BVA9500232 DOCKET NO. 93-21 439 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for residuals of a back injury, to include numbness of the legs. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. K. Mulroy, Associate Counsel INTRODUCTION The veteran had active duty from March 1960 to March 1964. He was originally denied service connection by the Nashville, Tennessee, Regional Office (hereinafter the RO), for lumbosacral strain and degenerative disc disease of the lumbosacral spine, in a decision dated in September 1992. The veteran appealed, and in a decision dated in December 1993, the Board of Veterans Appeals (hereinafter the Board) remanded the case for additional development. The veteran is represented by the Veterans of Foreign Wars of the United States. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he injured his back during service in 1960 when he slipped and fell down a flight of stairs, requiring hospitalization. He maintains that he had additional back problems in service after the initial injury. He alleges that his back has bothered him since service, although he treated it only with home remedies and did not seek treatment until 1989 after another back injury, sustained when he slipped on a plastic bag. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim of entitlement to service connection for residuals of a back injury, to include numbness of the legs. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. Residuals of a back injury are not shown to have had origins in service. CONCLUSION OF LAW Residuals of a back injury, to include degenerative disc disease, were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107. That is, the Board finds that the veteran has presented a claim that is plausible. The Board is satisfied that all reasonable efforts have been made in helping the veteran prove his claim. There is no indication of outstanding evidence, and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. In determining whether service connection is warranted, the Department of Veterans Affairs (hereinafter the VA) is responsible for determining 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; Gilbert v. Derwinski, 1 Vet.App. 49 (1991). Service connection may be established for disability resulting from 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. § 1131. Regulations also provide that service connection may 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). As previously noted, the veteran served from March 1960 to March 1964. In service medical records dated in May 1960, it was noted that the veteran was hospitalized and diagnosed with acute, therapeutic poisoning due to penicillin manifested by a rash, fever, and arthralgia, including left ankle and calf pain. There was no mention of back pain or treatment for back related problems. In a record dated in December 1960, it was noted that the veteran reported that he had strained his back twisting bolts off a fuel valve one week earlier, and had reportedly stepped into a hole since then, and was complaining of back pain. Upon examination, it was noted that there was mild tenderness of the right lower thoracic paraspinal muscles, that there was full range of motion, and that muscle strain was diagnosed. Later in December 1960, it was noted that the veteran continued to have trouble with his back, that there was no muscle spasm or spine tenderness, straight leg raises were positive at 66 to 70 degrees, bilaterally, and that the impression was back strain. The examiner also stated that he was unimpressed with the degree of disability, yet the veteran said the pain was bad enough to interfere with his work. Medication, light duty, and physical therapy were prescribed. In service records dated in early June 1962, it was noted that the veteran complained of backaches in the small of his back with occasional numbness of his right foot. He reported that symptoms developed a few hours after he helped someone get their car out of mud. It was noted that pain was located approximately at the level of L-4, and that there was no radiation. A few days later, it was noted that the veteran reported continuing numbness down the posterior aspect of his right thigh and calf, had difficulty raising his toes and with dorsiflexion, bilaterally. The examiner advised hospitalization for tests, but the veteran wished to do some personal matters first. A ruptured disc was suspected. A clinical record cover sheet dated in June 1962 indicated that he was hospitalized for 10 days for observation, with a determination of a suspect herniation, nucleus pulposus, but no tests results or other records were available, and a definitive diagnosis was not made. In a record dated in March 1963, it was noted that the veteran had a long history of back pain, and that he reported that he felt "something slip out" last night. The impression was a low back strain. His separation examination and history dated in February 1964 were silent regarding low back symptomatology or pathology . In a statement dated in August 1992, the veteran was reportedly treated by a private chiropractor after he slipped and fell on a plastic bag. The chiropractor noted that the veteran complained of lower back pain. He stated that x-rays had been interpreted as revealing generalized degenerative disc disease of the lumbar spine, and an old healed fracture of the sacrum. He stated that due to the generalized degeneration and the old fracture, he concluded that there had been a previous accident some time ago. Based on the x- ray evidence and the veteran's reports of a fall during service, and reportedly no occurrences of a fall or accident since service, the chiropractor concluded that although it would be difficult to say the fall during service was the "exacting" cause, it was "certainly a coincidental." The veteran has submitted several statements from friends and relatives who knew him prior to service, or met him after service, who attest to the fact that he had no back problems prior to service, and that he has had back problems since service. At a hearing before a traveling member of the Board, dated in September 1993, the veteran testified as to the history and the current condition of his back disorder. He stated that he originally injured his back when he slipped and fell down stairs in service in approximately 1960, that he received treatment on several other occasions in service, and that he has had back problems since service, but underwent home remedies until 1989, when he reinjured his back. He also stated that he had undergone coronary bypass surgery in the early 1990's, and had been unable to work since then. In a VA examination dated in January 1994, the physician noted that a magnetic imaging resonance was interpreted as revealing significant degenerative disc disease at L5-S1, and a herniated disc at L4-5, moderately severe, on the right. Upon examination, he noted that there was dramatic loss of motion in all planes, and positive straight leg raises and absent ankle jerks, bilaterally. He diagnosed degenerative disc disease, L5-S1, herniated nucleus pulposus, L4-5, right chronic, and a history of significant cardiovascular disease. In a supplemental statement to the VA examination dated in May 1994, the physician stated that the alleged fracture from 1960 would have healed and probably have been remolded unless it had been a dramatic fracture of the sacrum, and he saw no evidence of a sacral fracture. He reviewed the file, and stated that records from the May 1960 hospitalization made no mention of a fall or a fracture of the sacrum. He stated that there were several other visits for a back condition, all of which were very temporary. He stated that it was his opinion that the veteran's degenerative disc disease was not service related, and he saw no information in the chart which indicated that he had a significant back injury that would have developed into L5-S1 degenerative disc disease of a significant degree. Degenerative disc disease was not diagnosed until the late 1980's, following a slip and fall accident many years after service. Although the chiropractor who gave the diagnosis of degenerative disc disease stated that it could have been caused by a fall in service, he did not have access to the veteran's file when formulating his opinion. A VA examiner has specifically stated that the veteran's degenerative disc disease is not service related, based on a review of the record and the recent findings. Consequently, the statement from the VA physician is found to be more probative. While testimony and statements of the veteran and his friends and relatives are relevant and informative as to their observations, they are not particularly probative with regard to the primary questions involved in this case. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The veteran and his friends and relatives are not medically trained professionals and their opinions are of limited probative value on issues of medical diagnoses and etiology. In regard to the currently diagnosed herniated nucleus pulposus, the evidence of record is not in equipoise concerning the question of whether the current back pathology had its origins in service. Although a herniated nucleus pulposus was suspected in service, there was no confirmed diagnosis of a herniated nucleus pulposus, and upon a subsequent complaint in service of low back pain, no mention was made of a herniated nucleus pulposus, and a diagnosis of low back strain was made. A herniated nucleus pulposus was not diagnosed until many years after service following a slip and fall accident. Again, the evidence is not in equipoise such as the currently diagnosed back pathology could reasonably be related to service. Because of the extensive length of time between service and the confirmed diagnoses of chronic back pathology, the lack of evidence confirming chronic back disability in service, the limited medical evidence supporting an inservice origin of back pathology, and the documentation of a significant post service back injury, the Board concludes that there is no reasonable basis for granting service connection for a chronic low back disorder, to include degenerative disc disease and a herniated nucleus pulposus. Therefore, the benefit sought on appeal is denied. In considering the veteran's claim, the Board has been mindful of the doctrine of granting the veteran the benefit of any doubt which might exist concerning any matter pertinent to his claim. The evidence is not found to be sufficiently in equipoise to raise such a doubt. 38 U.S.C.A. § 5107. ORDER Service connection for a chronic low back disorder, to include degenerative disc disease and a herniated nucleus pulposus, is denied. JEFF MARTIN 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.