Citation Nr: 0001688 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 98-06 619 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for kidney and other urinary tract disorders. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Debbie A. Riffe, Associate Counsel INTRODUCTION The veteran served on active duty from April 1980 to December 1992. This case comes to the Board of Veterans' Appeals (Board) from a May 1997 RO decision which denied service connection for a low back disorder. This case also comes to the Board from an August 1997 RO decision which denied service connection for kidney and other urinary tract disorders. FINDING OF FACT The veteran has not submitted competent evidence to show plausible claims for service connection for a low back disorder and for kidney and other urinary tract disorders. CONCLUSION OF LAW The veteran's claims, for service connection for a low back disorder and for kidney and other urinary tract disorders, are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran served on active duty in the Air Force from April 1980 to December 1992. His primary duties were as an avionics systems specialist. Service medical records show that on a March 1980 physical examination for enlistment purposes the veteran's spine and genitourinary system were clinically evaluated as normal and a urinalysis was normal. On an October 1981 medical record pertaining to an inguinal hernia, a urinalysis was noted to be normal. In June 1986, the veteran was seen with a complaint regarding his back. He reported that it was a chronic problem that had existed intermittently for six years. He described muscle tightness and pain when trying to raise up fully erect. An examination revealed there was no muscle spasm present. Straight leg raising was negative and reflexes were 2+. The veteran pointed to the L4-L5 level to the left and right of his spine. The assessment was suspect musculoskeletal spasm. He was given conservative treatment and referred to physical therapy. A physical therapy consultation report that same month indicates that the veteran needed instruction on musculoskeletal strengthening and stretching exercises for back muscle spasm. He was to return in two weeks only if his symptoms increased; he did not return. On periodic service examinations in July 1986, October 1987, and July 1988, the veteran's spine and genitourinary system were clinically evaluated as normal and urinalyses were negative. In January 1990, the veteran was seen with a complaint of low back pain. An examination revealed good range of motion with moderate discomfort. The assessment was low back pain. In October 1991, the veteran was seen with complaints pertaining to urinary retention symptoms. An examination revealed an enlarged prostate. The provisional diagnoses were rule out stone and obstruction. Another assessment was urinary retention symptoms may be secondary to enlarged prostate. A provisional report of an intravenous urography showed no evidence of prostatic enlargement and a normal pelvicalyceal system, ureters, and bladder. A report of a urine study in October 1991 indicates "no growth at 48 hours." Service medical records in November 1991 indicate the veteran was seen in the emergency room after he was rear-ended in a motor vehicle accident. He complained of muscle aches throughout the neck, chest, and abdomen. An examination revealed full range of motion in the back. The assessment was muscle strain after motor vehicle accident. In a May 1992 operation report for repair of a hernia, the veteran reported a history of being struck by a truck while driving his automobile shortly before a temporary duty assignment to Turkey. A report of a urine study in September 1992 indicates "no growth within 18-24 hours." On a December 1992 service separation examination, the veteran's spine and genitourinary system were clinically evaluated as normal. A urinalysis was also normal. In a section of the examination report summarizing defects and diagnoses, chronic musculoskeletal low back pain was listed among other defects. On an accompanying medical history form, the veteran denied frequent or painful urination, kidney stone or blood in urine, and sugar or albumin in urine. He also indicated that he did not wear a back or back support and did not indicate whether or not he had recurrent back pain. A December 1992 health record (apparently by the same doctor who performed the separation examination) again lists a diagnosis of musculoskeletal low back pain and notes that physical therapy and exercise were recommended. In April 1995, the veteran filed a claim for service connection for a right knee disability and allergies. In July 1995, the RO ordered VA examinations to include an orthopedic examination that would address joints and the spine. In the "remarks" section of the RO's Compensation and Pension Examination worksheet (requesting a VA examination), the RO indicated that the evaluation should include examination for low back pain. On an August 1995 VA orthopedic examination, the veteran was seen for evaluation of a right knee disorder. The examiner noted the veteran had been out of the military for two years and indicated that a discussion was held with the veteran about rating his knee and spine as was listed on the RO's worksheet. The examiner stated that the veteran denied any problems with his back. The examiner then proceeded to examine solely the veteran's right knee. On an August 1995 VA general medical examination, the veteran described several medical problems, none of which pertained to the low back, kidneys, or urinary tract. On examination of the genitourinary and musculoskeletal systems, there was no reference to any abnormalities of the low back, kidneys, or urinary tract. VA outpatient records from July 1996 show the veteran complained of difficulties in urinating. There were also complaints of occasional bladder outlet obstruction without dysuria. An examination revealed a prostate that was tender and boggy. The veteran also complained of knee and back problems. In August 1996, it was noted that the veteran was treated the previous month for prostatitis and that he continued to experience problems with frequency, hesitancy, and discomfort. An examination revealed a minimally boggy and tender prostate. The assessment was chronic prostatitis. In September 1996, the veteran requested a urology referral. In November 1996, the veteran reported a history of dysuria for the past five years while in the military. Regarding a urinary tract infection, the veteran indicated that he had been treated with various antibiotics without relief of symptoms. He now complained of nocturia with frequency, with occasional weak stream, with no starting and stopping, and with no dysuria or hematuria. The assessment was prostadinea and mild bladder outlet obstruction. On a February 1997 VA clinical laboratory report, a urinalysis was performed showing a high white blood cell count. There were no other indications of abnormalities. In May 1997, the veteran filed a claim for service connection for a low back disorder. He said that his service medical records would validate his claim. In a May 1997 decision, the RO denied service connection for a low back disorder. In a June 1997 letter, the veteran argued that he had back problems in service. He claimed that his back was in pain and that the pain had spread to his kidneys. He stated that he was rushed to the emergency room for the pain several weeks previously but that the doctors did not know what his problem was. He desired to have VA doctors examine his back to determine what was causing his pain and whether the pain was connected with kidney pain and urological problems. In an August 1997 letter wherein the veteran disagreed with the RO's denial of his claim for service connection for a low back disorder, he indicated that his back was causing problems with his kidneys and other areas and that he may be having urinary problems. In August 1997, the RO denied service connection for kidney and other urinary tract disorders. A November 1997 VA outpatient record indicates the veteran complained of increased pain in the lower back. VA outpatient records in June 1998 indicate a complaint of low back pain. The veteran reported that he had low back pain prior to trauma several years ago and that he has had physical therapy previously with some improvement. The veteran denied radiation down the legs, numbness or tingling in the legs, and recent trauma. An examination revealed no tenderness, deep tendon reflexes that were 2+ in the lower extremities, and sensation that was grossly normal. There was slight change in sensation on the right. The assessment was low back pain, unclear whether the pain was musculoskeletal or disc. The veteran was prescribed pain medication. At a July 1998 hearing at the RO, the veteran testified that he did not have a back condition prior to his period of military service; that his back gradually worsened over time in service as he worked in aircraft maintenance which involved lifting heavy parts; that he was in physical therapy off and on beginning early in his Air Force career; that his back worsened after an automobile accident while stationed in Europe; that at the time of discharge from service he was experiencing back problems; that he currently used a back brace and took pain medication; that he had not had any back injuries since service; that in regard to genitourinary problems he was sent by the military to a hospital in England where he was stationed and given medication for what was then thought to be a short-term problem; that he was once rushed to an emergency room with spasms and pain in his kidney area and has since been to the VA hospital where his problem was not identified and testing was still ongoing; that he currently took medication for treatment of voiding dysfunction problems; that he believed his kidney disorder and urinary tract infection were a single problem; that he did not receive treatment from the VA for about three years after service because he did not realize he could obtain medical treatment; and that the first time he received medication for kidney and urinary tract conditions after service was since he has been in Charleston the last two years. An August 1998 VA outpatient record indicates that the veteran was seen for his first visit in the spine clinic. He complained that he could not sit or stand. The veteran reported a motor vehicle accident in 1991 and back pains prior to the accident. He denied any treatment since discharge from service. The examiner stated that X-rays of the lumbosacral spine revealed a bilateral L3 pars defect with degenerative changes at L3-4. The X-ray report indicates that there was mild osteophytosis of the anterior vertebral bodies at L3 and L4, sclerosis of the posterior elements of L5 to S1 bilaterally, and no evidence of spondylolysis or spondylolisthesis. The examiner prescribed physical therapy and opined that the veteran most likely had a pre-existing problem that was exacerbated by his accident and physical demands in the military. In an August 1998 letter, the veteran indicated that he was recently seen in the spine clinic where the doctor told him that if physical therapy did not help him then his next step would be surgery. II. Analysis Service connection will be granted for disability resulting from disease or injury which was incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. A claimant for VA benefits shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The VA has the duty to assist a claimant in developing facts pertinent to the claim if the claim is determined to be well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered is whether the veteran has presented a well-grounded claim; that is, a claim which is plausible. If he has not presented a well-grounded claim, his appeal must fail, and there is no VA duty to assist him in development of his claim. Id.; Murphy v. Derwinski, 1 Vet. App. 78 (1990). As explained below, the Board finds that the veteran's claims are not well grounded. To sustain a well-grounded claim, the claimant must provide evidence demonstrating that the claim is plausible; mere allegations are insufficient. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded claim requirement of 38 U.S.C.A. § 5107(a ). Grottveit v. Brown, 5 Vet. App. 91 (1993). In order for a claim for service connection to be well grounded, there must be competent evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (medical evidence or, in some circumstances, lay evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). The nexus requirement may be satisfied by a presumption that certain diseases manifesting themselves within certain prescribed periods are related to service. Caluza v. Brown, 7 Vet. App. 498 (1995). A. Low Back Disorder In this case, the medical evidence shows that the veteran was initially seen for low back complaints in service in June 1986. At that time, it was suspected that the veteran had musculoskeletal spasm and he was referred for a physical therapy consultation. The veteran did not return after his initial physical therapy consultation. He was next seen in January 1990 for a complaint of low back pain. Thereafter, on his December 1992 separation examination, the veteran's spine was clinically evaluated as normal; however, in a section of the report summarizing defects and diagnoses (and on a related outpatient record) musculoskeletal low back pain was listed. No abnormal objective findings were reported in these records. After service, the veteran denied having any back problems on an August 1995 VA examination. There is no post-service medical evidence of back complaints until July 1996, and in December 1997 the veteran was seen for complaints of increased low back pain. He was seen again for a low back complaint in June 1998 and was diagnosed with low back pain. An August 1998 VA X-ray revealed mild osteophytosis at L3 and L4 and sclerosis from L5 to S1. A VA examiner interpreted the radiologic results as showing a bilateral L3 pars defect with degenerative changes at L3-4. The VA examiner also opined that the veteran's motor vehicle accident and the physical demands of the military most likely exacerbated a pre-existing low back problem. While the service medical records from the veteran's 1980- 1992 active duty show acute and transitory low back complaints, a chronic condition is not shown during that time. 38 C.F.R. § 3.303(b). There is no evidence of arthritis of the low back within the year after service, as required for a presumption of service incurrence. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A chronic low back disorder is first shown several years after service. Evidently, the VA examiner's statement in August 1998 was made solely on the basis of history provided by the veteran. If the service medical records had been available, the examiner would have seen that the veteran did not sustain any low back injury at the time of the motor vehicle accident in service. As the sole basis for the VA medical opinion is the unsubstantiated medical history proffered by the veteran, the examiner's statement, that the veteran had a pre-existing low back problem exacerbated by his motor vehicle accident, lacks any probative value and does not serve to make the claim well grounded. LeShore v. Brown, 8 Vet.App. 406 (1995). Statements by the veteran, to the effect that his low back disorder is attributable to service, do not constitute competent medical evidence, since, as a layman, he has no competence to give a medical opinion on diagnosis or etiology of a disorder. Grottveit v. Brown, 5 Vet. App. 91 (1993). What is lacking in establishing a well-grounded claim is competent medical evidence to link the veteran's current low back disorder, first shown several years after service, with his period of active duty. Consequently, the veteran has not met the initial burden of submitting evidence to show a well- grounded claim for service connection for a low back disorder, and the claim is denied. 38 U.S.C.A. § 5107(a); Caluza, supra. B. Kidney and Other Urinary Tract Disorders In this case, the medical evidence shows that on a single occasion during service in October 1991 the veteran was seen for complaints regarding urinary retention symptoms. The examination at that time revealed an enlarged prostate, and it was believed that the veteran's symptoms were possibly due to the enlarged prostate. Further study through an intravenous urography, however, did not show evidence of prostatic enlargement. The study also revealed that the veteran's pelvicalyceal system, ureters, and bladder were normal. There was no subsequent diagnosis pertaining to the kidneys or rest of the urinary tract in service, and on the veteran's separation examination his genitourinary system was normal. The veteran was next seen for genitourinary complaints beginning in July 1996, more than three years after service. He was diagnosed with prostatitis at that time, and with prostadinea and mild bladder outlet obstruction in November 1996. He testified in July 1998 that he took medication for treatment of voiding dysfunction problems and that testing was still ongoing to determine the cause of his problems. However, there is no subsequent medical evidence of genitourinary complaints or treatment of record. Even assuming the veteran now has kidney or other urinary tract disorders, such did not appear until years after service, and what is lacking in establishing a well-grounded claim is competent medical evidence to link current conditions with service. Consequently, the veteran has not met the initial burden of submitting evidence to show a well- grounded claim for service connection for kidney and other urinary tract disorders, and the claim must be denied. 38 U.S.C.A. § 5107(a); Caluza, supra. ORDER Service connection for a low back disorder is denied. Service connection for kidney and other urinary tract disorders is denied. L. W. TOBIN Member, Board of Veterans' Appeals