Citation Nr: 0005707 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 97-35 116 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a herniated nucleus pulposus at L5-S1 on the right. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Andrew E. Betourney, Associate Counsel INTRODUCTION The veteran served on active duty from March 1970 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the veteran's claim for service connection for a herniated nucleus pulposus at L5-S1 on the right. The veteran filed a timely appeal to this adverse determination. FINDINGS OF FACT 1. The veteran's herniated nucleus pulposus at L5-S1 on the right was clearly and unmistakably present prior to service. 2. The veteran has not presented competent evidence that his pre-existing herniated nucleus pulposus at L5-S1 on the right underwent a permanent increase in severity during service. CONCLUSION OF LAW The veteran's claim for service connection for herniated nucleus pulposus at L5-S1 on the right is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1999). Regulations provide that a pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); C.F.R. § 3.306(a) (1999). In deciding a claim based on aggravation, after having determined the presence of a pre-existing condition, the Board must first determine whether there has been any measured worsening of the disability during service and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Unless there is clear and unmistakable evidence to the contrary, the VA must presume that the veteran was in sound condition except as to those defects, infirmities, or disorders noted at the time of his or her entrance into service. 38 U.S.C.A. §§ 1131, 1132 (1999). The presumption of sound condition provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. This presumption attaches only where there has been as induction examination in which the later-complained-of disability was not detected. Where a report of service entrance examination is not of record, the Board must accord the veteran the presumption of soundness at service entry, absent clear and unmistakable evidence to the contrary. The term "noted" denotes only such conditions as are recorded in examination reports. A reported history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.304; Crowe v. Brown, 7 Vet. App. 238 (1994). However, the first step in this analysis is to determine whether the veteran has presented a well-grounded claim for service connection. In this regard, the veteran bears the burden of submitting sufficient evidence to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). Simply stated, a well-grounded claim must be plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Where the determinative issue involves medical etiology or a medical diagnosis, competent medical evidence that a claim is "plausible" or "possible" is required for the claim to be well grounded. See Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit, supra. This burden may not be met merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. See Epps, supra; Grottveit, supra, Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Service connection generally requires: (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. In cases involving aggravation of a preexisting disability, competent evidence that the disability was aggravated by service is required in order to well ground the claim. See Epps, supra; see also Heuer and Grottveit, both supra. Savage v. Gober, 10 Vet. App. 488, 497 (1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In addition, as with all claims for service connection, the nexus requirement also applies. That is, in cases of claimed inservice aggravation, there must be competent evidence of a nexus between a current disorder and the inservice aggravation of that disorder. Gonzales v. West, No. 95-1218 (U.S. Vet. App. Jan. 20, 1998) (citing Caluza, supra). In the absence of evidence of a well-grounded claim, there is no duty to assist the claimant in developing the facts pertinent to the claim, and the claim must fail. Gregory v. Brown, 8 Vet. App. 563, 568 (1996) (en banc); Slater v. Brown, 9 Vet. App. 240, 243 (1996); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Grottveit, supra. A review of the veteran's service medical records reveals that at the time of the veteran's pre-induction medical examination in January 1970, his spine/other musculoskeletal system was found to be "normal," and no back disorders were noted. However, the Board finds that, despite the lack of a notation of a back disorder on this entrance examination, clear and unmistakable evidence exists which indicates that a back disorder existed prior to service. On April 14, 1970, two weeks after service entrance, the veteran was treated for complaints of low back pain. At that time, he reported that he had been in an automobile accident a few months prior to entering the Army and had experienced pain for three days at that time, but did not seek any medical treatment. No injury in service was reported. He had full range of motion and no spasm, but complained of back pain. No diagnosis was rendered at that time, but the examiner prescribed medication and recommended the use of heat pads and physical therapy. A few days later he was again seen at the dispensary with continuing complaints of low back pain, which had not been relieved by physical therapy. The examiner diagnosed low back pain of unknown etiology. Two days later the veteran again complained of low back pain, unrelieved by medications or physical therapy. Physical examination and X-rays taken at that time were reportedly negative. The examiner referred the veteran to orthopedics for further evaluation. Therefore, at the end of April 1970 the veteran was treated at the orthopedics clinic. At that time, the examiner stated that the veteran was in the second week of basic training, and had continuing complaints of low back pain. The veteran stated that he had "had low back pain since 1 year ago when he twisted it diving and worse since a car accident 2 months ago." Following an examination, the examiner diagnosed a mild herniation of disc L5-S1 on the right, and recommended a medical discharge. There was no reference to any injury in service. In late April 1970, the veteran underwent a Medical Board examination. At that time, he reported having experienced "low back pain since one year ago when he twisted his back in a diving accident. It has been worse, however, since he was in a car accident two months ago." The examiner noted that in private life, the veteran had worked as a cook, and when performing this job had felt slight discomfort but could get along most of the time. However, the veteran stated that his back had become quite a bit worse since coming on Basic Training. There was no reference to any injury in service. X-ray was reported to be normal. Following physical examination, the examiner diagnosed mild herniation of disc L5-S1 on the right, and again recommended a medical discharge. The report of Medical Board proceedings in April-May 1970, indicated that the veteran was disqualified for procurement due to mild herniation of disc L5-S1 on the right. This report further stated that this disorder was not incurred in the line of duty, and existed prior to service. It was also explicitly noted that this defect was not aggravated by active duty. The Board finds that, based on this evidence, the veteran's herniated disc at L5-S1 clearly and unmistakably existed prior to his entry into active duty, and is therefore not entitled to the presumption of soundness as to that disorder. See Paulson v. Brown, 7 Vet. App. 466, 468 (1995). It must next be determined whether the veteran's pre-existing back condition was aggravated by service. When a condition is properly found to have been pre-existing, either because it was noted at entry or because pre-existence was demonstrated by clear and unmistakable evidence, the presumption of aggravation provides that a pre-existing injury or disease will be considered aggravated by active service where there is an increase in the disability during such service, unless there is a specific finding that the increases in the disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Crowe v. Brown, 7 Vet. App. 238 (1994). A temporary worsening of symptoms of a disability subject to exacerbation is not indicative of an increase in the severity of the underlying disability. Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Relevant post-service evidence includes treatment records dated from May 1970 to November 1987 from St. John's Hospital, a private health care facility. These records indicate that in May 1970, the veteran was treated for complaints of pain in the low back and right leg. The veteran reported that his low back pain had been present "for a year." He stated that he developed his current complaint while in the service, and was discharged because of it. He made no reference to an actual injury in service. Following examination, the examiner diagnosed probable herniated intervertebral disc L4-L5 on the right, and ordered myelography. However, a lumbar myelogram revealed no myelographic deformities in the lumbar region, and x-rays of the lumbosacral spine showed well-maintained vertebral body height, alignment, and interspacing, with no congenital defects, fractures, or bone destruction. In May 1997, the veteran underwent a VA spine examination. At that time, the veteran reported that he was injured during basic training lifting telephone poles. He stated that several days later he could not even get up, and was hospitalized for several days for a possible herniated disc and spinal shock. He was subsequently medically discharged. The examiner noted that as he did not have the veteran's claims file, he had only the veteran's history to base his assessment upon. The final diagnosis was status post lumbar sacral strain, possible disc herniation, with chronic intermittent pain, normal function of the spine preserved. The Board notes that x-rays taken later that day revealed Schmorl's nodes at the interspace between L4 and L5 and between L5 and S1, with marked asymmetry of the articular facets between L3 and L4 and L4 and L5. The examiner diagnosed osteoarthritis of the lumbar spine. The Board finds that these records provide no evidence that the veteran's pre-existing herniated nucleus pulposus at L5- S1 on the right increased in severity in any permanent manner during service. The Board notes that although the veteran has asserted that he injured his back in service while lifting a telephone pole out of a pool, a thorough review of the medical records from the veteran's short period of service do not indicate any complaints or reports of this incident. On the contrary, when asked about the history of his present back pain, the veteran consistently reported that his back had hurt ever since his diving accident 1 year earlier, and was worsened by a car accident just prior to entering service. No mention was made of the telephone pole incident in any of the medical records from service. In addition, to the extent that his pre-existing herniated disc disorder became temporarily symptomatic following this strenuous activity, temporary flare-ups are not sufficient to be considered aggravation in service. See Hunt v. Derwinski, 1 Vet. App. 292, 197 (1991). No competent medical evidence has been presented to show that the veteran's pre-service back disorder increased in severity during service. In reaching this determination, the Board has considered the veteran's allegation, as set forth in a statement to VA dated in June 1997, that the physician who performed the May 1997 examination misunderstood him when he told him about his diving accident. The veteran stated that his diving accident occurred in 1972 or 1973, two to three years after discharge from service, at which time he was treated at the emergency room at St. John's Hospital. At that time, the veteran was told that he had punctured a hole in his ear, and that he lost his dogtags that day, so he remembered the event quite clearly. The veteran was quite emphatic in his belief that the examiner in May 1997 had incorrectly recorded the date, which the RO subsequently relied upon in wrongly denying his compensation claim. In addition the veteran contended that he told the doctor in service that the automobile accident occurred in 1962, when he was 12 years old. He stated that he did not have any problems with his back at that time, and did not seek treatment at the time because he only had a bruise on his right side which went away within one month. However, the Board notes that while the veteran may certainly have discussed the date of the diving accident with the examiner in May 1997, the examiner did not report any of this discussion in his examination report, and did not mention a diving accident. Therefore, it is clear that the RO based its determination as to the date of the diving accident solely on the information contained in the veteran's service medical records, which repeatedly recorded the veteran's consistent report that he had twisted his back in a diving accident one year earlier. Furthermore, regarding the veteran's claim that his diving accident occurred in 1972 or 1973, the Board recognizes the veteran's sincere belief in the merits of his claim, but the clinical records from service clearly contain a report of a pre-service injury while diving. In addition, the Board has considered the veteran's statements that he clearly remembered the diving accident as having occurred well after service because he punctured his eardrum at the time of that accident. However, the Board notes that the April 1970 Report of Medical History created at the time of his Medical Board clearly noted that the veteran had suffered a "perforated right tympanic membrane - diving injury - EPTS [existed prior to service]. Hearing loss right ear." Thus, it is clear from these medical records that the veteran's diving accident did indeed occur prior to his entry into service, as reported by the veteran himself in 1970. Furthermore, the Board notes that while the veteran claimed that he was treated at the emergency room at St. John's hospital in 1972 or 1973 following this diving accident, the Board notes that the RO requested the veteran's medical records from St. John's Hospital from "May 22, 1970 to June 1, 1990." The RO subsequently received records indicating treatment provided to the veteran at St. John's Hospital from May 1970 to November 1987. However, none of these records reflect that any treatment was provided to the veteran in either 1972 or 1973, nor do they indicate that treatment was provided following a diving accident at any time after service. Furthermore, regarding the veteran's contentions that his automobile accident occurred in 1962, many years before service, the Board again notes that numerous medical records dated in April 1970, while the veteran was in service, consistently and repeatedly recorded the veteran's report that he had injured his back in an automobile accident 2 months earlier, just prior to entering service in March 1970. To the extent that the veteran's present recollection, some 30 years after discharge, as to the date of the pre-service accident is inconsistent with his numerous reports recorded in 1970, the Board finds that the service medical reports are significantly more reliable and probative, as they were made much closer in time to the dated of the car accident in question. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. 3.306(a). This "presumption of aggravation" applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). In the instant case, as no actual increase in disability was shown during service and in the absence of competent medical evidence that the veteran's back disability was aggravated during service it is the decision of the Board that the veteran has failed to meet his initial burden of submitting evidence of a well-grounded claim for entitlement to service connection for a herniated nucleus pulposus at L5- S1 on the right, and the claim must be denied on that basis. As the duty to assist is not triggered here by the submission of a well-grounded claim, the Board finds that VA has no obligation to further develop the veteran's claim. See Epps, supra; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). In reaching this determination, the Board recognizes that this issue is being disposed of in a manner that differs from that employed by the RO. The RO denied the veteran's claim on the merits, while the Board has concluded that the claim is not well grounded. The Board has therefore considered whether the veteran has been given adequate notice to respond, and if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Since the Court has held that "when an RO does not specifically address the question whether a claim is well grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded-claim analysis," the Board finds no prejudice to the veteran in this case. Meyer v. Brown, 9 Vet. App. 425, 432 (1996). In addition, in reaching this determination the Board notes that it has not been made aware of any outstanding evidence which could serve to well ground his claim for service connection for a herniated nucleus pulposus at L5-S1 on the right. Accordingly, there is no further duty on the part of VA to inform the veteran of the evidence necessary to complete his application for this benefit. 38 U.S.C.A. § 5103 (West 1991); McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). ORDER Evidence of a well-grounded claim having not been submitted, service connection for a herniated nucleus pulposus at L5-S1 on the right is denied. STEVEN L. COHN Member, Board of Veterans' Appeals