Citation Nr: 0002405 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 98-07 601 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for postoperative residuals of a low back injury. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. K. ErkenBrack, Counsel INTRODUCTION The veteran served on active duty from January 1956 to January 1960. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) at Los Angeles, California. By rating decision in September 1988, service connection was denied for residuals of low back surgeries on the basis that no back disability was shown during active service. The veteran was appropriately notified but did not timely appeal. His request to reopen the claim was received in 1997. The veteran had a personal hearing on his appeal before a hearing officer at the RO in July 1998. FINDINGS OF FACT 1. By a rating decision dated in September 1988, the RO denied entitlement to service connection for residuals of low back surgeries and properly notified the veteran of this determination. He did not appeal. 2. The additional evidence added to the record since the September 1988 RO rating decision is not duplicative of evidence previously on file and, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the claim. 3. The competent evidence of record does not show a nexus between the current residuals of back surgeries and the veteran's military service, including any low back injury sustained therein. CONCLUSION OF LAW 1. Subsequent to the unappealed September 1988 rating decision that denied entitlement to service connection for residuals of law back surgeries, new and material evidence sufficient to reopen the claim was received. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999). 2. The reopened claim for entitlement to service connection for residuals of low back surgeries is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The veteran's service medical records show various complaints, none of which pertains to the back or spine. The spine was normal on the separation examination in January 1960 and no significant or interval history was noted. In his initial claim for service connection filed in 1988, the veteran mentioned a left ankle injury. On a VA examination in May 1988, he reported pain and weakness of the back and gave a history of four back operations, in 1975, 1984, 1986 and 1988. The earliest post-service treatment he reported was in 1975 at Kaiser Permanente. Status post laminectomies, L4-5 and L5-S1, were shown. Status post back surgery, times 4, was diagnosed. In August 1997, the veteran submitted another claim for service connection, claiming, in part, that he had injured his back in 1957 when he fell down a hill while carrying a machine gun. He reported treatment in July 1957 by a corpsman and beginning in 1960 by Kaiser Permanente in Los Angeles. In October 1997, R. R., M.D., a Kaiser Permanente physician reported that the veteran had a history of back pain dating back to approximately 1960, when he injured his back carrying a very heavy machine gun while he was on active duty, and that "according to the patient" he had had episodes of back pain since then. Dr. R. stated that the veteran had first gone to Kaiser Permanent in 1978 for back pain. He did have back surgery, which included a lumbar laminotomy at L4-5 on the right, then L5-S1 on the left in 1988. He also had had back surgery in 1986 due to an acute herniated disk at L4-5 with some paresis and bowel and bladder problems. Dr. R. had seen the veteran since 1986 for chronic lower back pain. Magnetic resonance imaging (MRI) in March 1996 had revealed significant narrowing of the disk space at L4-5 and L5-S1 with post surgical laminectomies. In an October 1997 statement, the veteran reported that after his release from the Marine Corps he had been hospitalized with lower back pain and placed in traction and that the facilities where he was treated had been closed for years and there was no way to get any medical records. A statement dated in November 1997 was received from a former marine who stated that the veteran fell down a hill while carrying a 60-pound machine gun in 1957, during their active service, and sustained an injury of his back and left ankle. He reportedly was attended by a corpsman and taken to a hospital for treatment. Kaiser Permanente records, received in January 1998, date back to 1970 and show initial back complaints in March 1972, when the veteran injured his back from lifting the hood of his car. Severe low back pain with occasional tingling down the right thigh was reported. The impression was back sprain, rule out disc. He was hospitalized in August 1972 for low back pain. He stated that he suddenly developed low back pain after lifting a heavy object. He was not able to walk or stand because of severe low back pain. The diagnosis was acute lumbosacral strain, with posterior facet syndrome to be ruled out. Later in August 1972, he reportedly had been in the hospital for a backache eight days previously but then was seen for a migraine headache. History was recorded of low back pain requiring traction 5 years previously. He had awakened with severe low back pain radiating to the posterior lower extremities. An X-ray of the lumbosacral spine showed possible narrowing of the T12-L1 disc space. A prior X-ray in March 1972 reportedly had been within normal limits. The impression was lumbosacral strain. A neurological examination was negative for any abnormality. A medical consultation report in November 1972 reflects a history of a back injury in an automobile accident in June 1972. The symptoms reportedly cleared satisfactorily. In April 1974, the veteran was seen for low back pain of 2 days' duration. Low back strain was the impression. In July 1974, a back injury a year earlier was noted. He was noted to have recurrent back pain, with his back having "gone out" two days previously. He complained of right sacroiliac pain with radiation down the right posterior thigh. Lumbosacral strain was the impression. In September 1974, a history of back strain a month previously was recorded. The veteran had been treated with traction with no subsequent medication. He stated that his back had snapped out. Low back strain was assessed. In October 1974, he reportedly had an old back injury, possibly industrial. He had been followed for recurrent low back pain. Atraumatic exacerbation of the pain aggravated by movement and radiating down the back of both legs was noted. The impression was recurrent low back pain with possible root involvement. In May 1975, low back pain with right sciatica for the previous four weeks was evaluated and treated. Possible herniated nucleus pulposus on the right L5-S1 was noted. In July 1975, the veteran was seen for a long history of low back pain. He reportedly experienced right leg pain over a period of three weeks after bending over and feeling something snap in his low back. He could barely bear weight on his right leg. Low back scoliosis was indicated. The right hip, thigh and calf were tender on deep palpation. The impression was right S1 radiculopathy secondary to an extruded right disc. History also was recorded that he had developed acute low back strain in 1972 after heavy lifting, which subsided after adequate conservative management. There had been a recent increase in low back pain and several weeks previously, after reaching over for something, he felt a sudden, severe pain in the right leg and foot. He underwent right L5-S1 laminotomy and diskectomy. In August 1978, he was seen for left-sided back pain that started when he was getting out of the shower. He was unable to straighten up. Low back strain was the impression. A medical record of January 1979 shows that the veteran complained of left hip pain radiating to the lower leg and calf muscles. The assessment was lumbosacral strain with neuritis. He was hospitalized in February and March 1979 with a history of several weeks of left lower extremity pain. Radiculopathy, most likely at the L5 level, was diagnosed. In October 1979, he was seen for right hip pain of a week's duration. The impression was probable facet syndrome of the low back. In November 1981, status post L5-S1 herniated nucleus pulposus laminotomy and disc resection in 1975 was noted. It was stated that three months previously, he started to have increased left leg and foot symptomatology. A myelogram revealed a left L5-S1 defect with possible facet hypertrophy. In December 1981, status post left L5-S1 herniated nucleus pulposus was termed resolved. In February 1982, the veteran complained of an acute exacerbation of left leg pain, which had been symptomatic since August 1981. The impression was an acute exacerbation of left L5-S1 herniated nucleus pulposus. In April 1982, it was recorded that he had had back pain for three weeks. Discogenic disease was assessed. In May 1982, he was hospitalized with S1 radiculopathy secondary to L5-S1 herniated disc. A history was recorded of back problems dating back to 1975, when a lumbar disc had been removed. He underwent an L5-S1 laminotomy with decompression of the S1 nerve root and disc excision. In January 1983, he was seen for right leg pain that had developed two days previously. Possible recurrence of herniated nucleus pulposus with radiation of pain from the low back to the posterior right thigh was reported. An October 1986 lumbar myelogram report reflects reference to a computerized tomogram scan that suggested disc herniation at L5-S1 on the left. A November 1986 X-ray examination revealed laminectomy residuals, slight narrowing of L4-5 and L5-S1 discs, and spurring at several levels. In February 1987, it was recorded that the veteran had undergone L4-5 laminotomy and diskectomy about 3 months previously. He still had L5 weakness and some sacral nerve weakness. In March 1987, it was indicated that he had had three lumbar laminectomies with recent disc herniation and postoperative erectile dysfunction. In August 1987, there was a notation of status post large L4-5 herniated nucleus pulposus and extrusion, 1986. A January 1988 lumbar myelogram revealed a large lateral disc herniation, L4-5, on the right and a smaller lateral disc herniation, L5-S1, on the left. Computerized tomography in January 1988 added bilateral disc herniations at L4-5, much greater on the right and laminectomy residuals, L4-5. Magnetic resonance imaging in January 1988 revealed degenerative disc disease at the L4-5 and L5-S1 levels with bilateral disc herniation as well as osteophyte formation at L5-S1, and foraminal narrowing and probable nerve root impingement at these levels. Kaiser Permanente clinical records include a July 1992 X-ray report showing a previous laminectomy L5-S1 with partial removal of the spinous process of L4. There were degenerative changes involving the lower lumbar spine and marked disc space narrowing at L4-5 and L5-S1. At the veteran's July 1998 hearing, he testified that he initially injured his back during active service in 1957. He stated that his first treatment had been in 1960. He indicated that a neurosurgeon told him that, once there's an injury to the spine, it will always be present. He felt that his injury had resulted in four operations. He described his initial back injury during active service as occurring when he fell going down the steep side of a hill carrying a machine gun. He indicated that the corpsman who was with them gave him on site treatment and he was then treated at a regimental hospital and sent to the barracks for bedrest. He recalled being on bed rest for one day and then he returned to light duty, but did not recall how long the light duty lasted. His initial post-service treatment reportedly was within a year following separation. In July 1998, the veteran's former employer forwarded the veteran's workers compensation records dated in May 1988, which show that he had been examined for residuals of back injuries. It was noted that he had worked for the same employer in the construction of aircraft from 1964 to the present and that his first employment related back injury had been in 1964, when he suffered an on-the-job back strain. He received physical therapy and was able to return to work. In 1975, he suffered a more serious back injury at work for which he ultimately underwent a laminectomy at L5-S1 on the right side. He subsequently was assigned an engineering job requiring prolonged sitting. In approximately 1981 or 1982, he noticed greatly increased low back pain and progressive difficulty in arising from his chair due to the low back pain. By approximately 1984, his low back condition reportedly had worsened considerably and he was required to undergo a fusion operation. He subsequently returned to work in his usual capacity as a milling machine operator when, in February 1986, he noticed a very definite worsening of his low back pain, which seemed related to his repetitive activities lifting, pushing and pushing parts weighing about 20 pounds each in the course of his milling operations. The job he was on ran out and he was placed on lighter work duties so that his back pain condition improved somewhat. In September or October 1986, he suffered a back injury when he unexpectedly stepped off the edge of an 8-inch high platform and felt a jarring in his low back, following which he lost his balance and fell backwards against a toolbox that was behind him. The next day he reportedly was experiencing very bad pain in the low back and sought treatment. While resting at home, he experienced another episode of greatly worsened low back pain for which he was hospitalized and underwent a third surgery consisting of a laminectomy and diskectomy at L5-S1 on the left side. On his second day after returning to work, his left leg went out while he was working and he fell, again experiencing greatly increased low back pain. This led to another low back surgery in February 1988. The diagnosis was shown as status post-operative four surgeries on the low back. Another surgery reportedly was being planned for his low back disorders. In regard to previous injuries, the veteran was noted a whiplash to the neck and upper back a few years earlier, a condition causing neck and upper back pain (which apparently dated to the 1960s although that word is almost illegible), a skull fracture s a child, and an ankle sprain in military service, along with a history of headaches. It was concluded in the report that the veteran had suffered continuous trauma injury to the back from 1979 to the present in his employment, with the earliest prior back injury noted as having been in 1975. Legal Criteria Once a denial of a claim of service connection has become final, it cannot subsequently be reopened unless new and material evidence has been presented. 38 U.S.C.A. § 5108. New and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration; which is neither cumulative nor redundant; and which, by itself or in connection with evidence previously assembled, is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). In Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. Id. at 1363. For the limited purpose of determining whether to reopen a claim, the credibility of the evidence is to be presumed; however, this presumption no longer applies in the adjudication that follows reopening. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), it was held that a claim must be accompanied by supportive evidence and that such evidence "must 'justify a belief by a fair and impartial individual' that the claim is plausible." In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where the question involves a medical diagnosis or opinion as to medical causation, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). A lay appellant's statement about what a physician told him i.e., "hearsay medical evidence," cannot constitute medical evidence of in- service etiology of a current disability. See Robinette v. Brown, 8 Vet. App. 69 (1995). Analysis New & Material Evidence As To Residuals Of Low Back Surgeries There is no dispute in this case that the September 1988 rating decision became final after the veteran was appropriately notified and failed to timely appeal. At the time of the prior decision in September 1988, the only evidence considered included the service medical records and the results of the VA examination in May 1988. The service medical records, while documenting numerous complaints by the veteran, do not reflect any complaints or findings regarding any back injuries/problems. Moreover, the veteran's spine was found to be normal on the service separation examination and no relevant history or defects were noted. The May 1988 VA examination report showed a history of initial back surgery in 1975 and three subsequent surgeries. No evidence, lay or medical, regarding the low back dated prior to 1975 was of record. Since the time of the unappealed rating decision both medical and lay evidence has been received. A former marine has stated that he saw the veteran fall down a hill, thereby injuring his back and ankle for which he received in-service treatment. This statement is consistent with the veteran's claim of having injured his back in that manner during service. Also, in October 1997 a physician reported that the veteran's chronic back pain dated from the in-service injury in approximately 1960 9later specified to be 1957). The veteran's sworn testimony as to the in-service onset of low back pain as a consequence of the claimed injury, the statement of a fellow marine corroborating the accident and injury, and the physician's report of October 1997 are all considered credible for the purpose of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). This evidence is obviously new in that it was not on file at the time of the September 1988 rating decision. It is also material in that it serves to show an in-service injury and to link the current low back disability to that injury. For these reasons the additional evidence warrants reopening of the claim. Well Groundedness of Reopened Claim The next step in the Board's analysis is to determine whether the reopened claim is well grounded. There is competent evidence of a current back disability and evidence of an in- service injury, although the service medical records do not document any back problems during service. There must also be medical evidence of a nexus between the claimed in-service injury and the current post-operative disability. Whereas the veteran and a former fellow marine have indicated that the veteran injured his back during service when he fell down a hill and that he was treated in service for the injury, neither is competent to establish the nature of the claimed in-service injury or whether it is related to the post-service back disorder that has required back surgeries, the first of which was in 1975, about 15 years following active service. There is no medical evidence of any chronic residuals from any in-service back injury. In fact, numerous post-service medical records on file tend to show the onset of back problems in about 1972 following a recent injury, not one in service years earlier. While Kaiser Permanente records reflect that in 1972 the veteran did give a prior history of back symptoms that required traction, such was reported to have occurred only five years earlier, which still would have been several years after service. In any event, there is no competent evidence of any current residuals of the claimed in-service injury or any continuity of low back problems from service until the first surgical procedure in 1975. While the October 1997 medical report by Dr. R. recounted the veteran's statement that he injured his back during service, Dr. R. did not relate any current back disability to the reported in-service injury or to the veteran's report of episodes of back pain since then. It is clear from the report that the references to service and any continuity of symptomatology were based on history as recited by the veteran to Dr. R. "Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner," does not satisfy "`competent medical evidence'" requirement set forth in Grottveit v. Brown, 5 Vet. App. 91, 93 (1995). See LeShore v. Brown, 8 Vet. App. 406, 409 (1995). As to the veteran's testimony at his hearing, he is a layperson, and thus is not competent to determine the medical causes of his current back condition. See Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992). Likewise, his testimony that a neurosurgeon told him that a back injury is permanent is not competent medical evidence. See Robinette v. Brown, 8 Vet. App. 69 (199). In fact, other than the veteran's own statements and the statement of his former Marine Corps comrade, essentially all of the evidence shows initial back problems several years after service, multiple post-service back injuries, and disability resulting from the post-service injuries rather than any in-service injury. With no medical evidence supporting the claim that an in- service injury culminated in the current low back disability, the reopened claim is found to be not well grounded and entitlement to service connection for residuals of low back surgeries must be denied. The veteran has not indicated the existence of any additional post service evidence, which has not already been obtained, that would well ground his claim. ORDER New and material evidence sufficient to warrant reopening a claim of entitlement to service connection for residuals of low back surgeries having been received, the claim is reopened. The reopened claim of service conenction for residuals of low back surgeries not being well grounded, service connection is denied. JANE E. SHARP Member, Board of Veterans' Appeals