BVA9507497 DOCKET NO. 92-10 919 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of a low back injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. Bohanan, Associate Counsel INTRODUCTION The appellant served on active duty from September 1968 to August 1972. This appeal arises from an October 1990 rating decision on the Department of Veterans Affairs Regional Office (VARO) in St. Petersburg, Florida, which denied the appellant service connection for the residuals of a low back injury. The Board remanded the appellant's claim for further development and for adjudication of the issue of service connection for hypertension in December 1993. VARO denied the appellant's claim for service connection for hypertension in an April 1994 rating decision. The appellant did not file a notice of disagreement with that decision and that issue is not before the Board at this time. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he injured his low back during service and that he suffers from residuals of that back injury. 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. For the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for service connection for the residuals of a low back injury and, therefore, the appellant's claim for service connection for a low back disorder is denied. FINDINGS OF FACT 1. The appellant served on active duty from September 1968 to August 1972. 2. Objective evidence does not substantiate that the appellant injured his low back during service. 4. Any back injury sustained during service was acute and transitory and resolved without residuals prior to discharge. CONCLUSION OF LAW Chronic residuals of a low back injury were not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1101, 1110 (West 1991); 38 C.F.R. § 3.303(b) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is seeking service connection for the residuals of a low back injury. Under pertinent law and VA regulations, service connection may be granted if symptomatology attributable to a low back injury appeared during service. 38 U.S.C.A. §§ 1101, 1110 (West 1991); 38 C.F.R. § 3.303(b) (1994). It is not necessary to have a diagnosis of a particular disability during service, but it is necessary to have manifestations sufficient to establish that a disability was present. 38 C.F.R. § 3.303(d) (1994). Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded, i.e., "plausible". 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, the Board believes that this case has been adequately developed for appellate review by VARO, and that the Board may therefore proceed to a disposition on the merits without the necessity of a remand for additional development. For a clear understanding of the case, the Board will first review the appellant's pertinent medical history. MEDICAL HISTORY Service medical records reported that the appellant complained of severe right flank pain in May 1971. He was treated at a civilian hospital and transferred to a military facility. The civilian hospital discharge summary was recorded verbatim in the military records and reported that the appellant improved considerably within the first twenty-four hours of hospitalization. An x-ray of the lumbosacral spine showed straightening of the normal lumbar curve and showed that the disc spaces were well maintained, with no evidence of a recent or an old injury. The final diagnoses were severe right flank pain, etiology unknown, possibly due to musculoskeletal irritation; congenital reduplication of the right renal collecting system with reduplication of the ureter; and, paroxysmal hypertension of unknown etiology. The appellant continued to complain of back pain. A military hospital summary reported that he was hospitalized from July 1971 to August 1971 for evaluation. He claimed that his back pain began suddenly while he was on leave after he threw a stick while playing with a dog. The examiner observed that the appellant had full range of motion of his back with no tenderness and no spasm. There was decreased sensation along the left buttock, lateral thigh and left lateral leg into the lateral aspect of the foot. The final diagnosis was low back strain and left back sciatica. Service medical treatment entries reported that the appellant continued to complain of back pain in September 1971, November 1971, February 1972, and March 1972. X-rays of the spine were unremarkable. February 1972 treatment entries attributed the appellant's continued back pain to his weight problem. There was slight tenderness to palpation from L1 to L5 in midline. The appellant was ultimately discharged from service due to "exogenous obesity." The appellant was admitted to the Indian Path Hospital for evaluation in January 1977 after he injured his back at work when he picked up a case of eggs. He reported a previous backache problem 6 years earlier, but claimed he made a complete recovery. The appellant had 50 percent range of motion without radiation or pain. X-rays were negative for any bone or joint abnormalities. The examiner diagnosed muscular ligamentous sprain of the lumbar spine. He noted his anticipation of a slow recovery, but did "not believe any permanent physical impairment arising from this episode w[ould] be encountered." Medical treatment records from the Jewett Orthopaedic Clinic dated from April 1984 to January 1990 were submitted which reported that the appellant was first treated as a result of a worker's compensation injury after receiving treatment from a chiropractor for several months. A lumbar myelogram and CAT scan confirmed a disc extrusion and a laminectomy was performed, revealing a large disc extrusion at L5-S1. The appellant improved and by December 1984, denied any leg pain. Although he claimed to have occasional numbness in the bottom of his foot, he was "overall doing quite well pain-wise." The appellant was next treated at the Jewett Orthopaedic Clinic in July 1987. He claimed that he had not been experiencing back or leg pain "until about three weeks ago" when he picked up three cases of orange juice and had a "sudden onset of left leg pain." The examiner again diagnosed a large disc herniation at L5-S1 and surgery was performed. There was initial improvement. However, the appellant reported a return of leg pain in August 1987. In September 1987, the appellant reported that he was involved in an automobile accident on his way to the clinic for his follow-up appointment and was experiencing neck and low back pain and some pain in his right thigh. The examiner reported in an October 1987 treatment entry that the appellant was "doing well from the sciatic standpoint" but felt that the appellant "still has some inflammation in his neck from his recent accident." In July 1991, the appellant returned to the Jewett Orthopaedic Clinic. He related to the examiner that he had experienced low back pain in service and had applied for VA benefits, but had been denied. Based upon that information, the examiner opined a possible "history of degenerative disc disease that ultimately ruptured." The appellant submitted excerpts from medical texts regarding various back pathologies. A statement from the appellant's ex-wife, S.F., was also submitted. She reported that the appellant was hospitalized after they were married in May 1970 for his back. She further claimed that during their marriage from 1970 to 1979, the appellant would have periods of back pain when he could not move. At his October 1991 hearing on appeal, the appellant testified that he had continual back pain, from the time that he injured his back in service, which he claimed was unrelated to his obesity. A VA neurological examination was conducted in February 1994. The examiner found no cerebral, cranial nerve, bulbar or cerebellar abnormality. He summarized that the appellant showed evidence of lumbar radiculopathy reportedly related to multilevel disc disease and general hyporeflexia, which he further reported may be insignificantly related to the appellant's diabetes mellitus. A February 1994 orthopaedic examination was also conducted. The examiner noted that the appellant walked with a slightly measured gait, but demonstrated no specific clinical abnormality. He could bend forward to 50 degrees before complaining of severe low back pain. There was no paralumbar muscle spasm or tenderness. The examiner opined that the appellant "has no measurable degree of physical impairment from the injuries he might have sustained to his back while on active duty". The examiner noted that the appellant worked regularly from 1972 "until his first work related injury some few years later." His impression was post laminectomy syndrome. X-rays of the appellant's lumbosacral spine revealed minimal osteoarthritic changes with slight narrowing of L4-5 and L5-S1. ANALYSIS The Board finds that the objective medical evidence does not substantiate that the appellant's currently diagnosed low back disorder is the result of any injury during service. In so finding, we place emphasis on the appellant's most recent February 1994 VA examination reports, which indicated that he has no residuals from any injury in service; the January 1977 Indian Path Hospital summary which reported that the appellant claimed that he injured his back at work and that, although he had a back problem 6 years earlier, he had completely recovered; the private treatment records from Jewett Orthopaedic Clinic which reported that the appellant received treatment for 2 work-related injuries resulting in worker's compensation claims. The appellant repeatedly attributed the onset of his back problems to work- related incidents without reference to continuing symptomatology after service. The Board has considered the written statements submitted by the appellant claiming an injury to his back during service and an etiological relationship between his back injury during service and his currently diagnosed back pathology. However, the Board finds that those statements have less probative value than the objective medical records during and after service. From the time of the appellant's discharge from service in August 1972 to his injury in January 1977 there are no records pertaining to complaints or treatment concerning his back. The medical record does not substantiate a claim that the appellant either suffered from a chronic injury during service or that he has experienced a continuity of symptomatology so as to establish chronicity since his discharge. "[W]hen 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) (1994). Therefore, it is the opinion of the Board that the appellant's low back disability is unrelated to his military service and that entitlement to service connection for a low back disorder is not warranted. ORDER Service connection for residuals of a low back injury is denied. KENNETH R. ANDREWS, JR. 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.