Citation Nr: 0000254 Decision Date: 01/05/00 Archive Date: 01/11/00 DOCKET NO. 95-27 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a chronic low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The veteran served on active duty from December 1984 to November 1990. This appeal arose from a February 1994 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA), Regional Office (RO), which denied entitlement to the benefit sought. This case was previously before the Board in September 1997 at which time it was remanded for additional evidentiary development. The development requested in that remand has been undertaken and the case is now ready for appellate consideration. FINDING OF FACT The evidence establishes the presence of a current disability of the low back and reflects that the veteran experienced low back problems which were treated in service and thereafter. CONCLUSION OF LAW Service connection for a chronic low back disability is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991 & Supp. 1997); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends that service connection for chronic low back disability is warranted. He notes that his service medical records document complaints of low back pain in service and maintains that he continues to suffer from recurrent back pain. Therefore, he believes that he is entitled to the benefit sought. Applicable Law and Regulations Under the applicable criteria, service connection may be granted for a disability the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1997). For the showing of a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service connection may also 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) (1999). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background A review of the veteran's service medical records show that he had a normal clinical evaluation of the spine on enlistment examination in September 1984. In October 1986, the veteran was involved in a motor vehicle accident. Following the accident, the veteran initially complained of neck pain, but he was also seen two days later with complaints of back pain. Records dated in October 1986 indicated that the veteran had been the driver of a car that had been rear ended and that although he did not lose consciousness, the veteran hit his head on top of the roof of the car, while his neck was leaning to the left. It was also noted that he hit the left side of ribs 7 and 8 on the steering wheel. Examination revealed that the veteran had an antalgic gait. Deep tendon reflexes and sensorium were intact. There were spasms at the left iliac crest to the left paravertebral muscles (PVMs). The veteran also had a "modified" range of motion in all planes, secondary to pain. A diagnosis of myospasms, with strain and sprain of the lumbar spine, was made. Records dated in November 1986 noted that although there was still some mild left paraspinal muscle tenderness in the lumbosacral spine, it was much less than seen on previous visits. A diagnosis of resolving sprain of the lumbosacral spine was made. A periodic examination conducted in December 1986 showed a normal clinical evaluation of the spine. In May 1988, the veteran was seen with a 1 month history of low back pain. It was noted that the veteran had received spinal anesthesia for left knee surgery in April 1987 and in August 1987. Upon examination the veteran was found to have full range of motion with pain on flexion. He also manifested spasms of the PVMs. X-ray films were noted to be within normal limits. A diagnosis of lumbar paraspinous strain was made. The veteran was then referred to physical therapy. In August 1993, the veteran filed a claim of entitlement to service connection for a disability of the lower back, indicating that calcium deposits and nerve damage had developed in the lower back due to a spinal tap which had been performed in service. VA outpatient treatment records dated from August 1993 to December 1993 were submitted for the record. An August 1993 record showed that upon physical examination, there was marked decreased motion of the lumbar spine, moderate to severe paraspinous spasm, and L5 neuropathy. A December 1993 record indicated that the veteran had moderately decreased range of motion of the lumbar spine but that X-ray films were normal. A diagnosis of infrequent low back pain was made. The veteran was afforded VA neurologic and orthopedic examinations in November 1993. On neurologic examination, the veteran gave a history of having had a spinal tap in service and four knee surgeries. Physical examination revealed that the veteran restricted somewhat on forward bending of the low back, with pain in the lumbar area. On flexing the spine to the left, the veteran complained of some pain to the left of the spine and in the paravertebral area. Although the veteran did not appear to have any involuntary muscle spasms, the examiner noted that there was a moveable subcutaneous mass in the lower lumbar area, which could be felt to slip up and down on the palpating hand. The examiner concluded that the veteran's neurologic examination was normal. A diagnosis of chronic low back pain, cause undetermined following spinal taps and epidural taps in service for knee surgery, was made. On VA orthopedic examination, a history of spinal anesthesia and epidural anesthesia in conjunction with surgery performed on the lower extremities was noted. The veteran complained of rare episodes of pain, tightness and soreness in the left mid lumbar area and also noted little lumps under the skin. Physical examination of the thoracolumbar spine revealed that the veteran's carriage, gait and arm-swing were normal. The veteran was able to do heel/toe and tandem walking, as well as a full squat and stand without difficulty. The examiner further noted that the veteran had remarkable symmetrical muscle development, with no evidence of scoliosis on examination. Although the veteran complained of sensitivity over the left lumbar muscles, the examiner did not believe that there was any objective evidence of pain on examination. The examiner noted that the veteran had 3 very small, thin, non-tender, subcutaneous lipomas in the left mid-lumbar area from 1 to 2 inches to the left of the midline; the veteran stated that he never notices these, unless his back tightens up. There was no back deformity. Range of mobility of the thoracolumbar spine showed forward flexion to 90 degrees, with backward extension to 30 degrees, left/right lateral flexion to 40 degrees and left/right rotation to 35 degrees. The examiner further noted that there was no objective evidence of pain on motion. The orthopedic examiner's diagnosis was a history of several episodes of low back pain, not clinically apparent and nonlimiting upon examination. The examiner also opined that the claimed episodes of back pain were not related to having spinal or epidural anesthesia. By rating action of February 1994, the RO denied the claim of entitlement to service connection for low back pain/nerve damage. The veteran offered testimony at a personal hearing held in July 1994. He testified that during service he underwent a spinal tap and that thereafter had to seek medical attention for back problems. At the hearing additional evidence was presented. In support of his claim, the veteran submitted a copy of an article entitled Catching the Cause of Low Back Pain. The veteran also submitted a July 1994 statement from his former athletic trainer while he was on the basketball team in college, which avers that the veteran never suffered a back injury other than a muscle strain or an acute muscle spasm between the fall of 1980 and the spring of 1984. In an April 1995 determination, a RO hearing officer denied entitlement to service connection for a low back disability. The veteran presented testimony at a Board hearing held in April 1997. The veteran testified that he underwent knee surgery in 1987 and that in conjunction with the surgery he had spinal anesthesia, following which he experienced back problems. He stated that the back problem was chronic and that it was treated with medication. He indicated that he was treated for back problems both in service and shortly after service. The case initially came before the Board in September 1997 at which time it was remanded for additional evidentiary development, to include scheduling the veteran for a VA examination. VA examinations were conducted in December 1997. Upon neurological examination the veteran complained of episodes of a minor increase in low back pain for which he has been taking medication. X-ray films of the lumbar spine were normal. An MRI showed minor desiccation of the disc at L4-L5 with a very small extrusion to the left. The examiner indicated that these findings did not indicate that there was any nerve root or radicular syndrome involved. Nerve conduction and EMG studies were also normal. The examiner indicated that the findings were insufficient to diagnose a neurological disease or injury and opined that although the veteran's medical records had been reviewed, he was unable to tie the veteran's complaints to any type of spinal procedure or anesthetic on a medical basis. Upon VA orthopedic examination conducted in December 1997, the veteran complained of low back problems. Diagnoses of desiccation of and minor extruded disc on the left at L4-L5 and minor degenerative spondylosis of the thoracic spine were made. The examiner noted that these changes represented a degenerative condition of primary origin and were not related to the spinal tap or spinal anesthesia. Analysis Establishing direct service connection for a disability requires evidence sufficient to show (1) the existence of a current disability; (2) the existence of a disease or injury in service; and (3) a relationship or connection between the current disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303(d) (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). Initially, the Board finds that the claim for entitlement to service connection for a low back disability is well-grounded in that the claim is plausible in accordance with 38 U.S.C.A. § 5107 (West 1991). In this case, the December 1997 VA examinations established the presence of a current disability of the lumbar spine, diagnosed as desiccation of and minor extruded disc on the left at L4-L5. In addition, the service medical records documented numerous entries showing complaints and treatment of low back problems. In Savage v. Gober, 10 Vet. App. 489 (1997), the Court observed that a claimant may obtain the benefit of § 3.303(b) by showing a continuity of symptomatology. The Court noted that a veteran's assertion of continuity of symptomatology, in and of itself, may be sufficient to well ground a claim. The Court also stated if continuity of symptomatology is shown, medical evidence of a nexus between the veteran's current disability and his service may not be necessary to well ground a claim. To require otherwise would nullify the § 3.303(b) continuity of symptomatology provision. In this case, in light of the veteran's hearing testimony to the effect that back problems began in service and persisted thereafter until the present time, the fact that low back problems were documented throughout service, and considering that complaints and treatment of back problems was shown post-service in 1993 and that the evidence indicates the presence of a current disability of the low back, an etiological link between service and post service is established based upon continuity of symptomatology. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). The Board concludes that there is sufficient clinical evidence, in service and after service, supporting the veteran's assertion that he has experienced back pain since service to warrant a finding that there is a continuity of symptomatology between his inservice complaints and the currently demonstrated low back disability. Therefore, service connection for a low back disability is warranted and, accordingly, the benefit sought is granted. ORDER Service connection for a chronic low back disability is granted. HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals