BVA9505995 DOCKET NO. 93-13 780 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for residuals of a fractured spine secondary to the veteran’s service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD William Harryman, Counsel INTRODUCTION The veteran had active service from August 1951 to June 1952. This case came before the Board of Veterans’ Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, in February 1992 which denied the claimed benefits. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the veteran that he sustained a fracture of his spine in an automobile accident in February 1977 which occurred as the result of an insulin reaction. It is contended that, since the insulin was taken in treatment for his service-connected diabetes mellitus, the residuals of the fracture should be service connected as well. 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 service connection for residuals of a fractured spine is not established. FINDINGS OF FACT 1. Service connection for diabetes mellitus has been in effect since 1975, and the disorder has been evaluated as 60 percent disabling since that time. 2. Residuals of a fractured spine are not shown to have been caused by the veteran’s service-connected diabetes mellitus. CONCLUSION OF LAW Residuals of a fractured spine are not proximately due to or the result of the veteran’s service-connected diabetes mellitus. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board finds that the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded; that is, the claim is not implausible. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Additionally, there is no indication that there are additional, pertinent records which have not been obtained. Accordingly, there is no further duty to assist the veteran in developing the claim, as mandated by 38 U.S.C.A. § 5107(a). Factual background It appears that the veteran’s original claims folder has been lost, but has been reconstructed. The record reflects that service connection for diabetes mellitus has been in effect, and has been rated 60 percent disabling, since 1975. The veteran does not contend that the claimed residuals of a fractured spine are in any way related to service. He claims only that they resulted from an incident in February 1977 at which time, while driving his car, he developed an insulin reaction. In his Report of Accidental Injury submitted in July 1991, the veteran made the following statement: Had diabetic reaction, and had eased off shoulder of road and stopped. Patrolmen were called and they drove up, walked to car, opened my drivers side, reached in, jerked me out, slammed me up against car, and then to the ground. Hauled me to hospital for blood test for alcohol and doctor had to give me glucose to bring me to and I told them my back hurt and patrolman said I might have strained it when they wrestled me down but went to Ft. Meade, next day and found out it was broke. A private emergency room (ER) record dated in February 1977 indicates that the veteran was brought by a State Trooper to the ER in a semi-comatose state, apparently having a diabetic insulin reaction. He was noted to be quite combative and very confused. His blood sugar on arrival was 24, and he was given intravenous dextrose. The report states that the veteran recovered completely and left the ER, apparently on his own. The examiner recorded no comments about back complaints or any clinical findings whatsoever related to the veteran’s back. A VA outpatient note dated two days after the ER visit in February 1977 states that the veteran had had an insulin reaction and drove off the road, was arrested, was finally taken to a hospital, and was given intravenous glucose. The VA examiner indicated that the veteran complained of numbness of his thumbs from the handcuffs and a back injury when he was "thrown in back of police car." There was marked tenderness to palpation and muscle spasm from T12 to L3. All back movements were restricted by pain. Spinal X-rays reportedly showed a possible chip fracture of L2 which was not consistent in all views. A muscle relaxant was prescribed. Subsequent VA outpatient records characterize the back injury as a compression fracture of L2. They document continued symptomatology, but indicate that the veteran was recovering. A note by a VA orthopedist dated in July 1977 reports that the veteran was "doing well." He still occasionally had "a little aching in his back." The examiner indicated that the veteran wore a back brace and that he had discouraged the veteran from continuing, at least for the time being, his profession as a horseshoer. No further follow-up was felt to be necessary. VA outpatient records dated from June 1981 to January 1986 document occasional clinic visits during which the veteran complained of low back pain. Those records indicate that a diagnosis of advanced arthritis of the spine had been assigned. Other than tenderness and complaints of chronic back pain, no abnormal symptoms or clinical findings relative to the veteran’s back were reported. He was seen on numerous occasions during 1989 because of chronic back pain. Findings included tenderness, flattened lumbar curve, and spasticity of the paraspinous muscles. The veteran was hospitalized at a VA facility in May 1989, apparently for evaluation of worsening back pain. It was noted that he used a crutch for ambulation because of back pain and weakness in his right leg. Examination revealed pain on raising either leg, and bilateral lower leg numbness. The remainder of the examination was reportedly unremarkable. A myelogram done in September 1989 reportedly showed findings of degenerative disc disease and bulging at L3-4 and L4-5 with central spinal stenosis at those levels, more marked at L3-4. There were also fairly wide-spread degenerative changes of the facet joints, most notably at L5-S1. In addition, X-rays reportedly showed narrowing of the intervertebral foramina of L4- 5 and L5-S1, bilaterally, and L3-4 on the left, secondary to adjacent degenerative changes; an old mild compression fracture of L2; and wide-spread hypertrophic spondylosis. The veteran was again hospitalized at a VA facility in October 1989. The examiner noted the veteran’s history of having "supposedly" broken his back when he was thrown to the ground in 1977. It was also noted that the veteran had felt intense pain in his back in May 1988 when he bent over to pick up a bucket of water. The veteran reported having paresthesias in both legs and also numbness of both legs since "that time." During that hospitalization, an L4 decompression laminectomy was performed. From an orthopedic point of view, the veteran’s postoperative recovery was satisfactory. At the time of discharge, he was ambulating well with crutches, and had no lower extremity paresthesias. A March 1990 outpatient note indicates that the veteran complained of back stiffness and of difficulty getting up. He stated, however, that his symptoms were much better than preoperatively. A VA compensation examination was conducted in January 1991. At that time the veteran stated that [t]he discs that were operated on is the same place my back was broke in ‘77 when I had a reaction and run off the highway when patrolman broke my back and that is where all my problems have developed. The examiner’s report notes the veteran’s statement that he was in a car accident in 1977 because of an insulin reaction. The examiner also indicated that the veteran said that the highway patrolman dragged him out of the car and broke his back and that he had had trouble with his back ever since. On examination, there was some tenderness over the lumbar spine, where there was a well-healed laminectomy incisional scar. Straight leg raise testing was negative. Motor function was found to be 5/5 bilaterally, and sensory function was intact in both legs. Trace knee jerks were elicited. The examiner commented that it was possible that the trauma of the car accident in 1977 contributed to the degenerative changes in the veteran’s back. He stated that if, indeed, the car accident was caused by the insulin reaction, then there is perhaps some relation of the veteran’s diabetes to his back problem. However, the examiner added that in view of the veteran’s past lifestyle-breaking horses, riding broncs, etc.-"it may be difficult to lay all of his troubles to that one incident." In September 1991 the veteran was seen in the VA orthopedic clinic for follow-up evaluation. His back was described as "pretty good," and it was noted that he did not want treatment at the time. Analysis Disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310(a). In his substantive appeal, the veteran stated, referring to the 1977 incident, that he blacked out while driving his car, had an insulin reaction, and hurt his back "when this happened." The veteran’s local representative advanced a lengthy argument in May 1993 in support of the veteran’s claim. The representative referred to the veteran’s back injury having been "involved in an automobile crash." He then offered a discussion of legal principles concerning "causation," basically concluding that the veteran’s back injury was proximately caused by his diabetes mellitus. Although the Board acknowledges the representative’s legal reasoning regarding causation, we must point out that his argument is based on an inaccurate factual premise. There is no evidence, other than statements made by the veteran and his representative, that there was an "automobile crash" in February 1977 or that his back injury was proximately caused by his service-connected diabetes. The Board attaches great probative weight to two items of evidence: the February 1977 ER record and the veteran’s Report of Accidental Injury submitted in conjunction with his current claim in July 1991. The ER record makes no mention of any back complaints (despite the veteran’s later statement that he expressed complaints of back pain when he "came to" in the hospital), statements from the state patrolman regarding back complaints, or any clinical findings relative to the veteran’s back. It also indicates that the veteran recovered completely and left on his own. Such medical evidence, compiled at the time of the purported "back injury" and in connection with treatment rendered at the time, carries considerable significance. In addition, the veteran’s own statement in July 1991 contradicts his and his representative’s later claim that the back injury was the result of a car "crash." The statement specifically notes that, after having a diabetic reaction, the veteran had "eased" off the shoulder of the road and stopped. This does not in any way connote a car "crash." Nor is there is there any contemporaneous evidence of a car crash. While the veteran apparently did have a diabetic insulin reaction, his own statement was to the effect that he was able to bring his car to a stop in a non-violent manner. Thus, there was no documented "accident" to which the Board might attribute the veteran’s back injury. Further, the veteran’s inconsistent account of the incident at issue in this case substantially reduces the credibility to be afforded any of his statements. Moreover, the veteran has on a number of occasions indicated that he was "thrown" against the car, to the ground, and into the patrol car by the state patrolmen. Such activity, even if it did result in his lumbar spine compression fracture, cannot be held to be a proximate result of the veteran’s diabetes. This was an intercurrent event which severed the chain of causation with respect to the insulin reaction which apparently caused the veteran to pull off the road. There is no clinical evidence of any back complaints or abnormal clinical findings until two days after the incident in February 1977. The Board recognizes that the apparently did sustain a compression fracture during the same basic time frame as the incident in his car. However, in the absence of evidence showing that the fracture was proximately due to or the result of the veteran’s diabetes, service connection cannot be established. The Board agrees that, if the veteran had sustained a back injury as a result of an automobile accident in February 1977, and if the accident and injury were directly due to an insulin reaction, then a causal relationship permitting service connection would be established. In this case, however, there is no objective evidence that the February 1977 incident involved an automobile accident or that any back injury in February 1977 was caused "proximately" by the veteran’s diabetes. Moreover, in answer to the argument advanced by the veteran’s representative, if the spinal fracture resulted from violent treatment by the patrolmen which has been alleged by the veteran, then that event was its proximate cause, not the diabetes. In addition, there is no evidence whatsoever, and the veteran has not contended, that his current back disorder resulted from his diabetes in any manner other than the February 1977 incident. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In this case, the Board finds that the preponderance of the evidence is against the veteran’s claim. Accordingly, service connection for a back disorder as secondary to the veteran’s service-connected diabetes mellitus is not established. ORDER Service connection for residuals of a fractured spine secondary to the veteran’s service-connected diabetes mellitus is denied. D. C. SPICKLER 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.