BVA9507150 DOCKET NO. 91-52 524 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Julia M. Kurtz, Associate Counsel INTRODUCTION The veteran served on active duty from June 1986 to September 1988. This appeal arises from a June 1990 rating decision of the Milwaukee, Wisconsin, Regional Office (RO) which determined that the veteran had not submitted new and material evidence sufficient to reopen his claims for entitlement to service connection for a back disorder and a bilateral knee disability. The veteran testified before a hearing officer at the RO in March 1991. In October 1992, the case was remanded by the Board for further development. In March 1994, the Board reopened the veteran's claims for entitlement to service connection for a back disorder and bilateral knee disability and remanded the veteran's appeal for due process. The case is now ready for further appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to service connection for a back disorder and bilateral knee disability, as these disabilities had their origin in service. He further contends that the National Guard disqualified him due to a chronic back disorder and right knee disorder due to his history of such disorders in 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(s). 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 is in relative equipoise on the claim of entitlement to service connection for a back disorder, characterized by low back strain. It is also the decision of the Board that the preponderance of the evidence is against the veteran's claim for entitlement to service connection for a bilateral knee disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. A back disorder, characterized by low back strain, is attributable to service. 3. It is not shown that the veteran has a bilateral knee disability that is of service origin, or is related thereto. CONCLUSIONS OF LAW 1. A back disorder, characterized by low back strain, was incurred during service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). 2. A bilateral knee disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (VA) has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. Our review of the record indicates that the appellant's claim is plausible and that all relevant facts have been properly developed. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by peacetime service. 38 U.S.C.A. § 1131 (West 1991). An allowance of service connection requires that the facts, shown by the evidence, establish that an injury or disease resulting in disability, was incurred in service. 38 C.F.R. § 3.303(a) (1993). For a 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 the time as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only 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 chronicity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1993). I. Back Disorder The veteran's service medical records reveal no complaints or findings of a back disorder when examined for his enlistment examination in May 1986. In October 1986, the veteran was seen for complaints of low back pain. He stated that he was clipped while playing football. Physical examination revealed point tenderness over the right paraspinal muscles and lumbosacral area. X-ray study of the lumbosacral spine was within normal limits. The assessment was rule out degenerative joint disease versus muscle strain. The veteran returned a few weeks later with continued complaints of low back pain. There was no palpable spasm of the lumbosacral spine. Deep tendon reflexes were 2+ bilaterally and sensation was grossly intact. The veteran had full range of motion of the lumbar spine. The assessment was chronic low back pain with right sciatica component. The veteran returned one week later complaining of low back pain for three days and indicated that he had fallen down the stairs. There was tenderness in the lower back area and positive straight leg raising. The assessment was acute paraspinal muscle strain. X-ray study dated in December 1986 again were normal. In July 1987, the veteran was seen for complaints of right hip pain in the lumbosacral area of one week's duration since moving furniture. The assessment was right gluteal/hip pain. Physical examination a few weeks later revealed tenderness in the lumbosacral area and right ischial tuberosity. There was positive straight leg raising on the right at 30 degrees and positive Lasegue. Reflexes were 1+. The impression was low back pain with right sciatica. An x-ray study was interpreted as showing possible L5-S1 intervertebral disc degenerative disease with early facet degenerative changes at L5- S1 without other findings. The veteran was afforded a VA examination in November 1988. On that occasion, he complained of pain in the lower back. He stated that the pain began in 1986 when he was hit by another player in the right lower back while playing football. After the injury, he experienced pain radiating posteriorly across the right buttock, down into the right lower limb to the upper calf. Initially, he was told he had a pulled muscle, and later a deteriorating disk and nerve problems. He received physical therapy twice weekly for the next two months. In June 1988, his symptoms returned while moving furniture. Since discharge, he has pain in the right lower back and hip varying from once weekly to once monthly. The pain radiates across the buttocks and occurs after sitting two hours or bending to lift 30 to 50 pounds in weight. Physical examination revealed minimal percussion tenderness in the midline of the lower back. There was no muscle spasm or rigidity in the lower back. The veteran walked on his heels and toes without difficulty and squatted easily. Motion was normal and deep tendon reflexes were present and equal bilaterally. There was decreased sensation to light touch about the anterolateral aspects of the right thigh and anterior aspect of the right leg. Straight leg raising sign was absent bilaterally. X-ray study showed deformity of vertebral bodies at L2, L3, and L4, consistent with Schmorl's node, otherwise normal study. An electromyogram study was conducted; the impression was normal study of the right lower extremity and related paraspinals. The diagnosis was recurrent right low back pain, from history. In October 1989, the veteran underwent an examination for enlistment into the National Guard. The veteran gave a history of chronic low back pain from 1986 to November 1988, noted in VA disability examination, which resolved following the examination. Physical examination of the spine was normal. In May 1990, the veteran submitted a letter from the Department of Defense dated in December 1989, which stated that the veteran was properly disqualified for enlistment into the Armed Forces because of his history of chronic back pain and of his right knee giving out until November 1988 and would not be granted a medical waiver. The veteran testified before a hearing officer at the RO in March 1991. He testified that: he injured his back playing football in service; he was given heat treatments and physical therapy; he was told he had a sciatic nerve problem; he has not had problems since discharge from service; he now works at a desk and does not do manual labor; he was denied entrance into the National Guard because of his recurrent back pain in the service; he does not understand how the VA can say he does not have a disability and the National Guard can then disqualify him due to a disability. A medical record from M. Yusef Ali, M.D., reveals that the veteran was seen for back problems in January 1992. There was tenderness to deep palpation. Movements of the back were good, and standing and stooping were normal. The assessment was possible low back syndrome. X-ray study showed small Schmorl's nodes defect at L1-2, L2-3. There was no evidence of compression fractures, significant disc space narrowing, or evidence of spondylolisthesis. The sacroiliac joints were normal. During a VA orthopedic examination in November 1992, the veteran again reported intermittent periods of muscular type back pain. Examination revealed mild tenderness along the paraspinal muscles on the right of L3. He could forward flex to touch his ankles, extend to 20 degrees, lateral bend bilaterally 30 degrees and rotate 30 degrees. He could toe and heel walk as well as do several deep knee bends in succession. The impression was muscular type low back strain, mildly and intermittently symptomatic without evidence of radiculopathy or recent trauma. X-rays of the lumbar spine were obtained by the VA in January 1993. The impression was minor degenerative changes of the sacroiliac joints in an otherwise negative lumbar spine examination. The examiner reviewed the x-rays in conjunction with the November 1992 examination and indicated that her impression based on the November 1992 VA examination remained the same. A careful review of the veteran's service medical records discloses that he began complaining of low back pain following a football injury in service. The veteran continued to complain of back pain and was diagnosed with muscle strain of the lumbar region on several occasions. VA examinations after service have continued to diagnose muscle strain. Although the question of radiculopathy was raised, x-rays of the lumbar spine have consistently been negative for degenerative changes or disc space narrowing, and an electromyogram conducted shortly after service was negative. A review of the entire record shows that the evidence favoring a grant of service connection for a back disorder characterized as low back strain is in relative equipoise with the evidence favoring a denial. According the veteran the benefit of the doubt, the Board concludes that the veteran is entitled to service connection for a back disorder characterized as low back strain. II. Bilateral Knee Disability The service medical records reveal that in October 1986, the veteran was seen for complaints of right knee pain for the previous three weeks after being clipped while playing football. There were no findings regarding the right knee. At a physical therapy session in November 1986 for low back pain and right hip pain, the veteran elaborated on the football injury, and complained of swelling that night above the knee. He also complained of popping in the right patella with range of motion. Physical examination of the right knee was within normal limits. In May 1987, the veteran complained of pain in the right knee while walking or doing physical training exercises. The veteran had range of motion to 125 degrees. There was no effusion or laxity; Drawer, Lachman, Pivot, and McMurray's tests were negative. There was tenderness in the iliotibial band. The assessment was iliotibial syndrome. At a VA examination in November 1988, the veteran complained of a popping sensation in the right knee since July 1987. He stated that it occurs approximately once monthly with flexion or extension of the joint; he occasionally has pain with it which lasts a fraction of a second. The knee seldom gives way. Physical examination of the right knee revealed no swelling, tenderness, crepitation, change in skin temperature, restriction of motion or adjacent muscle atrophy. X-ray study was normal. The diagnosis was instability of the right knee, from history. The veteran underwent an examination for enlistment into the National Guard in October 1989. He gave a history of the right knee giving out with pain until November 1988. The knee was normal upon examination. In May 1990, the veteran submitted a letter from the Department of Defense dated in December 1989, which stated that the veteran was properly disqualified for enlistment into the Armed Forces because of his history of chronic back pain and of his right knee giving out until November 1988 and that he would not be granted a medical waiver. The veteran testified before a hearing officer at the RO in March 1991. He testified that: he has had no problems with his knees since service, he described his knee problems as a lower back pain which shoots down his right leg into his knee, and that his knee would give out and he would almost lose his balance; he was denied enlistment into the National Guard due to a right knee disability, although the VA found no disability of the knees. At a VA examination in November 1992, the veteran gave a history of right knee pain in service. Upon physical examination, there was some mild medial joint line tenderness bilaterally, but no effusion, laxity, or patellar tenderness. Knee range of motion was 0 to 120 degrees bilaterally. As noted above, entitlement to service connection requires that it be shown that an injury or disease was present in service and has resulted in continuing or residual disability. 38 U.S.C.A. § 1131. The Board concludes that the evidence of record does not provide a sufficient basis on which to grant service connection for a bilateral knee disorder. Although service medical records note two complaints of right knee pain in service, the evidence of record shows only slight limitation of motion of the right knee on one occasion. Furthermore, the service medical records contain no complaints or findings of a left knee disorder. Post- service, in 1988, the veteran was diagnosed with instability of the right knee by history despite a normal examination and in 1992, although he showed slight tenderness and limitation of motion of both knees, the findings were not sufficient for the examiner to render a diagnosis. In fact, the veteran has testified that he has had no problems with his knees since service. We have considered the veteran's contention that the National Guard disqualified him due to his history of his right knee giving out. However, such history is not corroborated by the veteran's service medical records nor the veteran's own testimony. In summary, the evidence, when considered in its entirety, does not demonstrate that any current pathology was incurred in service or in any way related to military service. Accordingly, entitlement to service connection for a bilateral knee disorder is denied. ORDER Service connection for a back disorder, characterized as low back strain is granted. Service connection for a bilateral knee disability is denied. E. W. SEERY 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.