Citation Nr: 0006246 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 95-35 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for the residuals of a low back injury and, if so, whether the claim may be granted. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Associate Counsel INTRODUCTION The veteran had active service from August 1985 to February 1990. Initially, the Board of Veterans' Appeals (Board) notes that this matter was previously remanded for further medical development in December 1997, and that the requested action was carried out to the extent possible. Thereafter, upon the return of this matter to the Board, the Board sought and obtained an opinion concerning a question involved in the veteran's appeal, and furnished a copy of both the referral and opinion letter to the veteran's representative in September 1999. In September 1999, the Board advised the veteran's representative that the Board was providing 60 days in which he and the appellant could submit additional evidence if they chose to do so, and the record further reflects that in October 1999, the veteran sought an extension of an additional 60 days in which he could provide additional evidence in support of his claim. This request was granted by the Board in November 1999, and in further support of his claim, the veteran subsequently submitted a November 1999 medical examination report and additional evidence and contentions in January 2000. The Board finds that the claim on appeal is now ready for appellate consideration. Finally, the Board notes that the claim for service connection for residuals of a low back injury was originally developed on appeal on the basis of whether new and material evidence had been submitted to reopen the claim which had been previously and finally denied by a rating decision in 1992. Therefore, the Board finds that it is still initially required to review this issue on appeal on the basis of whether new and material evidence has been submitted to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed.Cir. 1996). FINDINGS OF FACT 1. An application to reopen a claim for service connection for residuals of a low back injury was denied by a February 1992 rating decision which was not appealed. 2. The evidence received since the February 1992 rating decision pertinent to the claim for service connection for residuals of a low back injury bears directly and substantially on the specific matter under consideration, is neither cumulative nor redundant, and is, by itself or in combination with other evidence, so significant that it must be considered in order to finally decide the merits of the claim. 3. The veteran has chronic residuals of an inservice low back injury. CONCLUSIONS OF LAW 1. The February 1992 rating decision which denied an application to reopen a claim for service connection for residuals of a low back injury, is final. 38 U.S.C. § 4005(c) (1988); 38 C.F.R. § 19.192 (1991). 2. New and material evidence has been submitted since the February 1992 rating decision, and the claim is reopened. 38 U.S.C.A. § 5108, 7105 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.104, 3.156, 20.1103 (1999). 3. Residuals of a low back injury were incurred in active service. 38 U.S.C.A. §§ 1131, 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303(d) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background Following notification of an initial review and adverse determination by the regional office (RO), a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final and is not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.104(a); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Following the timely filing of a notice of disagreement, the RO shall prepare and issue a statement of the case, after which the claimant will be afforded a period of sixty days to file the formal appeal. 38 U.S.C.A. § 7105. Except in the case of simultaneously contested claims, a substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b) (1999). A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs (VA) as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C.A. § 5104 (West 1991). A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 3.105 of this part. 38 C.F.R. § 3.104(a). A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected as prescribed in Rule 302 (§ 20.302 of this part). 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In Evans v. Brown, 9 Vet. App. 273, 285 (1996), the United States Court of Appeals for Veterans Claims (previously known as the United States Court of Veterans Appeals prior to March 1, 1999, hereafter "the Court") held that "in order to reopen a previously and finally disallowed claim . . . there must be 'new and material evidence presented or secured' . . . since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits." If new and material evidence has been received with respect to a claim which has become final, then the claim is reopened and decided on a de novo basis. 38 U.S.C.A. § 5108. New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially on the specific matter under consideration, which is neither cumulative nor redundant and which is, by itself or in combination with other evidence, so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). Service connection may be established for a disability resulting from disease or injury incurred or aggravated by active service. 38 U.S.C.A. § 1131. Regulations provide that service connection may be granted for any disability diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The regulations further expressly provide that, for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at that time as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When 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). Moreover, when all the evidence is assembled, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The service medical records reflect that in July 1988, the veteran was seen and treated for chronic back pain. At that time, the veteran related that he experienced low back pain due to trauma caused during sleepwalking. Objective findings revealed, in pertinent part, that the veteran demonstrated discomfort when leaning to the rear and from side to side. The assessment was lower back strain. October 1988 and February 1989 entries reveal that the lower back pain was severe in that it interfered with the veteran's normal routine and that the veteran required assistance from his spouse. In February 1989, the diagnosis included mechanical low back pain. In March 1989, it was noted that the veteran might have injured his back while skiing. On physical examination, the veteran experienced pain when twisting and sitting. It was noted that the pain was located in the lower right area and that sitting caused the pain to radiate into the right buttocks and from the right leg to the knee. The assessment was increased low back pain. Additional service medical records dated in March 1989 reflect that the veteran demonstrated limited range of motion with complaints of pain while bending back. These records also reflect that the veteran was prescribed Tolectin, that the veteran had been profiled, and that the veteran was provided physical therapy and treatment. It was noted that the physical therapy helped relieve the spasm and the severe pain, but that with full range of motion, the veteran continued to experience pain. In June 1989, questionable low back injury with skiing and lifting was noted. A physical therapy consultation dated in June 1989 provided an assessment of paraspinal spasm of the L5 area of the spine. X-rays in July 1989 were interpreted to reveal no significant abnormality, and an assessment of low back pain was made at the beginning of August 1989. The report of a separation examination dated in November 1989 included a history of recurrent back pain. The examiner essentially noted that the reported back discomfort was without sequelae. When the veteran was examined in January 1990 for separation, there were no complaints, findings, or diagnoses pertaining to a lower back disability. When examined by the VA in April 1990, the veteran related a history of back pain relating to service. Since that time, the veteran indicated that he experienced intermittent back pain particularly when lifting excessive weight. Additional complaints included back strain and low back throbbing and aching. Reference was made to the buttocks. The veteran indicated that his back was currently asymptomatic. No numbness, tingling, or weakness were noted. An orthopedic examination of the back revealed good range of motion of the back. Findings were negative for spasm or tenderness. There was full straight leg raising. It was noted that the veteran did not have a history of back injury. In April 1990, the veteran was also provided with a neurological examination, at which time the neurologist indicated that the veteran had a history of intermittent back pain. The examiner indicated that the veteran's reported inability to lift more than 25-30 pounds might be related to the residuals of hernia surgery. X-rays of the lumbosacral spine associated with this examination were interpreted to reveal mild alteration of the lumbar curvature. The neurologist indicated that there was no evidence of neurological damage or nerve impingement. The record includes treatment records of Chiropractor D. who saw the veteran in July 1990. Subjective complaints at this time included back pain, sharp pain rising from a sitting position, and pain with reclining and walking. The veteran attributed the onset of his back discomforts to service. X- rays of the spine dated in July 1990 were interpreted to reveal pathology involving curvature of the lumbar spine and the right ilium. No intervertebral disc syndrome or disc bulging was noted at this time. The veteran's claim for service connection for a low back disability was originally denied by the RO in July 1990 based on the absence of neurological or orthopedic findings on examination. The veteran was given written notification of that determination. Following a notice of disagreement and issuance of a statement of the case, the veteran did not file a Substantive Appeal in regard thereto. In February 1991, the veteran provided testimony at a personal hearing before a hearing officer. At that time, the veteran related the service history of his back disability and indicated that subsequent to service, he continued to experience low back problems. In February 1991, Chiropractor D. elaborated that the July 1990 treatment was for lumbar neuritis and sciatic neuritis, and further opined that the veteran was partially disabled, that his disability was permanent, and that he could expect pain and stiffness in the future. The veteran was restricted from prolonged or repeated bending or lifting more than 30 pounds. This statement does not refer to July 1990 magnetic resonance imaging (MRI) findings of a possible disc bulge of the lumbar spine at L4-5. A private medical care record dated in April 1991 reflects that while the veteran was working he heard something pop. The veteran related a history of having a slipped disc and pinched sciatic nerve. It was noted that X-rays taken in July 1990 were interpreted to reveal a questionable slipped disc at the L5-S1 areas of the spine. The veteran's service history of his back problems was noted. On physical examination, it was noted that the veteran experienced difficulty bending down. The diagnosis was lumbosacral pain, rule out disc disease. The report of a VA compensation and pension examination in April 1991 reflects continued complaints of low back pain. The veteran also related a service history of low back problems. The examiner reviewed the X-rays of the back taken in April 1990, and noted that there was no alteration of the intervertebral disc spaces, no evidence of arthritic changes in the lower back or sacral iliac joints, and no degenerative or structural changes. Based on the absence of any positive physical findings or neurological findings of the lower back, the examiner indicated that he could not render an orthopedic diagnosis. The examiner noted occasions of intermittent lower back problems; however, the examiner determined that there were no accompanying residual changes that could be determined as a result of the examination or from the X-rays of record. A claim for service connection for service connection for a low back disorder was denied by a hearing officer decision in October 1991, and no notice of disagreement was filed with this decision. The record includes several statements and medical reports of Dr. D. regarding the veteran's back disability. These records, which date back to December 1991, reflect that the veteran incurred a back injury in August 1991, when he lifted a tank at his place of employment. A spirometric evaluation dated in December 1991 revealed a low probability of a large disc herniation or disc injury and an overall pattern consistent with either a previously injured disc with subsequent degeneration and loss of tension resulting in unstable rotation or an inherently loose disc with rotation instability, which could result in a bulging disc with some compression of the nerve root. In January 1992, Dr. D. elaborated on the August 1991 injury stating that when the veteran moved to the right he felt a popping sensation in his back and that the veteran felt an onset of pain the following day. The clinical impression was L5-S1 facet joint injury with resulting tenderness at the left posterior superior iliac spine which the doctor indicated was causing relative restriction at the L5-S1 level on lateral bend. Dr. D. also determined that the veteran most likely had some underlying irregularities in the facet joint surfaces at multiple levels. A possible internal disc injury at the L2-3 level was noted. Other than the L5-S1 joint on the left, Dr. D. stated that there was apparently no acute or hyperacute injury to the joints, but added that irregularities and increased mobility at the vertebral joints would render the joints subject to recurrent trauma. Dr. D. opined that the veteran's current disability was attributable to the August 1991 injury and that it was an exacerbation of a preexisting condition. He added that the preexisting disability was not in and of itself a cause of the veteran's back pain. Thereafter in a February 1992 rating decision, the RO denied an application to reopen the claim for service connection for a low back disability, and following a notice of disagreement and the issuance of a statement of the case, the veteran again did not file a timely Substantive Appeal. The last final denial under Evans v. Brown, supra, was the rating decision of February 1992. In February 1992, the RO determined that the evidence failed to support the veteran's claim that a back injury was incurred in service and that the veteran's physician related the veteran's back disability to an injury that occurred after service in August 1991. In addition, the RO found that the evidence remained negative for a chronic back disability incurred in service. Since the February 1992 rating decision, additional pertinent evidence has been received, which includes additional VA medical examination and treatment reports and records, additional hearing testimony before a member of the Board, additional private examination and treatment reports and records, and an independent medical examination report. In subsequent statements from April 1992, Dr. D. indicated that based on his review of the record and the veteran's history, the veteran first injured his back while in service in July 1988. He also noted that the veteran had had subsequent flare-ups. He further found that the veteran had another significant injury to the back in August 1991. Dr. D. concluded that his examination of the veteran, the history obtained, and supporting clinical findings, demonstrated an L4-5 disc injury with rotational instability and that the veteran's then-current pain syndrome and impairment were due to both major injuries. In August 1993, Dr. D. indicated that the veteran incurred an injury to his back in September 1991 when lifting bottles, and that the veteran experienced an exacerbation of the pain while sitting on his porch. Dr. D. noted that the exacerbation in September 1991 would not have occurred but for the August 1991 initial injury. The doctor further noted that the veteran had a service injury and that the service records were very sketchy. The doctor indicated that 90 percent of the veteran's back disability was attributable to the August 1991 injury and 10 percent was attributable to the previously existing service injury. The additional evidence of record also includes statements of attorneys dated in January 1994 involving the veteran's workman's compensation claim. Essentially, these statements summarize the evidence related to the veteran's back disorder and reflect that the veteran injured his back after service while working, and that he received workman's compensation. Notably, a January 1994 statement indicates that a hospital emergency room report dated a day after the August 1991 incident revealed acute lumbar back strain and that the veteran came under the care of Dr. H. S. in August 1991 who indicated that he was disabled with findings of back pain, muscle spasm, and decreased straight leg raising. It was noted that Dr. D. had begun treating the veteran in January 1992. A November 1994 medial report from Dr. D. reflects that a MRI from November 1993 revealed a small L5-S1 herniation which was sufficient to trigger mechanical problems in the lower back. A January 1995 orthopedic consultation with Dr. I. S. revealed that the veteran's complaints consisted of lower back radiating pain and right flank radiating pain. The veteran's problems reportedly began in 1988 when he fell into a mine hole while in the Army. The veteran noted problems at that time with pain in the lower back which radiated into the lower extremity. The veteran reported sustaining another injury in 1991 while moving and rotating soft drink premixed tanks. He felt the sudden onset of lower back pain exacerbated and pain down into the left lower extremity. Pain had subsequently progressed into the right flank area. Physical examination revealed mild tenderness over the L4-S1 region with some limitation of forward flexion, extension and lateral bending. Straight leg raising was also noted to aggravate his lower back. Neurological examination revealed full motor power in all muscle groups, normal sensory examination and deep tendon reflexes, and X-rays of the lumbar spine revealed some loss of disc space height at T11-12 and T12-L1, with a left thoracolumbar scoliosis measuring 12 degrees from T9 to L1. A MRI scan from November 1993 was interpreted to reveal slight disc bulge at L4-5. In his impression, the doctor indicated that the problem of pain in the lower lumbar region was centered over the L4 to S1 region with referred pain into the lower extremities and opined that the right flank pain might be related to a problem at L4-5 and that the L4-5 level was likely the cause of the lower lumbar pain. In June 1997, Chiropractor B. indicated that he had been treating the veteran for chronic symptomatic complaints of mid and low back pain radiating into the buttocks and right flank region. It was noted that the veteran related having first injured his back during service in July 1988. Chiropractor B. stated that the service medical records were reviewed and that he had also reviewed all of the medical records, including those from Dr. D. After having reviewed all of the data, he concurred with Dr. D.'s assessment of the impact of the veteran's service-related back problems. During the August 1997 hearing before the Board, the veteran provided testimony consistent with that previously of record with regard to the history of his back disability. The veteran added that at his separation examination, he inadequately advised regarding further studies and testing for his back, and that as a result, the VA examiner in April 1990 was influenced by the report of separation examination and failed to find a low back disability (transcript (T.) at pp. 4-7). Pursuant to the December 1997 Board remand, an April 1998 medical examination was conducted for the purpose of determining the etiology of the veteran's low back disability. Studies of the lumbosacral spine were interpreted to reveal mild disc bulging at the L3-4 and L4-5 levels; no significant spinal stenosis was identified, and no significant disc herniation was identified. At the conclusion of the examination, the examiner entered a diagnosis of chronic thoracic and lumbar back pain. The examiner indicated that there was no residual of any traumatic injury, but did note that there was a suggestion of a narrowed disc at T8-9 which he claimed was probably producing symptoms. The examiner opined that it was more likely than not that the veteran's current back condition was not related to a service-connected back injury in 1988. He further opined that he could not detect any residual of an in-service incident which was likely to make the veteran susceptible to a post-service low back injury. An independent orthopedic examination report from August 1999 reflects Dr. G.'s review of medical records and additional significant records, and a summary of the veteran's relevant service history, which includes an injury to the veteran's back while sleepwalking in July 1988 with an assessment of low back strain. Additional in-service back complaints in October 1988 and March 1989 were also noted. Dr. G. also summarized the veteran's post-service back treatment. Finding that there were no objective findings revealed by any imaging studies either before or after service, Dr. G. concluded that he did not believe that there was any likelihood that the current low back pathology had its onset in the service or was otherwise related to low back symptoms therein. He further opined that he did not believe that the low back condition manifested in service had left the veteran susceptible to the post-service low back injury. A November 1999 private medical report from Dr. R. was provided by the veteran in November 1999. This report reflects that examination of the veteran revealed that his symptoms outweighed his physical findings. Examination further revealed excellent flexibility of the thoracolumbar spine. There was also a finding of normal lumbar lordotic and thoracic kyphotic curves. Although there was some reduced rotation and some left sciatic notch pain, there were no neurological abnormalities and no costovertebral (rib motion) dysfunction. The examiner then proceeded to outline the veteran's medical history referring to the back, beginning with his injury in July 1988, and again in 1989, noting that the veteran was still apparently able to ski with these injuries. The post-service injury to the veteran's back was noted as an exacerbation, but licensing affected work as opposed to his back. The impression was D8 to D11 narrowed disc spaces, mild degenerative changes, MRI documented in August 1995, L4-5 bulge per MRI of August 1995, and chronic mid back pain, greater than the low back pain, probably discogenic etiology, no evidence of herniation or stenosis. Dr. R. opined that he would attribute the veteran's lumbar spine/low back a consistently documented problem as 90 percent service-connected injury, 1988 and 1989, and 10 percent nonservice-connected subsequent injury. Dr. R. further opined that the mid thoracic spine problem was related to post-service injuries and developed after service. He went on to comment that the 1991 accident might have incited an exacerbation of the low back and possibly the development of mid back pain, "but I do not have enough documented evidence to the contrary." It is noted that further summary of the veteran's post industrial accident treatment reflects July 1992 assessments of post-traumatic L4 disc injury. II. Analysis Whether New and Material Evidence has been Submitted to Reopen the Claim While this case has been in appellate status, the United States Court of Appeals for the Federal Circuit entered a decision in Hodge v. West, 155 F.3d 1356 (Fed.Cir. 1998) concerning the definition of the term "new and material evidence" found in 38 U.S.C.A. § 5108 (West 1991). In that determination, the Court of Appeals for the Federal Circuit held that the Court in Colvin v. Derwinski, 1 Vet. App. 171 (1991), had "overstepped its judicial authority" by adopting a social security case law definition of "new and material evidence," rather than deferring to the "reasonable interpretation of an ambiguous statutory term established by [VA] regulation." Id. at 1357, 1364. The Court of Appeals for the Federal Circuit further held that the Court's "legal analysis may impose a higher burden on the veteran before a disallowed claim is reopened" as to what constitutes "material evidence" (Id. at 1357, 1360), and remanded the case for review under the Secretary's regulatory definition of "new and material evidence." In Hodge, the Court of Appeals for the Federal Circuit found that the definition of "new and material evidence" applied by the Court under Colvin was as follows: Evidence is 'new and material' if: (i) it was not of record at the time of the last final disallowance of the claim and is not merely cumulative of evidence of record; (ii) it is probative of the issue at hand; and if it is 'new' and 'probative' (iii) it is reasonably likely to change the outcome when viewed in light of all the evidence of record. Id. at 1359 [hereafter Colvin definition]. The Court of Appeals for the Federal Circuit found that part (iii) imposed a higher burden on claimant's than the VA regulatory definition because it: . . . specifically focuses on the likely impact the new evidence submitted will have on the outcome of the veteran's claim; it requires that 'there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both old and new, would change the outcome.' (citations omitted). Id. at 1363. Citing the regulatory history, the Court of Appeals of the Federal Circuit held that: . . . the purpose behind the [VA] definition was not to require the veteran to demonstrate that the new evidence would probably change the outcome of the claim; rather it emphasizes the importance of a complete record for evaluation of the veteran's claim. Id. at 1363. In this case, the RO provided the appellant with the provisions of 38 C.F.R. § 3.156(a) in the May 1996 supplemental statement of the case. Moreover, the Board has reviewed the evidence received since the February 1992 rating decision and, as indicated below, has found that the second medical opinion from Dr. D. of April 1992, the private medical opinions of Chiropractor B. in June 1997, and the more recent opinion of Dr. R. in November 1999, are sufficient to reopen the veteran's claim for service connection for residuals of a low back injury. Accordingly, the Board finds that the claimant has been provided the governing regulatory definition of "new and material evidence," that the RO's adjudication of the claim was consistent with that definition, that this evidence qualifies as "new and material evidence" under this definition, and that it is therefore not prejudicial for the Board to proceed with the adjudication of this claim. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has considered the evidence and contentions received since the February 1992 rating decision and finds that it most importantly consists of the April 1992, June 1997, and November 1999 medical opinions that the veteran's residuals of a low back injury are at least in part related to service. Consequently, the Board finds that the additional evidence and material of record in this case bears directly and substantially on the specific matter under consideration, is neither cumulative nor redundant, and by itself or in combination with other evidence, is so significant that it must be considered in order to fairly decide the merits of the claim. For the limited purpose of determining whether a claim is well grounded, the evidence submitted by and on behalf of the claimant must be presumed to be credible. King v. Brown, 5 Vet. App. 19 (1993). In this case, the 1992, 1997 and 1999 private opinions that the veteran's residuals of a low back injury are at least in part related to the veteran's active service is sufficient to make the veteran's claim well grounded. The Board notes that in a merits determination, however, no such presumption of credibility attaches. Decision on the Merits The veteran waived consideration by the agency of original jurisdiction of the report by Dr. R. in addition to additional evidence that has been proffered by the veteran since the last supplemental statement of the case. He exercised his right to a hearing both before a hearing officer and a member of the Board. Likewise, the opinion of the independent medical expert has been reviewed by the appellant and his representative in accordance with the governing regulatory procedures, and the veteran has supplied his own "independent" medical examination report. While the issue on appeal was more appropriately whether new and material evidence had been submitted to reopen the claim for service connection, the substantive arguments advanced by and on behalf of the claimant have gone not simply to that procedural question, but have also directly addressed the merits of the claim at length. In light of these actions, the Board concludes that it is not prejudicial error for the Board to address the merits of claim without further remand to the RO. Bernard, supra. The Board would further observe that there is no doubt that the veteran has advanced this claim in good faith and, as the referral to the independent medial expert indicates, the Board by no means regards the claim as frivolous. Ultimately, however, the Board is tasked by law to resolve the claim not on the strength of the veteran's subjective belief in the merit of his claim, but on the weighing and evaluation of the objective evidence of record. The Board first notes that while the evidence does reflect post-service treatment for back complaints within one year of separation, none of the treatment afforded the veteran has been found by the Board to pertain to disabilities for which presumptive service connection attaches. There was no diagnosis of arthritis within one year of service separation, and while a chiropractor in a record dated beyond the one year presumptive period seeks to retroactively characterize treatment during the initial post-service period as including treatment for neuritis, this was not supported by contemporaneous medical findings and the Board is not persuaded that such a belated finding by a chiropractor would establish a neurological disorder for the purpose of warranting presumptive service connection for an organic disease of the nervous system pursuant to 38 C.F.R. §§ 3.307, 3.309. Thus, the Board initially finds that the veteran is not entitled to presumptive service connection for his claimed disability. The Board initially observes that for workman compensation purposes the veteran attributed his low back disability to the August 1991 post service industrial injury and now, for VA compensation purposes, to low back injuries in service. Further, the April 1998 VA opinion and independent orthopedic opinion of August 1999 find no relationship between in- service diagnoses and post-service diagnoses. On the other hand, private physicians who have treated the veteran as well as the orthopedic specialist who reviewed the record on the veteran's behalf in November 1999 have concluded that the low back problems documented in service in effect represented the onset of a chronic disability and that the industrial injury in August 1991 constituted an exacerbation of the original pathology. The Board finds that the medical evidence in this matter is in equipoise. Consequently, as the benefit of the doubt is to be resolved in the veteran's favor, service connection for the residuals of a low back injury is granted. The Board notes that the disability allowed is limited to the lumbar spine. 38 U.S.C.A. §§ 1131, 5107(a); 38 C.F.R. §§ 3.303(d). ORDER Service connection for residuals of a low back injury is granted. WAYNE M. BRAEUER Member, Board of Veterans' Appeals