BVA9507308 DOCKET NO. 93-15 706 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for residuals of a lower back injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Z. Jones, Associate Counsel INTRODUCTION The veteran-appellant had active service from May 1952 to April 1956. This appeal arises from a July 1992 rating decision of the Lincoln, Nebraska, Department of Veterans Affairs (VA) Regional Office (RO). In a July 1956 rating decision, the RO denied the veteran's claim of service connection for a back disability on the grounds that no back disability was shown on separation examination. That decision became final when, after being notified of his appellate rights later that same month, the veteran did not appeal the decision within one year from the date of the notice. In May 1992 the veteran again applied for disability compensation for residuals of a lower back injury. In the July 1992 rating decision, the RO considered all the evidence of record and denied the claim on the merits. The Board will also review the claim on the merits without regard to the finality of the July 1956 rating decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, essentially, that the veteran injured his back during service while loading canons onto a truck, that he went to the dispensary 3 or 4 times because of back pain, that he had short black out spells which he was told were due to back pain and that he mentioned his back condition at discharge so that it could be noted on his discharge physical. He further contends that on the basis of medical principles, injury to one part of the motion complex associated with scar tissue causes resultant abnormal wear on other movable parts, supporting a casual relationship between his inservice injury and his current back disability. He asks that the presumption of soundness be applied. The veteran recalled being treated at the VA medical facility in Cheyenne for back problems immediately following service. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), after review and consideration all of the evidence and material of record in the veteran's claims file and for the following reasons and bases, the Board decides that the preponderance of the evidence is against the claim of service connection for residuals of a lower back injury. FINDINGS OF FACT 1. In service, the veteran's lower back strain was acute and transitory and did not result in chronic residuals. 2. The veteran's current lower back disability, involving degenerative disc disease and degenerative joint disease of the lumbar spine, is not related to active service, and arthritis of the spine was not manifested until several years after active duty. CONCLUSION OF LAW Chronic residuals of a low back injury were not incurred or aggravated in service and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 1137, 5107(b) (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran requested that all medical records concerning his treatment be obtained from the VA Medical Center (VAMC) in Cheyenne, Wyoming from 1956 to 1981. In June and July 1992, at the request of the RO, the Cheyenne VAMC forwarded all reports concerning treatment of the veteran's back condition. Factual Background Service medical records disclose that in July 1954 the veteran strained a muscle in his lower back while lifting heavy weight. The provisional diagnosis was low back strain. He was treated with hot packs and massage for four days and he felt better. On separation examination in April 1956 no reference was made to a back disability. Records from the Cheyenne VAMC, covering the years 1981-1992, disclose that in May 1981, the veteran was seen for treatment of facial injuries, abdominal trauma and complained of back pain. X-rays revealed broken transverse processes of L2-3 and some arthritic changes in the lumbar spine. In February 1986, the veteran was seen for complaints of back pain and gave a history of low back pain since 1953. X-rays of the lumbosacral spine revealed mild degenerative changes consistent with osteophytosis. The diagnosis was chronic low back pain and degenerative joint disease. In June 1992, a CT scan of the lumbar spine showed degenerative disc disease at L3-4, L4-5, L5-S1. Analysis Service connection may be granted for disability resulting from injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. § § 1110, 1131. Under 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a), pertaining to principles relating to service connection, service connection means that the facts shown by the evidence establish that a particular disease or injury resulting in disability was incurred coincident with service. This may be accomplished by affirmatively showing inception during service or through the application of statutory presumptions. Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The service medical records indicate that in July 1954 the veteran was seen for lower back pain associated with a lifting- type injury and that the provisional diagnosis was low back strain. Thereafter, there were no further health record entries, including on separation examination in 1956, relating to the lower back by complaint, finding or history. On the basis of the service medical records, chronic residuals of a lower back injury were not shown to be present coincident with service. As a finding of chronic low back disability is not adequately supported by the service medical records, then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b). See Rhodes v. Brown, 4 Vet.App. 124, 126 (1993). The first documented complaint of back pain after service was in 1981 when X-rays revealed some degenerative arthritic changes in the lumbar spine. This apparently followed a traumatic incident, since the veteran also had injuries to the face and abdomen. Degenerative disc disease was found on X-ray in June 1992. Coming more than 25 years after separation from service, and following significant post-service trauma, the Board concludes that these findings are too removed from the veteran's service years to be probative that the veteran's current low back disability is related to service. As for the assertion that medical principles establish a nexus between the veteran's current back disability and the low back strain suffered in service, the Board finds that the this assertion is insufficient evidence to support his claim. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992) (holding that lay persons are not competent to offer medical opinions). The Board also notes that the medical records are void of any reference to an injury associated with scar tissue, the premise upon which the cited medical principle is based. While the veteran claims that he was treated for back problems at the VA medical facility in Cheyenne proximate to his service discharge, the RO contacted the Cheyenne VA Medical Center and requested all records from January 1957 to present. No records dated prior to 1981 were discovered. There is no evidence that arthritis of the lumbosacral spine was manifested to a disabling degree within one year after separation from service. For these reasons, the preponderance of the evidence is against the claim. ORDER Service connection for residuals of a lower back injury is denied. THOMAS J. DANNAHER 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.