Citation Nr: 0006060 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 98-03 215 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M. E. Larkin, Associate Counsel INTRODUCTION The veteran served on active duty from January 1955 to January 1958. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating action of the Newark, New Jersey Regional Office of the Department of Veterans Affairs (VA). The veteran currently resides within the jurisdiction of the Houston, Texas Regional Office (RO). In December 1999, the veteran testified at a personal hearing before the undersigned Member of the Board sitting at the RO. A transcript of that hearing is associated with the record. FINDINGS OF FACT 1. There is no competent medical evidence of a nexus between the veteran's currently demonstrated back disorder and any in-service disease or injury. 2. There is no competent evidence of aggravation of a preexisting back disability in service. CONCLUSION OF LAW A well-grounded claim of service connection for a lumbar spine disorder has not been presented. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background The report of a January 1955 enlistment physical examination included a normal clinical evaluation of the spine and was silent for any pertinent defects or diagnoses. A careful review of the service medical records reveals that in July 1955, the veteran reported that he had pulled some muscles in his back while playing basketball. It was noted that the veteran had suffered acute low back pain following exercise and the assessment was that of lumbar sprain. He was prescribed a course of heat and exercise treatments, which were completed that same month. In April 1956, the veteran presented with complaints of low back pain of one year duration. X-ray studies revealed a congenital anomaly which was "arbitrarily chosen" to be designated as partial sacralization of the left side of the fifth lumbar segment. The remainder of the examination was considered essentially negative. It was noted that sacralization may be associated with an insidious onset of low back pain, presumably due to abnormal mobility. Additional studies were recommended for further evaluation. Those studies were undertaken in May 1956 and the examination was considered to be "essentially negative." It was noted that most of the tenderness complained of by the veteran was over the left sacro-iliac area. He was prescribed a back brace. A September 1956 entry noted that the veteran was prescribed physical therapy for his back. A May 1957 chart entry noted that the veteran was seen for recurrent lumbosacral strain secondary to an anomaly at the lumbosacral junction. The veteran was instructed to wear lumbosacral support intermittently and use heat and medication for acute episodes. The report of a November 1957 separation examination noted a normal clinical evaluation of the spine, but included a diagnosis of deformity, congenital joint lumbosacral partial fusion, L5 to S1. Post-service medical records include treatment reports from numerous physicians, both VA and private, who treated the veteran for various complaints, including back pain. In November 1988, the veteran underwent surgical repair of a torn left quadriceps tendon, incurred when he slipped while running across wet grass. Medical records referable to that incident are silent for any complaints or findings pertaining to the back. Additional medical records detail treatment afforded the veteran following work-related accidents in October 1994, July 1995 and January 1996. A November 1994 VA chart extract noted that the veteran, a VA employee, reported injuring his back at work in October 1994. He reported feeling low back pain which radiated to his legs. The assessment was that of acute exacerbation of chronic low back pain. A November 1994 chart extract from a private orthopedic practice included the veteran's report of the injury sustained in October 1994. The veteran stated that, while moving chairs at work, he attempted to catch a chair thrown to him by a co-worker. In doing so, he reached in front of him, twisted and felt a sharp pain across the low back. Past medical history was considered significant only for a previous left quadriceps tear in 1988. An August 1995 report and evaluation prepared by a private physician noted that the veteran had been seen for a back injury suffered at work in July 1995. The veteran reported that he bent to lift a patient and felt pain from his neck, down his lower back. Past medical history was noted to include 1986 and 1994 injuries to the back. The diagnostic impressions included acute cervical sprain and acute lumbar sprain, rule out disc herniation, with radiculitis. The veteran was afforded a VA examination in November 1995 at which time he reported that he had injured his back playing basketball in 1956. He was reportedly given a brace at that time and used it intermittently. The veteran also reported that he injured his knee when he slipped on wet grass; however, he believes he fell because of back pain. Physical examination revealed no vertebral body, disc space, sacroiliac joint or paravertebral muscle tenderness or spasm. The veteran had pain on straight leg raising to 90 degrees bilaterally; however, the pain was not considered sciatica. The diagnosis was that of chronic low back pain without sciatica. There was a possibility that this was secondary to degenerative joint disease. An October 1996 report, prepared by a private physician in connection with a worker's compensation claim, noted that the veteran had been referred for an independent medical evaluation of injuries sustained in a work-related accident in January 1996. Based on a history obtained from the veteran and a review of the "significant" records which accompanied the veteran, the physician reported the history of the veteran's injury. While employed by VA as a physical therapist, the veteran fell, injuring his back and fracturing his left wrist. Past medical history was considered significant only for the 1988 quadriceps repair. Following physical examination, x-ray studies and a review of medical records dated subsequent to the January 1996 incident, the diagnostic impressions included degenerative lumbar spinal stenosis with left lumbar radiculopathy. The physician commented that that condition "clearly antedated" the January 1996 injury; however, those symptoms were aggravated by that injury. A November 1997 statement from another physician noted that the veteran had recently been evaluated in connection with the January 1996 injury and certain medical records were reviewed. The veteran reported that he had injured his back multiple times "at work" in the past, most recently in January 1996. Following physical examination and a review of diagnostic tests, the impression was that the veteran had suffered a lumbar strain as a result of falling while at work in January 1996. The diagnosis was considered to be "clearly related" to that fall, as well as an aggravation of a pre-existing chronic lumbar strain. In numerous statements, both written and offered as testimony at the December 1999 personal hearing, the veteran has reiterated his claim that his current back condition is related to service. He maintains that he injured his back during service and continued to experience back pain after service. The veteran further testified that, given his background as a physical education major and physical therapist, he was able to treat himself and did not have to seek outside medical treatment. II. Analysis The threshold question to be answered in the veteran's appeal is whether he has presented evidence of a well-grounded claim. If not, his application for service connection must fail, and there is no further duty to assist him in the development of his claim. 38 U.S.C.A. § 5107 (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). In fact, the United States Court of Appeals for Veterans Claims (Court) has held that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Although a claim need not be conclusive, it must be accompanied by supporting evidence in order to be considered well grounded; an allegation is not enough. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Generally, a well- grounded claim requires (1) medical evidence of a current disability; (2) medical, or, in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The evidentiary assertions by the appellant must be accepted as true for purposes of determining whether the claim is well grounded, except where the claim is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19 (1993). When the issue involves a medical question of diagnosis or causation, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). Statements and testimony from lay witnesses or the appellant in this regard are not sufficient to establish a plausible claim as they are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In essence, the veteran contends that his current back disorder is related to an injury which was incurred in service. While the veteran has experience as a physical therapist, the Board finds that there is no indication in the record that the veteran possesses the medical expertise required to render an opinion as to causation. See Espiritu, supra. Thus, such lay assertions are beyond the veteran's expertise (see King, supra), and the Board must look to other evidence of record to determine whether he has presented a well-grounded claim of service connection. In general, service connection may be established for a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a pre- existing injury or disease in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). For the purposes of 38 U.S.C.A. § 1110, every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities or disorders noted at the time of entrance on active duty, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and was not aggravated by such service. 38 U.S.C.A. § 1111. The Board notes that the back disorder detected in service, designated as partial sacralization of the left side of the fifth lumbar segment, was not noted on the entrance examination, and so the presumption of sound condition attaches. However, the presumption is rebutted by clear and unmistakable evidence that the condition existed before entrance: the physicians who identified it in service explained that it was a congenital, developmental anomaly. While there is evidence of a present back disability, there is no competent evidence relating that condition to service. Regarding the veteran's own assertions that his current back condition is related to service, the Board points out that, as a lay person, he is not competent to offer a medical opinion. See Grottveit; Espiritu, supra. Although the service medical records include complaints and treatment referable to the veteran's back, the Board notes that that treatment formed a basis for the finding that the veteran had a congenital back disorder. The complaints of back pain noted after playing basketball resulted in an assessment of lumbar sprain which the examining physician characterized as "acute" low back pain. The veteran was prescribed a course of treatment that was apparently completed satisfactorily over a short period of time. Subsequent entries within the service medical records noted that the veteran was seen for recurrent lumbosacral strain secondary to a back anomaly. The only defect noted on the separation examination was a congenital deformity. Post-service medical records detail treatment for the veteran's back condition and include records referable to several work-related back injuries. There is no indication within those records which relates the symptoms and manifestations of a back disability to an injury in service. The etiology of the documented back symptoms appear to be related to the post-service injuries. With regard to whether the preexisting condition was aggravated in service, the law provides that a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). In this case, the Board notes that the veteran's service medical records do contain records reflecting a course of treatment of a back problem in service; however, the medical evidence prepared at that time indicates that the condition treated was secondary to a congenital defect identified as partial sacralization of the left side of the fifth lumbar segment. The medical records do not report that the symptoms and manifestations of the veteran's preexisting condition had increased in severity during service but, instead, they merely report ongoing complaints regarding what was characterized as a chronic problem. The Board finds that there is no support for a conclusion that the preexisting condition increased in severity during service. Accordingly, the presumption of aggravation does not attach. Verdon v. Brown, 8 Vet. App. 529 (1996). Based on the foregoing, the Board concludes that the medical evidence supports a finding that the veteran had a congenital back defect, that is, partial sacralization of the left side of the fifth lumbar segment in service, and that it was not aggravated by service. In addition, absent competent medical evidence which relates the veteran's present back disability to service, the Board concludes that the veteran has not met his burden of submitting a well-grounded claim of service connection. See Caluza; Savage, supra. In making this determination, the Board has considered the veteran's hearing testimony. While his testimony is considered credible insofar as he described his beliefs concerning the merits of his claim, as noted earlier, he is not competent to testify to medical diagnosis or etiology. Finally, the Board has considered the "benefit of the doubt" doctrine: however, as the veteran's claim does not meet the threshold of being well grounded, a weighing of the merits of the claim is not warranted and the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER As a well-grounded claim has not been presented, service connection for a lumbar spine disorder is denied. D. C. Spickler Member, Board of Veterans' Appeals