BVA9508142 DOCKET NO. 93-19 155 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active military duty from January 1968 to January 1970. In a September 1985 decision, the Board of Veterans' Appeals (Board) denied the claim of entitlement to service connection for a back disorder. Since that time, new and material evidence (including the independent medical opinion dated in February 1995) has been received which is sufficient to reopen the claim. The Board will, therefore, consider the claim of entitlement to service connection for a back disability on a de novo basis. The Board finds that, because service connection for a back disability will be granted in this decision, the veteran will not be prejudiced by the Board's de novo determination of the issue. See Bernard v. Brown, 4 Vet.App. 384, 392-395 (1993). After an October 1993 personal hearing, the Board obtained additional medical evidence. In accordance with the provisions of Thurber v. Brown, 5 Vet.App. 119 (1993), the representative was provided, in March 1995, with a copy of this additional medical document. In the same month, the representative submitted a response to the Board's letter. The representative's response has been incorporated into this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the regional office (RO) committed error in denying his claim of entitlement to service connection for a back disability. At a March 1993 personal hearing at the RO and at an October 1993 personal hearing before a member of the Board in Washington, D.C., the veteran testified that he did not injure his back in the 1967 preservice automobile accident. RO Hearing Transcript at 2-4, 15-16 and Board Hearing Transcript at 3-5, 14-15. He also testified that he first injured his back during service in September 1969 when he attempted to move a wooden crate and to pick up papers. According to his testimony, while attempting to complete these tasks, he began to experience shooting pains in his back. RO Hearing Transcript at 4-5 and Board Hearing Transcript at 5. The veteran testified that, during service, he continued to experience back pain and pain shooting down his left leg and received treatment for his back problems. According to his testimony, he was put on physical profile and remained on profile for the duration of his active service, and he took medication even at the time of his discharge from service. RO Hearing Transcript at 6, 8 and Board Hearing Transcript at 5. Furthermore, he testified that, after service, he continued to experience back pain, shooting pain, numbness in his foot, and a pins and needles sensation; that he slipped and fell in 1982; that his service-related back condition predisposed him to this fall; and that he underwent two surgeries on his back which were approximately three months apart (the first surgery took place in 1982, and the second surgery occurred in 1983). RO Hearing Transcript at 9-10, 12 and Board Hearing Transcript at 8-10, 15. He also testified that he currently cannot sit or stand for long periods of time, that he experiences constant back pain, and that he wears a fiberglass brace every day. RO Hearing Transcript at 14-15 and Board Hearing Transcript at 11. Consequently, the veteran asserts that he is entitled to service connection for a back disability. 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. 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 evidence warrants the grant of service connection for lumbosacral strain with disc herniation. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained insofar as possible. 2. Lumbosacral strain was first shown in service, and disc herniation cannot be disassociated from the lumbosacral strain and service. CONCLUSION OF LAW Lumbosacral strain with disc herniation was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that the veteran has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1994). In the present case, the service medical records show that there were no complaints or findings of a back disorder on entry into service. In September 1969, the veteran was treated for complaints of back pain. Physical examination at that time demonstrated low back discomfort, some spasm, an inability to bend forward, and pain on straight leg raising. Medication was prescribed, and the veteran was referred to the orthopedic clinic on the following morning. At the orthopedic clinic, examination of the veteran's back showed full range of motion, no spasm, a normal neurological examination, and tenderness in the L4-5 area. X-rays of the veteran's back were normal. The diagnosis of chronic low back strain was made. A P-3 profile was given, and a bed board was prescribed. The Physical Profile recommended no crawling, stooping, running, jumping, prolonged standing or marching, assignment requiring prolonged handling of heavy materials including weapons, overhead work, pull-ups, or push-ups. According to the Physical Profile Record, these conditions were temporary. The Board notes that, according to the report of the October 1969 treatment session at the orthopedic clinic, the veteran reported at that time that the onset of his low back pain was approximately 1967 when he had been involved in an automobile accident. He also reported that no treatment was given, that he had minor injuries since that preservice accident, and that he had experienced no radiation to his legs. The separation examination, which was conducted in November 1969 noted low back syndrome as a defect. In the physician's summary of the "Report of Medical History" dated in November 1969, mild arthritis and occasional low back pain were noted. The claims file does not contain any records of treatment for a back disability between the veteran's separation from service and 1982. However, the veteran has testified that, after his separation from service and prior to 1982, he continued to experience back pain, shooting pain, numbness in his foot, and a pins and needles sensation. RO Hearing Transcript at 9-10, 12 and Board Hearing Transcript at 8-10, 15. The veteran has also testified that he slipped and fell in 1982, that his service-related back condition predisposed him to this fall, and that he underwent two surgeries on his back (one surgery took place in 1982, and the second one occurred in 1983). A review of the claims file indicates that in July 1982, the veteran was treated for lumbar strain and disc space narrowing at the L5-S1 level. In August 1982, one day after slipping and falling, the veteran was hospitalized with acute back pain, pain radiating into his left leg, and difficulty standing. He reported that he had experienced intermittent and recurring chronic back pain since the in-service injury but that, since he had fallen on the day prior to admission and felt a popping in his back, he then began to experience pain and numbness in his left leg for the first time. A ruptured disc was suspected in 1982. Physical examination was generally normal except for positive abnormal findings in the veteran's spine, including scoliosis with positive straight leg raising test, a weakness in his left leg, a decreased left ankle jerk, limitation of motion of the spine, and tenderness in the left sciatic area of the lower lumbar spine. X-rays of his spine demonstrated degenerative arthritis at the last space and a probable disc, and a lumbar myelogram showed large evidence of a ruptured disc. He then underwent a resection of the ruptured disc. According to the hospitalization report, the veteran did well post-operatively and had no complications. He was discharged on approximately the fifth post-operative day with a final diagnosis of a ruptured disc at the L5-S1 level on the left. By January 1983, the veteran was found to have convalesced satisfactorily. He returned to work in November 1982. At the time of follow-up treatment in January 1983, he was having some problems with neuritis, which the examining physician explained was often a common type of problem. The veteran was given anti-inflammatory medication and asked to return for follow-up treatment. Due to complaints of recurrent back and leg pain and numbness and tingling in the leg, the veteran was again hospitalized later that month. During this second hospitalization, a myelogram demonstrated incomplete filling of the left S1 nerve root, possible recurrent ruptured disc, and bulging of the L4-5 disc. The veteran underwent a resection of the disc at the L4-5 level and removal of a loose fragment and additional disc material at the left side of the L5-S1 level. A statement dated in February 1983 from the veteran's parents shows that they were aware that the veteran never had trouble with his back before entering service. They recalled that he was very active in sports in high school. Their opinion was that the veteran's back problems were caused by injuries sustained during his military service. According to a January 1985 letter, James E. McEntire, M.D., who treated the veteran since 1982, explained that in 1983, after a second surgery, the veteran continued to experience increasing pain in his back radiating into his left leg and foot and that, as of 1985, he continued to have intermittent back pain. At the October 1993 personal hearing, the veteran testified that he never told a physician during service that he had injured his back in the preservice automobile accident. Board Hearing Transcript at 16. At that time, the veteran submitted medical records associated with treatment following the 1967 automobile accident and those records show treatment only for pain in the left elbow and distal humerus and abrasions of both knees. Significantly, no complaints or findings of a back disability were noted on these medical records. The veteran has otherwise testified that he currently cannot sit or stand for long periods of time, that he experiences constant back pain, and that he wears a fiberglass brace every day. RO Hearing Transcript at 14-15 and Board Hearing Transcript at 11. After reviewing the claims file, Dr. Andrea Slotkoff, as an independent medical expert (IME), expressed her opinion in February 1995 that, if the veteran's complaints of back pain during service had been the result of a back injury occurred in the preservice automobile accident in 1967, symptoms of significant mechanical low back pain from trauma would have likely occurred at the time of the accident. Dr. Slotkoff pointed out that there is no record of the veteran's complaints of acute back pain at the time of the automobile accident in 1967 and concluded that the veteran's first episodes of back problems likely occurred during service in September 1969. The service medical records, Dr. Slotkoff's opinion, and the testimony given by the veteran in the present appeal, do not constitute clear and unmistakable evidence that a back disability existed before acceptance and enrollment into service and do not, therefore, rebut the presumption that he was in sound condition when he was examined, accepted, and enrolled for service. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304(b) (1994). According to Dr. Slotkoff's February 1995 letter, the service medical records showed that the veteran developed acute lumbosacral strain during service. In addition, Dr. Slotkoff noted that, during the years following service, the veteran described a characteristic pattern of chronic mechanical lumbosacral strain with progressive back pain aggravated by bending or heavy lifting and that, in 1982, he complained of typical chronic symptoms of the syndrome, including leg numbness. Dr. Slotkoff explained that radiographs showed evidence of degenerative disc disease, which could also be present in asymptomatic individuals and that the veteran complained of these symptoms before the event associated with the disc herniation. Dr. Slotkoff noted that the diagnosis of acute disc herniation of L4-5 and L5-S1 was made, that the veteran underwent two surgical resections, and that the treating physician indicated that this disability occurred in relation to a fall. However, as Dr. Slotkoff explained, the veteran stated that he did not actually fall but that he lost his balance and twisted his back. Significantly, Dr. Slotkoff expressed her opinion that either scenario could have led to this back condition, especially in light of the prior injury to this same region. Dr. Slotkoff stated that the veteran had acute lumbosacral strain during service, chronic recurrent lumbosacral strain from service separation to 1982, and acute disc herniation in 1982. According to Dr. Slotkoff's statement, most individuals, even those persons who develop disc herniation, initially recover fully from acute lumbosacral strain. However, a fewer proportion of such individuals subsequently have chronic recurrent exacerbations of back pain and sciatica. Significantly, with regard to the veteran in particular, Dr. Slotkoff expressed her opinion that his post-service chronic recurrent symptoms of lumbosacral strain were likely related to the initial episode of acute lumbosacral strain. Moreover, Dr. Slotkoff explained that, as in the veteran's case, most disc herniations are preceded by recurrent episodes of back pain and/or sciatica. She stated that risk factors for herniation included twisting and other repetitive motions that occur in the occupational setting, and that, although the average duration of preoperative back symptoms in patients undergoing surgery for disc herniation is three years, the length of time may be greater in the some patients. In the present case, however, Dr. Slotkoff stated it cannot be determined if the back pain and sciatica that occurred in 1969 predisposed the veteran to subsequent disc herniation thirteen years later. She explained that it is unknown if the prior injury to the low back may have disrupted surrounding disc fibers, thereby facilitating disc rupture from minor trauma, particularly in light of the veteran's chronic back symptoms. After a careful review of the evidence, the Board concludes that service connection is warranted for lumbosacral strain since it is recognized as having begun during service and continuing from that time. As to the subsequent disc herniation, the IME observed that the veteran had ongoing signs and symptoms that preceded most disc herniations. She also acknowledged that preoperative back symptoms may be greater than 3 years in some patients. The law specifically states that, in a claim for service connection for a disability, if either the evidence supports the claim or is in relative equipoise, service connection for that disability must be granted. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Although it is not totally conclusive as to whether the 1982 disc herniation is causally related to the back problems shown during service, the evidence, which contains symptoms evidencing disc disease prior to the event associated with disc herniation, is at least in equipoise. Therefore, in the present case, service connection for lumbosacral strain with disc herniation must be granted. ORDER Service connection for lumbosacral strain with disc herniation is granted. M. SABULSKY 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.