BVA9503982 DOCKET NO. 93-07 210 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michele M. Florack, Associate Counsel INTRODUCTION The veteran served on active duty from October 1990 to March 1991. He also had a period of active duty for training from September 1984 to February 1985. The issue of entitlement to service connection for hypertension with headaches is addressed in the remand portion following this decision. It is further noted, however, that the veteran indicated, in correspondence of October 1992, that he had experienced unusual headaches during service in the Persian Gulf. In the VA Form 1-646, the veteran's representative pointed out that the veteran's headaches, which have been considered to be associated with his hypertension, could be related to exposure to chemicals or harmful substances while serving in the Middle East. This issue has not been developed for appellate consideration and is not inextricably intertwined with the issues on appeal. It is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his pre-existing back condition was aggravated by lifting, carrying heavy packs, bumpy rides in jeeps and other activities during his Persian Gulf Conflict service. He claims to experience more pain and limitation of normal functions as a result of his service. 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 supports a grant of service connection for a low back disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO. 2. The veteran's pre-existing low back disorder increased in severity as a result of active service. CONCLUSION OF LAW The veteran's low back disorder, classified as postoperative residuals of herniated nucleus pulposus, L3-4, was aggravated in wartime service. 38 U.S.C.A. §§ 1110, 1153 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds initially that the veteran's claim for service connection for a low back disorder is "well grounded" or plausible within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). In that regard, the Board finds that the facts relevant to this claim have been properly developed and that the statutory obligation of the VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103, 3.159 (1994). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1994). 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 (West 1991); 38 C.F.R. 3.306(a) (1994). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during wartime service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(b) (1994). As a result of an injury at work prior to service, the veteran had surgery to repair a herniated nucleus pulposus, L3-4, of the left side in May 1990. The veteran claims that before he was released from his doctor to return to his regular employment, he was transferred from army reserve duty to active service in October 1990. The veteran alleges that he injured his back on several occasions while in service due to hiking with a pack or lifting. The veteran's service medical records reflect that in November 1990, he complained of back pain and weakness in his left leg after hiking 5 miles with a full pack. The medical officer recommended no lifting or carrying of over 15 pounds for the veteran. In early December 1990 the veteran again had complaints of chronic low back pain; bedrest and no lifting over 10 pounds for 10 days were prescribed. In late December 1990, he was evaluated for complaints of low back, buttock, and proximal thigh pain. On examination, there was tenderness at L2-3 and positive straight leg raising. On further examination by an orthopedist, the impression was low back pain, but "nothing acute" was found. Back exercise or physical therapy was recommended. On examination for separation in March 1991, a diagnosis of low back pain and left sciatica status post surgery was noted. Private magnetic resonance imaging (MRI) performed in July 1991 suggested no recurrent or residual disk at L3, but a far lateral focal protrusion at L4. The veteran was seen by his private surgeon later in July 1991, who noted that X-rays showed no recurrence of disc pathology at L3-4, but mild protrusion laterally at L4-5. The veteran reported leg pain when going up or down stairs. The surgeon found obvious atrophy of the veteran's left thigh, with a 4-5 cm. decrease in size over the right thigh. There was an absent patella reflex of the left and +2 on the right. The surgeon's impression was that the weakness and atrophy were a result of the L3-4 disc. He indicated that the veteran would continue to have difficulty climbing stairs, as well as standing for more than two hours without rest. The veteran submitted a statement from W. A. Brookshire, dated in December 1991, to the effect that indicated he witnessed the veteran fall and injure his back while on guard duty in service, in or around January 1991. In a letter from the veteran's wife dated June 1992, she indicated that the veteran was unable to perform sexually as he had prior to service because of his back pain. The veteran testified at his personal hearing in July 1992 that he did not experience back pain after his May 1990 surgery prior to entering service in October 1990. He testified that his low back and related leg pain made it difficult for him to perform normal tasks at his employment. A report from a private chiropractor J. W. Barbaree, D.C., dated in August 1992, indicated that the veteran was being treated for neurospinal compression syndrome of L5-S1 with radiculitis. When all the evidence is assembled, the VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). The veteran's testimony, supported by the lay statements of his wife and W. A. Brookshire, is credible and consistent with the clinical record. The service medical records show that the veteran reported low back pain on various occasions, sometimes relating it to assignments that involved lifting, marching, or carrying. Private medical records dated several months after separation show low back pathology, including neurological deficits not previously shown in the record. There is no evidence that the increase in disability shown is due to the natural progress of the disease. Therefore, affording the veteran the benefit of the doubt, the Board finds that the evidence supports the determination that the veteran's pre- existing low back condition increased in severity during active service. Therefore, service connection for the low back disorder is warranted, based on aggravation. ORDER Service connection for a low back disorder, classified as postoperative residuals of herniated nucleus pulposus, is granted. REMAND The veteran's claim for service connection for hypertension based on aggravation is also "well grounded". 38 U.S.C.A. § 5107(a) (West 1991). The VA therefore has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103, 3.159 (1994). That duty includes obtaining medical records and medical examinations where indicated by the facts and circumstances of the case. Littke v. Derwinski, 1 Vet.App. 90 (1990). The veteran claims that he has had hypertension since 1986, but that it became worse while in active service. He claims to have severe and frequent headaches associated with the elevated of his blood pressure. However, the record does not provide a sufficient basis on which to determine the level of disability associated with his hypertension prior to his entrance into service. It is noted that blood pressure readings tend to fluctuate; the Board finds that the single blood pressure reading taken at entrance examination in October 1991 is not sufficient to identify the pre-service severity of his hypertension. Billing records obtained from Jefferson Memorial Hospital show that the veteran was treated for hypertension (Vasotec) in August 1986, but the actual treatment records have not been obtained. To ensure that VA has met its duty to assist the appellant in developing the facts pertinent to the claim, the case is REMANDED to the RO for the following development: 1. The RO should obtain the names and addresses of all medical care providers who have treated the veteran for hypertension since 1986. This list should include Jefferson Memorial Hospital, where the RO previously was unsuccessful in obtaining the veteran's treatment records. After securing the necessary releases, the RO should obtain these records. 2. The veteran should then be scheduled for a VA examination by a cardiologist to determine the current extent and severity of his hypertension. The examiner should be provided the claims file, including any information obtained pursuant to the above- requested development and the service medical records, for review prior to the examination. The examiner should then be asked to comment as to whether the veteran's pre-existing hypertension underwent a clinically identifiable increase in severity as a result of his service. The examiner should be asked to provide the rationale for any opinion expressed. The RO should then review the claim for service connection for hypertension based on aggravation. If the veteran's claim remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review, if in order. The purpose of this REMAND is to obtain clarifying data. The Board intimates no opinion as to the ultimate outcome of this case. V. L. JORDAN 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).