Citation Nr: 0006010 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 96-18 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Marshall O. Potter, Jr., Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nicholas M. Auricchio, Associate Counsel INTRODUCTION The veteran served on active duty from June 1970 to December 1971. This appeal arose from a February 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which in pertinent part, denied the veteran's claim of entitlement to service connection for a back disorder. A May 1997 Board decision found that the claim was not well grounded, and the appellant appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In July 1998, the Court vacated the Board's decision and remanded the claim to the Board pursuant to a joint motion for remand. Subsequent to the Court's order the issue of entitlement to service connection for a skin disorder was withdrawn In response to the joint motion for remand, the BVA, in a December 1998 decision, remanded the case for further development, and following accomplishment of the requested development, the case was returned to the Board for appellate review. FINDING OF FACT A chronic back disorder was not demonstrated during the veteran's military service, and the preponderance of the evidence is against finding a link between any current back disability and such service. CONCLUSION OF LAW A back disorder was not incurred or aggravated in active service, and arthritis of the spine may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background Service medical records show that the veteran, in June 1970, complained of having a cold, and suffering from back pain. A pertinent diagnosis was not made. On September 2, 1970, the veteran sought treatment for pain over the coccyx that was "chronic and recurring". Although no pertinent diagnosis was made at that time, he was dispatched to the orthopedic clinic for further evaluation. An orthopedic examination was requested on September 3, 1970 and, on September 10, 1970, the veteran was seen by the orthopedic clinic for his complaint of pain over the coccyx. At that time, the veteran reported a history of recurrent low back pain with lifting or running. He revealed that he had fallen on his back while roller-skating about one year prior to this examination. Physical examination revealed no objective findings, and no pertinent diagnosis was made with respect to the veteran's symptom of "chronic and recurring" coccygeal pain. In an April 1971 treatment record, the veteran was reported to have been a passenger on a motor bike that was struck from the rear by a car. Although pain was reported in the right calf, there were no findings or complaints with respect to the veteran's back. The impression was soft tissue injury. In another treatment record from April 1971, the veteran complained of right leg and low back pain as a residual of a motor vehicle accident. However, no pertinent diagnosis was made. An April 1971 clinical record cover sheet reports a diagnosis of a right leg soft tissue injury. Later, in October 1971, the veteran reported complaints of lumbosacral muscle pain since a football game over the prior weekend. Physical examination resulted in a diagnosis of a contusion of the back. An October 1971 Certificate for Return to School or Work indicated that the veteran could return to base with medication for pain. The remainder of the service medical records are negative for any findings, treatment, or diagnosis of a back disorder. Post service the record shows that the veteran was seen for a VA compensation examination in January 1995. He reported a history of injuring his back while in basic training, while assembling lockers, and as the result of a motorcycle accident. An X-ray study of the dorsal spine was notable for minimal spondylosis. Physical examination resulted in diagnoses of a mid back chronic sprain, and low back pain, sprain of chronic nature. In an October 1998 private examination report from Agustus L. Guerrero, M.D., the veteran complained of mid and low back pain along with "sparks of sharp pain" down to both legs and arms and some occasional numbness to the toes and hands. The veteran attributed this pain to injuries that were incurred during basic training for the Army. He stated that he served in the US Army from June 1970 to December 1971. He recounted that he was dangling on crossbars when he fell and landed on his back on sand. Additionally, while in the service, the veteran recalled that he was a passenger on a motorbike that rear-ended a car in front of him. He stated that they were "flipped into the air" and he landed on the ground with his friend and the bike landed on top of them. He indicated that this accident resulted in extreme pain to the lower back and numbness to both legs. Physical examination resulted in a diagnosis of chronic low back pain syndrome. The veteran stated that his initial back injury occurred while in basic training in 1970 and, since then, he had back problems. Dr. Guerrero indicated that he looked at the veteran's previous medical records and they did not show any bone pathology or injury. He stated that at the most, the veteran may have injured the soft tissue of his back, which would include the muscles and ligaments. The examiner opined that this may not have healed properly, but at the same time, he noted that the veteran was not in a formal physical therapy program, nor was he following a regular exercise routine that could have addressed the secondary complications from a back strain. He stated that secondary complications would include shortening and deconditioning of the deep and superficial back muscles. He concluded that there was a reasonable probability that there was a direct causal relationship between the veteran's current back disorder and the injury in 1970 in the military service. A May 1999 brain and spinal cord examination revealed no spinal stenosis or ongoing radiculopathy or other manifestations of a neurologic disorder. On VA spine examination in May 1999, the veteran was reported to have a history of injuring himself three times in the service. In the first instance, during basic training, he was undergoing physical training with cross bars when he lost his grip and fell four feet into a sandpit. The pain was reported to have lasted 20 minutes that he subsequently recovered from. The second time he injured himself was when he was lifting some object and had some pain. The third time he injured himself was when he sustained a back injury playing football. The veteran also was reported to have injured himself when he was hit from behind while riding a motorcycle and the driver fell on the veteran's chest, but not his back. An X-ray study of the lumbosacral spine revealed degenerative changes of the L5-S1 joints bilaterally and mild osteoarthritis. A computed tomography scan of the lumbar spine revealed mild degenerative changes and no evidence of either disc herniation or significant nerve root impingement. The examiner stated that given the facts that most human beings have an episode of back pain and are erect, the back strained-pulled muscle is a very common condition at any time in human existence. The examiner indicated that during the veteran's service tenure all three of his injuries that he suffered showed no fracture, dislocation, compression fracture, spondylolisthesis or facet function disease. He also indicated that the summation by other physicians noted that most of the veteran's symptoms were of a muscular nature, and not due to a prolapsed disk, compression of the nerve root or spinal stenosis. The examiner opined that, while the veteran had symptoms of muscle spasm, the minor injuries that he suffered in the service neither prevented him from being gainfully employed nor prevented him from working at the present time. He further opined that the nature of the injury was such that his present condition, which was one of loss of range of motion with radiculopathy, indicated that his condition in service was not the major contributing factor to his back pain. A June 1999 electromyograph report revealed no evidence of lumbar radiculopathy. In an August 1999 VA addendum, the examiner who conducted the May 1999 VA spine examination indicated that, with reference to Dr. Guerrero's notes, there was essentially no conflict between the opinions expressed by him in his May 1999 VA examination report and those of Dr. Guerrero. He stated that the veteran may have had an episode of back pain, but whether this caused the present disorder, and therefore led to his subsequent low back pain syndrome, was within the possibility of a soft tissue injury. The VA examiner took issue, however, with the possibility of permanent damage as a result of some minor back muscle injuries/spasm that the veteran may have incurred while in the service. He elaborated that his prior opinion expressing that the muscles were moderately well developed was based on the clinical findings and clinical examination. The VA examiner stated that there was no significant muscle wasting of the paravertebral muscles or the soft tissues of his back when examined. The fact that the veteran led a sedentary lifestyle and gained considerable weight were judged to be contributing factors to his back problems. In this respect, the examiner indicated that the veteran had a large protuberant abdomen that caused great stress discomfort in general and also back stress. The large protuberant abdomen also caused weakness of his back muscles. The VA examiner elaborated that no neurological deficit was seen in the lower extremities. He stated that muscle spasms were secondary to a pulled muscle, partial ruptures, tears of the muscle that occur from time to time from twisting, lifting or moving in a certain fashion. He indicated that these were not permanent conditions and muscle spasms were generally not a neurologic deficit. In reviewing the chart, the VA examiner stated that the nature of the injuries that the veteran suffered was of a minor nature, and that Dr. Guerrero was entitled to his opinion that his present symptoms of obesity and back pain were service-connected. However, the VA examiner was of the opinion that the veteran's muscle spasms were of a minor nature, and that his present back pain was the result of his obesity, sedentary lifestyle, lack of exercise and his weight gain. Therefore, it was the VA examiner's opinion that the injuries suffered were not service-connectable. He further elaborated that there was no specific diagnosis, such as spinal stenosis and compression of the neurocanal from fragments of a prolapsed disk. Indeed, the veteran did not have a prolapsed disk based on examination and review of his file. His specific diagnosis was mechanical back pain syndrome. In conclusion, the VA examiner stated that, although it was true that the veteran suffered a minor injury to the coccyx, given the fact that most people in their working life would have an episode of back pain, a pulled muscle, or a fall, these do not ultimately lead to serious disk disease, spinal stenosis or compression of the nerve roots. The VA examiner saw no cause and effect relationship. The current diagnosis was believed to be obesity and the subjective finding of pain. There was no ongoing radiculopathy. He stated that the evidence would indicate that the veteran did not have three of the four most serious lesions that were spinal stenosis, nerve root compression, and disk protrusion as the cause of his back pain. The X-ray study showed no evidence of spondylolisthesis or even spondylosis. Given all of these findings, he continued to hold to the opinion that the muscle spasm and the fall on his coccyx were unrelated to his present medical condition and that, furthermore, it was speculative to state that his present condition was related directly to the problems that he had while in the service. Analysis The veteran has presented a well-grounded claim, that is, a claim that is plausible, as required by 38 U.S.C.A. § 5107(a). VA, in turn, has assisted him in fully developing the facts relevant to his claim as required by 38 U.S.C.A. § 5107(a). Service connection may be granted for a disability resulting from disease or injury incurred or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Additionally, if a condition noted during service is not determined to be chronic, then generally a continuity of symptomatology after service is required for service connection. Id. Further, arthritis may be presumed to have been incurred during service if it becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Based on a careful review of the record, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a back disorder. As preliminary matter, the Board observes that the service medical records show that the veteran originally complained of back pain in June 1970, but no pertinent diagnosis was made. Moreover, while the veteran in September 1970 sought treatment for "chronic and recurring" pain over the coccyx, an orthopedic examination again revealed no objective findings, and no pertinent diagnosis was made. Hence, the Board concludes that no back disability was shown in service. In this regard, it must be noted that the United States Court of Appeals for Veterans Claims (Court) has held that "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). The Board further observes that the veteran last reported back pain in the service in an October 1971 treatment record. At that time, he reported complaints of lumbosacral muscle pain since a football game over the prior weekend. The physical examination resulted only in a diagnosis of back contusion. However, the preponderance of the evidence does not show that an inservice back contusion resulted in chronic residuals. In this regard, post-service, the record reflects no subsequent diagnosis of any back disorder, to include back contusion residuals, until a VA examination in January 1995, approximately twenty three years after the veteran's separation from the service. Hence, continuity of symptomatology for the veteran's back disorder may be legitimately questioned. In considering the January 1995 VA examination, while the examiner diagnosed mid back chronic sprain, and low back pain, sprain of chronic nature, he did not relate these disabilities to the veteran's period of service. Moreover, although Dr. Guerrero, in his October 1998 private examination report, concluded that there was a reasonable probability that there was a direct causal relationship between the veteran's current back disorder of chronic low back pain syndrome and the injury in 1970 in the military service, the Board finds that his opinions lack sufficient probative value. In this respect, Dr. Guerrero, himself, indicated in his October 1998 examination report, that since the veteran's reported initial back injury in the service, his review of the medical records revealed "no bone pathology or injury." He stated that, at the most, the veteran "may" have injured the soft tissue of his back, which would include the muscles and ligaments. Dr. Guerrero also indicated that this "may" not have healed properly. Further, although Dr. Guerrero stated that secondary complications would include shortening and deconditioning of the deep and superficial back muscles, he made no specific findings regarding the veteran's back disorder. Instead, he only offered a diagnosis of chronic low back pain syndrome, which cannot be considered a clear diagnosis as it only refers to the symptom of pain and is not supported by any specific findings. Additionally, it is well to note that the contemporaneously created service medical records do not support the medical history recited by Dr. Guerrero. For example, there is no evidence that the veteran was "flipped into the air" following a motor vehicle accident, or that he ever needed crutches for any reason inservice. Hence, as the history relied upon is not credible, any opinion offered based on this faulty history is of questionable probative value. See Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guimond v. Brown, 6 Vet. App. 69 (1993). (The Board is not bound to accept medical opinions which are based on history supplied by the veteran where that history is unsupported by the medical evidence.) In contrast to Dr. Guerrero's examination report, the May and August 1999 VA examiner's findings and opinions are of greater probative value. In this respect, in May 1999 the VA examiner indicated that after reviewing the medical records that the three injuries the veteran suffered during his service tenure were not manifested by fracture, dislocation, spondylolisthesis or facet function disease. He also reviewed the medical findings of other physicians and determined that they found that most of the veteran's symptoms were of a muscular nature, and not due to a prolapsed disk, compression of the nerve root or spinal stenosis. In an August 1999 VA addendum, the examiner stated that the veteran may have had an episode of back pain (in service), and that it was "possible" that this caused a low back pain syndrome. However, the VA examiner took issue with Dr. Guerrero with respect to the possibility of permanent damage as a result of some minor back muscle injuries/spasm that the veteran may have incurred while in the service. He elaborated that his opinion expressing that the veteran's muscles were moderately well developed was based on the clinical findings and examination. The VA examiner stated that there was no significant muscle wasting of the paravertebral muscles or the soft tissues of the back when examined. The fact that the veteran led a sedentary lifestyle and gained considerable weight were contributing factors to his back problems. Indeed, the examiner stated that the veteran had a large protuberant abdomen which caused great stress, discomfort in general, stress on his back, and weakness of his back muscles. The VA examiner also stated that there was no neurological deficit seen in the lower extremities. He stated that muscle spasms were secondary to a pulled muscle, partial raptures, and muscle tears that occur from time to time from twisting, lifting or moving in a certain fashion. However, he indicated that these were not permanent disorders and a muscle spasm was generally not a neurologic deficit. Moreover, he opined that the nature of the veteran's injuries in the service were of a minor nature, his current muscle spasms were of a minor nature, and his present back pain was the result of his obesity, sedentary lifestyle, lack of exercise and weight gain. Therefore, it was the VA examiner's opinion that that the veteran's muscle spasm and the fall on his coccyx were unrelated to his present medical condition and that it was speculative to state that his present condition was related directly to the problems he had in service. In summary, the preponderance of the evidence is against a finding that the veteran incurred a chronic back disorder during service or that compensably disabling arthritis developed within the one year presumptive period See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Further, as the veteran was not diagnosed with a chronic back disorder until January 1995, decades after his separation from the service, a continuity of symptomatology is not established by the medical evidence of record. See 38 C.F.R. § 3.303(b); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). As such, service connection for a back disorder is denied. In reaching this decision, the Board has considered the representative's contention that because the veteran's claim is well-grounded, VA is required, under 38 U.S.C.A. § 5107(a), to ascertain from the January 1995 VA examiner whether the veteran's back disorder was related to service. A review of statutory and case law reveals no support for such an assertion. Still, to the extent that such a requirement to ascertain the etiology of a disorder exists the requirement was fulfilled when the RO scheduled a VA examination in 1999. In that opinion, and in a subsequent addendum, the examiner provided a detailed opinion as to whether the veteran's current back disorder is related to service. 38 U.S.C.A. § 5107(a). The representative also contends that a July 1999 VA memorandum, submitted to the 1999 VA examiner, contained questions that resulted in impartial opinions. However, it is apparent to the Board that such is not the case. In this regard, the questions submitted to the 1999 VA examiner did not suggest the answers, but rather were unmistakably meant to clarify whether the veteran's back disorder was related to service in light of all of the evidence of record. Further, a review of the VA examiner's responses to those questions, in the August 1999 VA addendum, indicates that his independent medical judgment was not undermined. Therefore, the Board concludes that the opinions contained in the August 1999 VA addendum were procured in an impartial, unbiased and neutral manner. See Austin v. Brown, 6 Vet. App. 547 (1994). Further, the 1999 VA examiner reviewed the veteran's claims file and evaluated the veteran's subjective and objective symptoms in his May 1999 VA examination report. Hence, the 1999 VA examiner was aware of the veteran's objective and subjective symptoms when he considered, and then answered, the questions in the July 1999 VA memorandum. See Bielby v. Brown, 7 Vet. App. 260, 268 (1994). With respect to the challenge of the qualifications of the VA examiner the Board notes that both physicians are qualified to offer an pinion as to the etiology of the back disorder. The VA examiner's opinion is assigned greater probative value, however, because the examiner was provided the entire claims folder; because the VA examiner explained in detail why his opinion differed from that of Dr. Guerrero; and because the examiner discussed factors not even acknowledged by Dr. Guerrero (e.g., the appellant's sedentary lifestyle, weight gain, the effect of a protuberant abdomen, etc.) in reaching his conclusion. Simply put, the VA examiner's opinion more carefully analyzes all of the evidence of record, and hence, it warrants greater consideration. The Board has also considered the lay statements offered in support of the claim. In this respect, the Board acknowledges that the veteran and other lay witnesses assert that the appellant's back disorder restricts his activities, that he has self-medicated his disorder with alcohol, and that he has had consistent pain. While the veteran and other lay affiants are competent to provide an account of symptoms during and after service, these statements are not proffered by trained medical personnel. Hence, these statements are not competent evidence of a medical link between his back disorder and any incident during service. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992) (a claimant, as a lay person, has no competence to offer an opinion as to a medical diagnosis or as to the cause of disability). The Board also observes that subsequent to the claims file having been certified to the BVA, statements from the veteran's representative were received in January 2000. Although the appellant and his representative were not notified of this evidence in a supplemental statement of the case prior to the Board's decision no further development is in order because it adds nothing to the question whether a back disorder was incurred or aggravated in service. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Moreover, as the evidence was proffered by the appellant and his representative they are presumed to know its content. Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a back disorder is denied. DEREK R. BROWN Member, Board of Veterans' Appeals