the lumbar spine and intermittent back pain. Her claim of entitlement to service connection is not plausible. CONCLUSION OF LAW The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for a low back injury. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background Service medical records do not indicate an injury to, treatment for, or complaints regarding the veteran's lumbar spine. A separation medical examination in October 1987 was negative for a back condition and in her Report of Medical History, the veteran denied recurrent back pain. In November 1997, the veteran underwent a CT scan for complaints of low back pain at Mississippi Baptist Medical Center. This showed that the neural foramina were widely patent and the spinal canal well preserved, although there could be a very mild diffuse disc bulge at the L4-L5 level. There was no definite evidence of a spinal stenosis. The impression was mild, diffuse disc bulges at several levels, but no evidence of narrowing of the neural foramina or of spinal stenosis. No definite focal disc herniation was identified on this study. Records from the University Hospitals and Clinics/ University of Mississippi Medical Center in March 1998 note treatment for neck/shoulder pain, caused by a strain at work, but made no mention of any low back complaints. In July 1998, she was seen for complaints of lower back pain. Examination revealed no swelling or deformity, but tenderness over the lower lumbar spinous process. The assessment was lumbar disc disease/chronic back pain. In August 1998, following two weeks of physical therapy, she reported experiencing less lower back pain. Examination revealed full range of motion of her back, no tenderness, and no deformity. Assessment was lumbar disc disease. In May 1999, she was seen for recurrence of lower back pain with radiculopathy to the right lower extremity. Examination revealed no swelling or deformity and a negative range of motion. She was to continue on Flexeril and Naprosyn. In May 1999, the veteran testified at a personal hearing before the RO. She stated that she was not sure how she had injured her back in service, but stated that she had been told by a physician that it was not unusual to have low back pains after the birth of a child. Subsequently, while serving in the Army National Guard as a cook, she had suffered back pains when lifting pots and pans. She reported that she had had a CT scan in 1997 which had shown a bulged disk, and that she had undergone physical therapy at Baptist Health Plex for additional injury sustained while lifting garbage cans on active duty for training in the National Guard. She claimed to have missed work occasionally because of a sensation of pins sticking in her leg. In August 1999, the RO confirmed its denial of service connection for residuals of a low back injury, but subsequently, in October 1999, granted service connection at a 10 percent evaluation for cervical strain due to lifting garbage cans on active duty for training in the National Guard. II. Legal Analysis Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). In order to establish service connection, either the evidence must show affirmatively that such a disease or injury was incurred in or aggravated by service, or statutory presumptions may be applied. A veteran who has 90 days or more of wartime service or peacetime service after December 31, 1946, may be entitled to presumptive service connection of a chronic disease that becomes manifest to a degree of 10 percent or more within one year from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 1991 & Supp. 1999); 38 C.F.R. § 3.307 (1999). With chronic disease shown as such in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). If there is insufficient evidence to establish chronicity in service, evidence of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b), as is medical evidence of a nexus between the symptomatology and the current disability. See Savage v. Gober, 10 Vet. App. 488 (1997). A claim for service connection requires three elements to be well-grounded. It requires competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus between the in- service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. Epps v. Gober, 126 F.3d 1464 (1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Truthfulness of the evidence is presumed in determining whether a claim is well- grounded. Id. at 504. The Court has held that a lay person can provide probative eye-witness evidence of visible symptoms; however, a lay person can not provide probative evidence as to matters which require specialized medical knowledge acquired through experience, training or education. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Court has further held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Grottveit, 5 Vet. App. at 93. In this regard, the Court has elaborated further as to the type of evidence that would be required to establish a well- grounded claim for service connection based on continuity of symptomatology under 38 C.F.R. § 3.303(b). As to type of evidence, unless the condition is of a type as to which a lay person's observation is competent, medical evidence of noting will be required. In addition, because it does not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent. Savage, 10 Vet. App. 488. Records do not show a diagnosed low back condition until November 1997, nearly ten years subsequent to the veteran's discharge from active military service, when a CT scan revealed mild diffuse disc bulges at several levels. The veteran is thus able to show a current lumbar spine disability. There is no medical evidence of a low back disability during service, and a diagnosis of degenerative disc disease is one that requires medical expertise, so there is certainly no evidence of the currently-diagnosed disorder during service. There is no competent evidence, therefore, of a chronic disability in service that the veteran still has. However, the veteran has testified that she had low back pain after the birth of her child. Although she is not competent to diagnose the cause of the pain, she is competent to say that she experienced back pain in service. The veteran has not offered evidence of continuity of symptomatology. At her hearing, she said her back hurt in 1987, and that it hurt again in 1997. She said she did not remember any injury during her active duty, but that a doctor told her pregnancy often results in low back pain. Her private treatment records dated in November 1997 show that she complained of periodic or intermittent low back pain. Assuming that this report constitutes evidence of continuity of symptomatology, there is still no evidence of a nexus between the continuity of symptomatology and lumbar disc disease. No doctor has opined that low back pain possibly associated with pregnancy in 1986 resulted in degenerative disc disease presently, or that the degenerative disc disease is related to intermittent low back pain reported by the veteran. Accordingly, the claim for service connection for residuals of a low back injury is not well grounded and must be denied. ORDER Service connection for residuals of a low back injury is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals