BVA9500845 DOCKET NO. 90-49 865 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from October 1966 to December 1968. By decisions dated in May 1984 and June 1989, the Board of Veterans' Appeals (the Board) denied the veteran's claim of entitlement to service connection for a back disability. Following the more recent Board decision, the veteran submitted additional evidence seeking to reopen his claim for service connection for a back disability. By decision of July 1992, the Board concluded that the evidence submitted by the veteran was new and material since it raised the possibility that the veteran's claim was valid. Accordingly, his claim was reopened. The case was then remanded to the Regional Office (RO) for consideration of the veteran's claim on a de novo basis. This matter is currently before the Board on appeal from a January 1993 decision of the RO which denied the veteran's claim for service connection for a back disability. In a statement dated in September 1992, the veteran's representative asserted that the RO committed clear and unmistakable error in assigning an effective date of October 1989 for an award of pension benefits. Since this matter was not developed or certified for appeal, and inasmuch as it is not inextricably intertwined with the issue now before the Board, it is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection should be established for a back disability. He denies that he experienced any back problems prior to service and maintains that he first injured his back in November 1966 in boot camp. He claims that he slipped on soapy cement as he was coming out of the barracks. He reports that he was given bed boards. He also states that he again injured his back in March 1968 when the ship he was on abruptly made a sharp turn and he hit a bread rack in the ship's galley. Finally, he argues that he was in a motorcycle accident in August 1968 and that he complained of his back following this injury. He insists that he has had back problems continuously since the inservice injuries. 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 weight of the evidence is against the claim of entitlement to service connection for a back 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. The veteran's spondylolysis, first noted in service, was plainly present prior to service and did not increase in severity therein. 3. The veteran underwent surgery for a herniated nucleus pulposus in 1985. 4. The veteran's current low back disability is not causally related to service. CONCLUSIONS OF LAW 1. Spondylolysis clearly and unmistakable pre-existed service and the presumption of soundness at entrance is rebutted. 38 U.S.C.A. §§ 1111, 5107 (West 1991). 2. A low back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303(b), 3.306(b) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The initial question before the Board is whether the veteran has submitted a well-grounded claim as required by 38 U.S.C.A. § 5107. The United States Court of Veterans Appeals (the Court) has held that a well-grounded claim is one which is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In addition, in Tirpak v. Derwinski, 2 Vet.App. 609 (1992), the Court held that a claim must be accompanied by evidence (emphasis in original). In this case, the service medical records, the veteran's statements and an opinion from a Department of Veterans (VA) physician concerning the onset of his back disability are sufficient to conclude that his claim is well-grounded. The Board notes that the veteran's representative has argued that since an opinion was obtained from an independent medical expert, a copy of that opinion must be furnished to the veteran. He has also asserted that the veteran is entitled to receive a supplemental statement of the case in view of this additional evidence. See 38 C.F.R. § 19.31 (1993). However, 38 C.F.R. § 20.903 (1993) states that the appellant is to be notified when an opinion is requested from an independent medical expert. Such notice was provided to the veteran by letter of April 1994. The regulation, however, specifically states that when the opinion is received by the Board, a copy of it will be furnished to the appellant's representative or to the appellant if there is no representative. Since the veteran does have representation, the Board was in full compliance with the regulation in providing the opinion only to the representative. The Board finds that the development of the record is complete, and that no further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. The following provisions of the law and regulations are those principally governing this case: Service connection may be granted for disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. In order to establish aggravation of a pre-existing disorder, clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preserve disability underwent an increase in severity during service. This includes medical facts and principles which are to 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; 38 C.F.R. § 3.306(b). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that nay manifestations of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. 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 the time, as distinguished from merely isolated findings or a diagnosis including the word ""Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) 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) The service medical records disclose that, at a June 1966 examination prior to entry into service, the veteran reported a history of recurrent back pain. He indicated that he had injured his back the previous summer. He had seen a chiropractor who put his "back in place." A clinical evaluation of the spine was normal. In March 1968, the veteran reported that he had been thrown across the ship's galley during a hard roll, sustaining an injury. The impression was multiple lacerations of the right hand and arm. It was apparently during this incident that the veteran subsequently related that he had injured his back. There is, however, no support for this claim in the service medical records, as no mention was made at the time of the injury of any problems involving the spine, nor did he make subsequent reference to a back injury in this incident subsequently when he was seen for back complaints. The service medical records also show that in August 1968, the veteran was riding his motorcycle when he turned over while negotiating a turn. An examination showed some pain on palpation over the right sacroiliac joint. The impression was multiple contusions and abrasions. In a referral to the orthopedic clinic the next month, it was indicated that he had experienced recurrent low back pain since a traumatic injury to the spine three years earlier. It had been recently exacerbated following the motorcycle accident. He complained of difficulty lifting relatively light objects. When seen in the orthopedic clinic in October 1968, it was noted that there was no radiation of pain down either lower extremity. There was no bowel or bladder disturbance. An examination revealed normal gait. There was full and painless range of motion. An X-ray revealed spondylolysis L5-S1. Later that month, it was noted that medication had worked only for a little while. There was a complaint of "severe" back pain. The veteran was hospitalized in November 1968. It was reported that he first experienced the onset of low back pain three years prior to admission following an injury he sustained in diving into a small body of water after striking a second person. At that time, he noted the onset of low back discomfort requiring the assistance of a physician. He was treated symptomatically and hospitalization was not required. He related that since that time he had experienced considerable discomfort of the lower lumbar spine, occasionally radiating into the right thigh, but not below the knee. He continued to experience this difficulty while on active duty and during boot camp, but was able to put up with his symptoms by rest and symptomatic therapy. An examination disclosed that he walked with a normal gait and he walked on his heels and toes without difficulty. No scoliosis was noted. There was no evidence of muscle spasm, but he exhibited tenderness in the right of L4 on palpation. Deep tendon reflexes, sensations and straight leg raising signs were within normal limits bilaterally. An X-ray of the lumbar spine revealed spondylolysis of L5-S1 with a "visible defect" in the pars interarticularis. It was noted that he had failed to respond to physical therapy. A lumbosacral brace provided some relief of his discomfort. It was concluded that he had a developmental abnormality of the lumbar spine with a defect in the pars interarticularis of L5. It was also opined that it had existed prior to service and was not aggravated in service. On the discharge examination in December 1968, a clinical evaluation of the spine was abnormal. Spondylolysis was noted. In a statement dated in April 1972, R. O. Sebek, M.D., reported that he had first seen the veteran in December 1969, at which time, he gave a history of having back pain since diving into a gravel pit in 1965. An X-ray of the lumbar spine showed no fractures dislocations or disease processes. There was a spondylolysis. Dr. Sebek concluded that the veteran was born with a spondylolysis at the fifth lumbar level. In a statement dated in July 1971, W. A. Baird, M.D., noted that he had seen the veteran about two months earlier and that the veteran had a spondylolisthesis at the lumbosacral junction. Several statements have been received from E. T. Carter, M.D. of the Mayo Clinic. He noted in a statement of July 1983, that when the veteran had been first seen at the clinic by another physician in July 1980, he had reported a diving accident in 1965 in which he injured his upper dorsal spine. The pain cleared up completely. He was symptom free until early 1968 when he was thrown suddenly across a galley on a ship and developed some lumbosacral pain. This had been aggravated by the August 1968 motorcycle accident. Dr. Carter commented that the history would appear to implicate the injury sustained in the galley in 1968 as the beginning of the veteran's current problems because he had been symptom-free for nearly three years prior to his event. In addition, he noted that the pain in 1965 was in the upper dorsal spine, not the lower spine, which was then the site of his problems. When the veteran was hospitalized in a VA facility in November 1984, he reported that he had had chronic low back pain since an injury in service. He stated that he fell on a cement floor that was soapy in November 1966. The veteran was again hospitalized by the VA from April to May 1985. He underwent a laminectomy and microdiskectomy. The diagnosis was herniated nucleus pulposus, L4-5. Dr. Carter reported, in a statement dated in November 1985, that spondylolysis was a condition which would not disappear and, if present in 1968, it would have been seen in subsequent X-rays. He again reviewed the numerous X-ray reports in the record and spondylolysis was not found. He indicated he had not seen the films taken in service. A VA physician, in a statement of June 1989, noted that the veteran had been hospitalized by the VA for a herniated lumbar disc and underwent excision of the disc. He indicated that X- rays during and subsequent to the hospitalization had shown no spondylosis or any other congenital disorder of the lower lumbar spine. He opined that it was possible that the herniation of disc between L4-5 occurred as a result of trauma. While the veteran had presumably sustained trauma to the back prior to service, it was quite likely that the back injuries he sustained in November 1966 and March 1968 might have caused or aggravated a pre-existing ruptured disc. The veteran's records were reviewed by a VA physician in October 1992. It was concluded that it was difficult to tell what may have caused the herniated disc at the L4-5 level. There was no way to prove whether the accident in the 1960's in any way contributed to the disc herniation. In light of the record, the Board referred the veteran's claims folder to an independent medical expert in July 1994 for an opinion concerning the exact nature of the veteran's back disability in service, and whether the current back disorder was related to service. A response dated in October 1994 was received from the independent medical expert. He reviewed the extensive records and concluded that the veteran had a spondylolysis prior to service and that it had no connection to service. He noted that it was a benign condition and that the veteran's injuries in service did not aggravate the condition in any way. He commented that the diagnosis prior to the veteran's surgery in 1985 was low back pain and bulging disc at L4-L5 and that he doubted that the problems in 1985 dated back to the injuries in service. He further noted that the bulging disc could not be directly related to any specific injury before, during or after service. In light of the time that elapsed between service and his back surgery in 1985, the independent medical expert doubted that any connection existed. Finally, he opined that, with regard to the L4-L5 disc, the probability that it was caused or aggravated by any activity or injury during service was 10 percent or less. While the veteran has asserted in connection with his claims for benefits that he did not have any problems with his low back prior to service, this assertion is flatly and convincingly refuted by the many statements of medical history recorded for treatment purposes during and shortly after service that are of far greater probative value as they were generated in to context only of treatment and were made proximate to the events in question. The service medical records establish that he had spondylolysis, L5-S1. There is no support in the service medical records for his allegation that he injured his back during service prior to the motorcycle accident in August 1968. There is no indication of any treatment for the back in November 1966, when he reportedly fell on cement. Although he was treated in March 1968 after he was thrown across the ship's galley, there is no suggestion that he had any complaints concerning the back at that time. Moreover, subsequently when he was treated expressly for back problems in service he did not report such an injury. While Dr. Carter has reported he could find no evidence of spondylolysis on numerous X-rays, he did not see the films in service. Multiple physicians in service interpreted the films as showing a spondylolysis, as did Dr. Sebek post service. Moreover, the independent medical expert also found that the record supported the conclusion that this was the veteran's condition in service. The Board finds, therefore, that the evidence clearly and unmistakably rebuts the presumption of soundness at entrance with respect to whether the veteran had developed a chronic back disorder as a result of a pre-service injury. Service connection could still be granted if it is demonstrated that the pre-existing back disability increased in severity during service. Such a conclusion cannot, however, be made in this case. The record shows that following the motorcycle accident in August 1968, the veteran had contusions and abrasions. These evidently resolved following treatment for the acute condition. The basis for his discharge was the pre- existing spondylolysis. It is significant that the physicians who treated the veteran in service, and who were in a position to compare his medical history with the manifestations in service, found that the pre-existing condition was not aggravated. Thus, the contemporaneous clinical evidence of record does not establish that there was any permanent increase in severity in the underlying disability. See Hunt v. Derwinski, 1 Vet.App. 292 (1991). The Board has considered the June 1989 statement of the VA physician which was to the effect that the veteran's back injuries in service might have aggravated a pre-existing ruptured disc. This speculative opinion was apparently made without a review of the clinical record. The physician specifically referred to injuries to the back in November 1966 and March 1968. However, as noted above, there is no clinical record of these injuries, or contemporaneous statements of medical history to sustain the conclusion that such injuries occurred. The Court has held that an opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet.App. 458 (1993). In contrast, the independent medical expert's opinion is to be accorded great weight since it was based on a review of the complete record. That opinion concluded that the probability of a relationship between spondylolysis and service was 0 percent and that there was no more than 10 percent chance that the L4-L5 disc was caused or aggravated by any injury in service. The Board finds that the veteran's history is not credible and is of far less probative value than the opinion of the independent medical expert. In this regard, it is again significant to point out that the veteran reported in service in September 1968 a history of recurrent low back pain following an injury three years earlier. There was no mention at that time of a back injury in service prior to the motorcycle accident. Yet, following service, he has, at times, indicated that the onset of his back problems was either the alleged injuries in 1966 or 1968. Moreover his assertions concerning the relationship of his current back disability to service are not competent. As a lay person, the veteran lacks the capability to provide evidence that requires specialized knowledge, skill, experience, training or education. Espiritu v. Derwinski, 2 Vet.App 492 (1992). In sum, the independent medical expert's opinion is highly probative as it is based on a comprehensive review of the actual clinical records, and is not grounded in statements of medical history that are inaccurate. Accordingly, the Board finds that the weight of the evidence is against the claim for service connection for a back disability. Where the evidence is not at least in equipoise, the doctrine of reasonable doubt is not for application. 38 U.S.C.A. § 5107. ORDER Service connection for a back disability is denied. RICHARD B. FRANK 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.