BVA9502215 DOCKET NO. 94-02 149 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant and Ronald Barette ATTORNEY FOR THE BOARD J. F. Gussio, Associate Counsel INTRODUCTION The veteran had active military service from January 1971 to December 1972 and from November 1990 to June 1991. This appeal to the Board of Veterans' Appeals (Board) arises from a February 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. CONTENTION OF APPELLANT ON APPEAL The veteran contention is that his pre-existing low back disorder was aggravated during his second period of service. He claims that his low back was essentially asymptomatic following surgery for a herniated disk in 1984. He claims that he aggravated his low back during service in February 1991 as a result of sleeping, lifting and riding in a truck over rough desert terrain in Saudi Arabia. He claims that he was treated for low back pain in service and subsequently developed degenerative changes and a small disc protrusion of the low back after service. He claims that the degenerative changes and small disc protrusion are evidence of aggravation. 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 the preponderance of the evidence is against the veteran's claim for service connection for a low back disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's low back disorder pre-existed service and is not shown to have increased in severity during service. The veteran experienced intermittent low back pain during service which resolved during service. There is no evidence of an increase in low back pathology during service. 3. Degenerative changes of the low back are not shown during service or within one year following separation from service and are not shown to be related to any incident in service. CONCLUSION OF LAW The veteran's back disorder pre-existed service and was not aggravated by active service and arthritis of the low back may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1111, 1112, 1153 (West 1991); 38 C.F.R. §§ 3.306(1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. The Board is satisfied that all relevant facts have been properly developed. We initially note that the veteran's service medical records pertaining to his first period of service during 1971-1972 have not been obtained and associated with his claims file. While this is a service connection case, his claim is premised on the theory of aggravation during service in 1990-1991 of a pre-existing low back disorder which developed about 1984. Thus, records representing the veteran's condition many years prior to his surgery in 1984 would not be pertinent to his claim of aggravation. In addition, the veteran submitted additional evidence directly to the Board after his most recent supplement statement of the case. This evidence was accompanied by a written waiver of RO consideration. Therefore, the Board has jurisdiction to review the additional evidence. 38 C.F.R. § 20.1304 (c). Finally, the veteran' service medical records for his second period of service, private treatment records reflecting treatment before and after service, a VA examination, and transcripts of the veteran's personal hearing and Travel Board hearing have been associated with his claim's file. Accordingly, all relevant evidence necessary for equitable disposition of the veteran's appeal has been obtained by the RO. No further assistance to the veteran is required in order to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a) (West 1991). Service connection may be established for disability resulting from injury or disease incurred in service or from pre-existing disease or injury which was aggravated by service. 38 U.S.C.A. §1110 (West 1991). If arthritis manifest within one year after separation of service, it may be presumed to have been incurred in service. 38 U.S.C.A. § 1112 (West 1991). A veteran who served during a period of war is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed before service will rebut the presumption. 38 U.S.C.A. § 1111 (West 1991). A pre-existing injury or disease will be considered to have been aggravated by active 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. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during wartime service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306 (1993). Service department medical examinations in October 1985 and October 1989 prior to enlistment into service in November 1990 revealed that the veteran underwent disc surgery in April 1984. Clinical evaluation revealed a normal spine with a post surgical herniated disc scar. On redeployment examination in April 1991, the veteran reported occasional low back pain. Clinical evaluation of the low back revealed a well healed scar from the disc surgery in 1984. There was no sequela. Neurological evaluation was within normal limits. In May 1991, the veteran reported having low back pain from sleeping, lifting and riding in a truck on desert roads. Examination of the low back was within normal limits. The impression was low back pain, resolved. Private treatment records from D. H.Weber, M.D., dated in August and September 1992, revealed that the veteran was treated for low back pain that radiated down his left leg. An MRI performed in August 1992 showed degenerative changes and a small disk protrusion of the left midline . Private treatment records from Eugene E. Hertzbergan, M.D., dated in September 1992, revealed that the veteran was operated on for a large disc herniation in April 1984 and that the veteran suffered an apparent small disc protrusion in December 1984. Dr. Herzbergan stated that the veteran reported that he was essentially asymptomatic until the truck incident in service in 1991. He stated that the veteran's small disc protrusion and narrowing of the L5-S1 seen on the recent MRI in August 1992 were fairly common in post-operative cases; that the amount of scar tissue at the operated site was not major; and that his evaluation of the veteran's back did not reveal any significant disc herniation He stated that patients tend to experience severe pain in most cases of recurrent disc herniations and that the veteran was reasonably comfortable most of the time. He stated that the veteran would be subject to recurrent lumbosacral strains and nerve root irritations. On VA examination in September 1992, X-rays of the lumbar spine were interpreted as essentially normal, with the exception of narrowing of the L5-S1 interspace. The diagnosis was post- laminectomy low back pain. Lay statements dated in July 1993 were to the effect that the veteran injured his back while riding in a truck in service; that he has experienced back pain since that incident; and that he was unable to participate in training exercises in his unit. The medical evidence as outlined above shows that the veteran underwent surgery for a ruptured disc in 1984 and experienced pain from an apparent small disc protrusion in December 1984. Medical examinations performed in October 1985 and 1989 prior to entrance into his second period of service disclosed the veteran's history of herniated disc surgery. A post-operative scar was noted. Accordingly, the medical evidence clearly and unmistakably shows that the veteran's low back disability pre- existed service. Thus, the presumption of soundness on induction is adequately rebutted. Addressing whether his low back disability was aggravated by service, the medical evidence revealed that the veteran was treated for low back pain in May 1991 as a result of sleeping, lifting and riding in a truck on the rough desert terrain. Examination of the low back at that time revealed a normal low back. The impression was "low back pain, resolved." While the veteran experienced occasional back pain in service, case law provides that temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Here, there was no increase in severity of the veteran's pre-existing low back disability during service. Arthritis was not present in service or within one year after separation of service. As noted, the back was normal on the examination prior to separation. Thus, after balancing the positive and negative evidence as reflected in the record, service connection for a low back disorder, claimed to have been aggravated by service, is not warranted. In making this determination, the Board has considered the veteran's hearing testimony at the personal hearing in July 1993 and at the Travel Board hearing in January 1994 to the effect that his low back condition was aggravated by riding in the truck in Saudi Arabia during his second period of service and that treatment following his separation of service revealed degenerative changes and small disc protrusion. The veteran's friend testified that he observed the veteran having back pain, but did not observe the veteran riding in the truck. Such testimony, however, has little probative value and is far outweighed by the record as previously discussed. Although the veteran claims that the arthritis and small disc protrusion seen on the MRI in August 1992 are evidence of an increase in severity of his pre-existing low back disorder, these conditions were not shown in service in 1990-1991. Moreover, the veteran's private physician stated that degenerative changes and recurrent disc protrusion were common in post-operative cases and that the veteran would experience recurrent lumbosacral strain and nerve root irritation. In addition, lay persons are not qualified to testify as to medical causation. Espiritu v Derwinski, 2 Vet.App. 492 (1992). In sum, the preponderance of the evidence is against the veteran's claim for service connection by aggravation for a low back disorder. ORDER Service connection for a low back disorder is denied. J. U. JOHNSON 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.