BVA9501865 DOCKET NO. 91-42 662 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James L. March, Associate Counsel INTRODUCTION The veteran had active duty from May 1967 to December 1968. This appeal comes to the Board of Veterans' Appeals (Board) from a January 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In May 1992 and September 1993, the Board remanded the case for further development, which has been accomplished as regards the certified issue. In the May 1992 remand, the Board also directed the RO's attention to claims concerning the veteran's entitlement to vocational rehabilitation benefits and to service connection for residuals of Agent Orange exposure. The former was found to be still in the evaluation stage, while the latter was denied by the RO in March 1994 without disagreement on the veteran's part to this point. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he injured his back in service and that it has continued to bother him ever since. He alleges that his back was injured while he was carrying a telephone pole. He notes that he did not receive medical attention after service, but that his wife cared for his back. 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 veteran has failed to submit evidence sufficient to justify a belief by a fair and impartial individual that his claim for service connection of low back disability is well- grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. In June 1967, while on active duty, the veteran injured his low back. 3. There is no credible evidence of low back disability between June 1967 and October 1990, at which time a VA examiner diagnosed chronic low back pain. 4. The low back injury sustained during service was acute and resolved without chronic residuals; there is no clinical evidence that the veteran has any chronic disability attributable thereto. CONCLUSION OF LAW The claim for service connection for low back disability is not well-grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that the veteran's claim for service connection for low back disability must be plausible and capable of substantiation, and thus well-grounded within the meaning of 38 U.S.C.A. § 5107(a). If not, VA has no further duty to assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). If the disorder is a specified chronic disease, service connection may be granted if manifest to a degree of 10 percent within the presumptive period; the presumptive period for arthritis is one year. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The service medical records indicate that on June 3, 1967, the veteran complained of hitting his back on a door. On June 7, 1967, he complained of low back pain in the right lumbar region. Subsequently, a note was made indicating that the veteran felt fine and was fit for duty. In September 1967, the veteran reported that he was lifting some poles and felt pain in his testicles. There were no complaints involving his back. The remaining service medical records are negative for complaints of or treatment for back pain. At his separation examination of December 1968, he specifically denied recurrent back pain. The examination was negative for any back disability. Subsequent to active duty service, the veteran was a member of the Army Reserves. In March 1974 and January 1978, physical examinations were conducted. Once again, the veteran specifically reported that he had never had recurrent back pain, and the examinations were negative for back disability. In November 1990, the veteran submitted a letter in which he alleged that he injured his back in service carrying a telephone pole. He stated that he was assisted to the dispensary and given aspirin and salt tablets. He indicated that he did not receive adequate medical care for his back. A VA examination was conducted in October 1990. It was reported that the veteran had had an aching low back since 1968. Flexion of the lumbar spine was to 90 degrees; extension was to 16 degrees. Lateral flexion was to 22 degrees, and rotation was to 16 degrees. Movements were done with pain. Deep tendon reflexes were 0 to plus one and equal, and straight leg raising was positive, bilaterally. The diagnosis was chronic low back pain. A psychiatric examination report dated in November 1990 states that the veteran's last job was in 1970, and that he had been unable to obtain work because of low back pain from a back injury at Fort Gordon in 1967. There is no indication that either VA examiner reviewed the veteran's claims folder. In May 1991, a hearing was held before a hearing officer at the RO. The veteran testified that after he was discharged from the service, he went to the VA for treatment of his back. He stated that he was not examined, but that he received pain pills. He indicated that he did not receive any more medical attention for his back until 1990, but that over the years his wife put heating pads on his back and gave him some of her pain pills. He contended that the VA examination conducted in 1990 was not adequate, as no X-rays were taken. He maintained that at times his right arm became paralyzed and his left leg became numb, both of which he attributed to a back disorder, and that he had experienced these problems since he was discharged from service. He stated that his current wife was a nurse. A transcript of the hearing is of record. In June 1992, a special VA spine examination was conducted. The veteran stated that he injured his back in service when carrying a telephone pole. He alleged that he did not receive adequate treatment, because his unit was sent to Vietnam, but he reported that a diagnosis of "sprained back" was made in Vietnam. He currently complained of low back pain, with occasional sharp radiating pain in the left leg. The examination revealed tenderness in the left costal-vertebral angle and in the midline of the low lumbar spine. There was no atrophy of the calf or thigh, and motor and sensation appeared intact. He was able to toe and heel walk without much difficulty, although he gave a poor effort. Flexion of the lumbar spine was to 85 degrees; extension was to 45 degrees. Rotation and lateral flexion were to 45 degrees, bilaterally. There was no spasm of the perispinous muscles, but the veteran grunted when hitting certain areas where there was pain. No X-rays were done. The impression was degenerative joint disease of the lumbar spine, presently mild. It was noted on a June 1992 psychiatric examination that the veteran "concentrated on back pain." In a statement dated in October 1993, the veteran indicated that in 1969 he went to the VA Medical Center in New Orleans (VAMC), but that because he was not service connected for a back disorder, he did not get treatment. He stated that he did not receive medical attention for his back until 1990. Medical records were received from the VAMC, dated from June 1991 to November 1993. The records, for the most part, concerned psychiatric care; however, in May 1992, the veteran began complaining of back pain. On several occasions he related a history of a back injury in service. X-rays taken in May 1993 reportedly showed sacralization of L5. The diagnosis then was low back pain with radiating pain and numbness in the left leg. The Board finds no credible evidence attributing the veteran's current low back disability to service. Although he injured his back in June 1967, the injury was acute and quickly resolved without residuals. The separation examination and March 1974 and January 1978 Reserve examinations were negative for any back disability. Even more probative are the veteran's specifically reported histories of no recurrent back pain at the time of those examinations. The Board finds that the veteran's testimony of continued back pain since his discharge from service is not credible. It is specifically rebutted by his own statements at the time of the separation examination and at the March 1974 and January 1978 Reserve examinations. In addition, the veteran's description of the back injury as occurring while carrying a telephone pole is not supported by the evidence. The veteran did sustain an injury carrying a telephone pole; however, that injury involved only the testes. The first post-service medical evidence of back disability is the October 1990 VA examination report which shows a diagnosis of chronic low back pain. Although a diagnosis of degenerative joint disease of the lumbar spine was made at the June 1992 VA examination, that disease has never been confirmed by X-ray. In any event, there is no clinical evidence attributing any chronic low back disease to service, and, thus, the claim fo service connection therefore is not well-grounded. ORDER Service connection for low back disability is dismissed. J. J. SCHULE 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.