BVA9500956 DOCKET NO. 92-24 642 ) DATE ) ) ) THE ISSUE Entitlement to service connection for chronic low back disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alan S. Peevy, Associate Counsel INTRODUCTION The veteran had active military service from October 24, 1979, to November 15, 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 26, 1992, rating decision by the Waco, Texas, Regional Office (RO). A notice of disagreement was received on September 8, 1992, and a statement of the case was issued on November 3, 1992. The veteran's substantive appeal was received on November 9, 1992. On April 26, 1993, the veteran testified at a personal hearing before a member of the Board sitting at the RO. The veteran is not represented in connection with his appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his current low back problems are related to his period of military service. Specifically, he maintains that he injured his back during service when he fell down several stairs during a surprise fire drill. The veteran asserts that this incident either aggravated some minor back problems which he had before service or directly resulted in his current back disability. The veteran further maintains that when he sought medical treatment in service, he was never asked if he had injured his back. Moreover, he contends that he did not receive adequate medical attention and no x-ray studies were accomplished. The veteran directs the Board's attention to the conflicting service medical records. 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(s). 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 entitlement to service connection for low back disability. FINDINGS OF FACT 1. A low back disorder clearly and unmistakably preexisted the veteran's entry into peacetime active military service. 2. There was no increase in disability associated with the veteran's preexisting low back disorder during the veteran's service. 3. A separate chronic back disability was not manifested during the veteran's military service or for several years after discharge from service. CONCLUSION OF LAW Chronic low back disability was not incurred in or aggravated by the veteran's active peacetime military service. 38 U.S.C.A. §§ 1131, 1132, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.306 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Applicable law provides that entitlement to service connection will be granted if the facts, shown by a preponderance of the evidence, establish that a particular disease or injury resulting in disability was incurred in service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (1993). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (1993). Entitlement to service connection may also be established if the evidence shows that a preexisting injury or disease was aggravated by active military service, unless the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306 (1993). Turning to the record, we note that at the time of a preliminary physical review on July 24, 1979, prior to his entry into service, the veteran reported that he was suffering from, or had in the past, suffered from back trouble described as a "flat back." No further clarification was provided on the report of that physical review. However, as pointed out by the veteran, there does appear to be a discrepancy in the early service medical records since the report of the veteran's entrance physical examination, conducted just a few days later on July 30, 1979, shows that he denied that he then had, or had ever had, "recurrent back pain." A notation of "no back trouble" was made in the section for reporting the physician's summary. This apparent discrepancy is significant for our review purposes since a veteran is presumed to be in sound condition when examined, accepted and enrolled for service, except as for defects, infirmities or disorders noted at entrance into service. 38 U.S.C.A. § 1132 (West 1991). Regulatory law provides that only conditions recorded in "examination reports" are to be considered as noted. 38 C.F.R. § 3.304(b) (1993). Additionally, history alone of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions, but it to be considered together with all other material evidence. 38 C.F.R. § 3.304(b)(1) (1993). Therefore, since there was no low back condition noted at the actual entrance physical examination (only history given by the veteran on a physical review which, we hold, did not constitute an examination), the Board believes that the veteran must be given the benefit of the presumption of soundness in the present case. However, applicable law also provides that the presumption of soundness may be rebutted by clear and unmistakable evidence that the injury or disease existed before acceptance and enrollment into service and was not aggravated by such service. 38 C.F.R. § 3.304(b) (1993). The record shows that the veteran entered active duty on October 24, 1979. On November 3, 1979, the veteran was seen at a military medical facility for, among other things, back complaints of three day's duration. At that time, the veteran related a history of preservice back problems and reported that he had been told by a physician that he had a "flat back." He was seen for orthopedic consultation on November 5, 1979, and again gave a history of backaches in the past, but indicated that there had been no recent problems. His complaints at that time included low back pain brought on by marching, lifting and bending. The reported orthopedic impression was "chronic LSS." We note here that another partially legible service medical record, dated that same date, seems to indicate that the veteran denied a history of back problem prior to service. The veteran was subsequently discharged from service upon the recommendation of a Medical Board that found; chronic low back pain incapacitating for basic military training; that existed prior to service; and was not permanently aggravated by service. As already noted, the presumption of soundness applies in this case since no back condition was noted (as that term is defined by applicable regulation) at the time of entry into service. However, in view of the record as a whole, we believe that the presumption has been effectively rebutted. The service medical records are quite clear that the veteran suffered from a back problem prior to service. He admitted to such preservice problems in connection with treatment which he sought only ten days after his entry into active service. He not only repeated that history once, but several times. We believe the veteran's admissions together with the brief period between entry into service and the onset of low back symptoms to be clear and unmistakable evidence of a preexisting low back disorder. Moreover, it is clear from his recent statements and sworn testimony that he is not now denying a preservice back condition. Additionally, in view of the nature of the veteran's complaints during service, we are persuaded that there was no aggravation of the preexisting back disorder brought about by the veteran's service. It is true that he reported back symptomatology during service. However, it appears that his complaints were associated with the increased physical activity of basic training such as marching and bending. We believe his low back symptomatology was temporary in nature as evidenced by the lack of any persuasive evidence of back problems for several years after service. In this regard, we believe it significant that the veteran has testified that he not only did not seek medical care for several years after service, but also that he suffered at least two post-service back injuries. We are therefore persuaded that his inservice complaints represented only a temporary flare-up of his preexisting back disorder. Such a temporary flare-up is not sufficient to show aggravation unless there is a worsening of the underlying condition. Hunt v. Derwinski, 1 Vet.App. 292, 297 (1991). As already noted, the lack of back problems for several years after service argues against a finding that there was any such worsening of his underlying back condition resulting from his very brief period of military service. Moreover, notwithstanding the veteran's contention regarding inadequate medical care during service, the detailed service medical records show that the veteran was observed and evaluated on several occasions for back complaints and that his physical condition was then reviewed by a Medical Board. We therefore believe that considerable weight should be given to the conclusion of the trained military medical personnel that there had been no aggravation of the veteran's preexisting low back disorder. Having found that there was no aggravation of the preexisting low back condition, it remains for consideration whether a separate injury or disease of the low back was otherwise incurred in service. We note here that the veteran is now claiming that he injured his back when he fell down several steps during a surprise fire drill in basic training. First of all, the service medical records, which are quite detailed, contain no reference to any such injury. To the contrary, service medical records show that the veteran attributed his back complaints to marching, bending and lifting. In fact, the first mention of any such injury by the veteran was made at the time the veteran filed his claim for service connection in December 1991, more that twelve years after discharge from service. Under the circumstances, we do not find the veteran's statements or testimony regarding such a separate injury to be credible. Moreover, even if we were to assume that he did suffer a fall in service, the lack of a continuity of symptomatology for several years after service would nevertheless lead to the conclusion that no residual disability resulted from such an injury. In sum, we are also unable to find that a preponderance of the evidence is for a finding that the veteran suffers from a chronic low back disability which was related to any separate injury in service. ORDER The appeal is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 EUGENE A. O'NEILL 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.