Citation Nr: 0005233 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 96-22 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Cryan, Associate Counsel INTRODUCTION The veteran had active service from January 1991 to July 1995 plus over four months of prior National Guard service from July to November 1989. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 1996 rating decision by the Wilmington, Delaware Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for a back disability and a left hip disability. The veteran timely appealed both determinations to the Board. Although she was scheduled to attend a Board hearing in August 1998, she withdrew her request for such hearing. The Board remanded the case back to the RO in September 1998 for further development. The RO thereafter granted entitlement to service connection for a left hip disability and assigned a 10 percent rating to that disability. As the veteran has not appealed the rating or effective date assigned for the right hip disability, the only issue remaining in appellate status is entitlement to service connection for a low back disability. FINDING OF FACT Although there is no medical opinion specifically establishing a nexus between a current back disability in service, the veteran had several back injuries in service, and received diagnoses of chronic lumbosacral strain/sprain shortly after discharge; she has complained of experiencing continuing pain since service. CONCLUSION OF LAW With resolution of all reasonable doubt in the veteran's favor, chronic lumbosacral strain/sprain was incurred during service. 38 U.S.C.A.. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by a veteran's active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (1999). The veteran contends that her low back strain is a result of a back injury incurred during service, and is in no way associated with her diagnosed scoliosis. However, since the veteran has not been shown to be capable of making medical conclusions, her statements regarding causation are not probative. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Rather, the medical record must support her statements. As such, the Board will review the medical evidence in order to determine if the veteran's contentions are meritorious. Although the veteran acknowledges, in connection with her claim for benefits, that she was diagnosed with scoliosis during childhood, she contends that she has never had low back pain associated with her scoliosis. The service medical records reveal a diagnosis of scoliosis in August 1991. Those records also reflect that the veteran was treated for complaints of low back pain throughout service. Specifically, the veteran was treated for painful tailbone after falling to the ground from a table in September 1991. In addition, the veteran was also treated for complaints of back pain in January 1993. Finally, the service medical records show that the veteran suffered an injury to her back when she fell during service in April 1995, and that she sought treatment for low back pain up through her discharge from service in July 1995. Although the veteran's separation examination includes a notation of scoliosis of the lumbar spine, no chronic disability was noted. The veteran filed a claim for service connection for, inter alia, back disability in July 1995, the same month as her discharge from service. In conjunction with the claim for benefits, the veteran was afforded VA examinations in September and October 1995. In September 1995, the veteran complained of recurrent backaches, increased with physical activity, but denied shooting pain down her legs. On physical examination, the veteran had full range of motion. Specifically, at the lumbosacral spine flexion was to 90 degrees, backward extension was to 35 degrees, right and left lateral flexion was to 20 degrees, and right and left rotation was to 35 degrees. Mild palpable tenderness in the L5-S1 midline area was noted especially on flexion at the lumbosacral spine. Chronic low back strain was diagnosed. X-rays showed scoliosis of the lumbar spine with convexity to the right. The joint space appeared normal. The pedicles were intact, and there was no evidence of spondylolisthesis. Impression was mild scoliosis of the spine. During the October 1995 examination, the veteran complained of low back pain once or twice per week. Examination of the thoracolumbar spine revealed that the veteran was mildly tender at the lumbosacral junction. Mild kyphoscoliosis with moderate exaggerated lumbar lordosis was noted. The veteran could forward flex to 80 degrees as measured with the inclinometer, however 35 degrees of that motion was in the sacrum resulting in 45 degrees of true lumbar flexion, 25 degrees of hyper-extension, and 20 degrees of lateral bending. The diagnosis was chronic lumbar strain and sprain with disc pathology to be ruled out. An October 1995 computerized tomography scan of the lumbar spine showed scoliosis of the spine. The impression was suggestion of mild diffuse spinal canal stenosis; no evidence of herniated disc; mild facet joint arthropathy on the right side at L3-L4 level, and L5-S1 level. In January 1996, the RO denied the veteran's claim for service connection for a back disability. The RO reasoned that the medical evidence showed a low back condition existed prior to service, and that there was no evidence that the condition permanently worsened as a result of service. The veteran timely appealed that decision. The Board remanded the case back to the RO for further development in September 1998. The Board requested that the RO schedule the veteran for another VA examination and obtain any available outpatient treatment records not already associated with the file. The veteran did not report for her scheduled VA examination. The veteran telephoned the RO in November 1998 to report her new address in Germany where she currently lived with her husband. A copy of the aforementioned October 1995 computerized tomography scan was added to the file pursuant to the remand, but no outpatient treatment records, VA or private, were located. The veteran does not contend, and the evidence does not suggest, that her scoliosis, noted within seven months after her induction, underwent a permanent increase in severity during service. See 38 U.S.C.A. §§ 1111, 1137, 1153 (West 1991); 38 C.F.R. § 3.306 (1999). Rather, the appellant appears to contend that the back pain experienced in service was not associated with scoliosis, but with a back condition resulting from her in-service injuries. The Board acknowledges that there is no specific medical evidence of a nexus between any incident of active military service, to include the low back injuries suffered therein, and the chronic lumbosacral strain/sprain diagnosed post service. . However, the record clearly establishes back injuries in service, and consistent complaints of and treatment for back pain up through her discharge in July 1995. Further, while scoliosis was noted in service, and a shoe lift was provided in August 1991 for marked shortening of the leg due to scoliosis, her complaints of back pain during service appear to be associated with injury, rather than scoliosis. Further, a the initial diagnosis of chronic lumbosacral strain was rendered in September 1995, two short months after separation from service, and the veteran has credibly asserted continuing to experience back pain since service. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.102 (1999). In view of the foregoing, and with resolution of all reasonable doubt in the veteran's favor, the Board finds that service connection for chronic lumbosacral strain/sprain is warranted. ORDER Service connection for chronic lumbosacral strain/sprain is granted. JACQUELINE E. MONROE Member, Board of Veterans' Appeals