Citation Nr: 0003383 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 95-40 321A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for a postoperative low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD D. Dean INTRODUCTION The appellant had active naval service from September 1970 to September 1974. This matter comes to the Board of Veterans' Appeals (Board) from rating determinations by the Fort Harrison Regional Office (RO) of the Department of Veterans Affairs (VA). The case was last before the Board in July 1998, when it was determined that the appellant had reopened his previously denied claim through the submission of new and material evidence; the appeal was then remanded to the RO for further development. After the appeal was returned to the Board in July 1999, the Board consulted an independent medical expert (IME) concerning the medical question presented by this claim. This IME opinion was received in November 1999. The appellant's representative was notified of the IME opinion and submitted additional argument in support of the appeal in November 1999. FINDINGS OF FACT 1. The appellant sustained acute and transitory back injury as a result of a mountaineering fall in October 1972; the injury completely resolved without any residual disability before the appellant's separation from active service in 1974. 2. The preponderance of the evidence indicates that the herniated lumbar disc which required surgical correction in 1978 was not related to the acute back injury in October 1972, or to any other event in service. CONCLUSION OF LAW Entitlement to service connection for a post-operative low back disability is not established. 38 U.S.C.A. § 1110 (West Supp. 1999); 38 C.F.R. §§ 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 1991). The aforementioned factual basis may be established by medical evidence, competent lay evidence, or both. 38 C.F.R. § 3.307(b). In general, lay witnesses, such as the appellant, are only competent to testify as to factual matters, such as what symptoms an individual was manifesting at a given time; however, issues involving medical causation or diagnosis require competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Grottveit v. Brown, 5 Vet.App. 91 (1993). Service connection can be granted for any disease diagnosed after discharge from service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). It is also important to note that service connection is only appropriate for a chronic disability. 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." When the fact of chronicity in service is not adequately supported, then continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b) (1999). However, lay evidence of similar symptoms in service and currently is not sufficient to demonstrate a nexus between the symptoms in service and the current disability; this is a medical question and requires competent medical evidence. See Hodges v. West, No. 98-1275 (U.S. Vet. App. Jan. 12, 2000). Background The appellant had active service from September 1970 to September 1974, and he sustained a "forced flexion" of his lower back when he fell approximately 60 feet while mountain climbing in early October 1972. He did not seek medical treatment for low back complaints immediately after the injury or during the remainder of his military service. Comprehensive physical examination of the appellant by military physicians in November 1972 (only one month after the back injury) and in August 1974 produced no relevant complaints by the appellant or pertinent clinical findings indicative of low back pathology. After service, the appellant was employed in the building and construction trade. He has alleged that, during the period from October 1972 onwards, he experienced significant low back pain approximately every four months from which he gained immediate relief by rolling himself into a tight ball. The evidence indicates that he sought no medical treatment for the complaints or for any low back problem until approximately 1978. A lumbar myelogram in October 1978 disclosed a herniated disc at L5-S1 on the left, after which the appellant underwent a lumbar laminectomy. The appellant now seeks to establish service connection for this post-operative low back disability, maintaining that the onset of the low back disability dates from the October 1972 fall in service. Analysis In October 1979, the appellant's orthopedic surgeon, E.M. Voke, M.D., wrote a very brief letter addressed "TO WHOM IT MAY CONCERN" indicating that the herniated lumbar disc which he excised from the appellant's back in October 1978 "resulted from a 60 foot mountain climbing fall that the patient incurred in the Fall of 1972 while he was in the service." This letter was solicited by the appellant in support of his claim for VA disability benefits, and there is no indication that Dr. Voke had reviewed the relevant medical records or was even aware of the appellant's negative medical history in service and for years immediately afterward, following the 1972 in-service accident. This letter appears to be based on nothing more than Dr. Voke's unquestioning acceptance of the appellant's own recitation of his medical history to the effect that he had chronic low back pain since the 1972 injury in service. As such, this opinion is not very persuasive, nor is it credible or probative concerning the question of the medical causation of the appellant's herniated lumbar disc. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value.) Another individual, A.H. Scott, D.O., who describes himself as a "board certified orthopedic surgeon" (without furnishing any corroboration or professional letterhead) has also submitted written statements (dated in June 1996 and March 1999) in support of the appellant's claim. He has been a personal acquaintance of the appellant since 1990, but has no personal knowledge of the events which occurred in service or in 1978. His first letter in June 1996 was based solely on a "complete history" which he obtained from the appellant. Dr. Scott indicated at that time that the appellant's post-fall symptoms (as related to him by the appellant and his wife) were "consistent with an acute ruptured lumbar disc," but that he did not complain of, or seek medical treatment for, these symptoms "because of his family and national [German] work ethic...." Finally, Dr. Scott stated that it was his "professional and personal opinion" that the herniated lumbar disc and 1978 surgery "are directly related to [the appellant's] active duty injury and therefore is service connected." The Board noted in its July 1998 remand a concern that Dr. Scott's June 1996 opinion was based on a limited and incomplete factual background; moreover, it could not be ignored that the appellant's silence concerning any back complaints from 1972 to 1978 seemed to be inconsistent with reason and common sense which dictates that a herniated lumbar disc makes its presence known immediately and emphatically, and cannot be concealed for a lengthy time by any degree of stoicism on the part of the victim. Accordingly, the Board directed that the file be referred to an appropriate VA physician for a medical opinion concerning the etiology of the appellant's low back disability. The complete claims file, including the service medical records and medical records pertaining to the appellant's 1978 surgery, were reviewed in September 1998 by a physician at the VA Medical Center in Fort Harrison. It was observed by that physician that the medical records "speak loudly to the fact that there was no back pain at all while [the appellant] was in service; he noted the appellant's several statements in service specifically denying that he had any back problems, and several medical examinations which found no low back pathology; he also noted that the appellant was willing on many occasions in service to seek medical care for problems which are relatively trivial next to a herniated lumbar disc. The VA physician further stated that the hyperflexion injury described by the appellant would not normally result in a herniated lumbar disc and is not consistent with the findings reported during the 1978 surgery, which were instead consistent with an intercurrent injury to the lumbar spine, probably in 1977-78 (since the appellant was engaged in heavy lifting in connection with his job at that time). He also stated that a herniated disc would be immediately very noticeable and "would not have been smoldering for six to seven years" before causing the patient to seek medical treatment. "It certainly would not have been relieved for three or four months at a time by someone who could just curl up in a ball." In summary, it was reported that "I find that there is absolutely no way to service connect his 1978 laminectomy back to a fall that he had in service in 1972." In response, the appellant submitted another letter from Dr. Scott, dated in March 1999, in which he collaterally attacked the VA physician's qualifications to offer an opinion in this case on the grounds that he was a mere internist, while he (Dr. Scott) was a "Board Certified Orthopedic Surgeon" with great experience in the field. He alleged that he had seen and treated people over the years who functioned at a high level of physical activity in spite of a herniated lumbar disc (although it is noted that Dr. Scott apparently never treated the appellant and does not therefore include him among this number); he asserted from his own personal experience that many Army discharge examinations are superficial (implying that the appellant's separation examination by the Navy was too). Dr. Scott also contended that the injury in service almost certainly disrupted the normal mechanical integrity of the lower lumbar spine (which is consistent with an acute and transitory injury, as the Board understands this statement), even if the disc did not completely rupture at that time. Although he claimed to have reviewed additional medical records at that time, it is apparent that Dr. Scott's second written opinion is still primarily based on the appellant's verbal accounts of his medical history and Dr. Scott's fundamental belief in the appellant's truthfulness (which is not in doubt) and the completeness of his account of the course of his back problems (which is at least open to question). Dr. Scott asserted once again that it was far more likely than not that the mountaineering fall in October 1972 was causally related to the appellant's chronic low back disability. It is observed that no persuasive evidence has been submitted to indicate that the VA physician in question was not fully qualified to offer the medical opinion which he submitted in September 1998. The Board did not require that an orthopedic surgeon be consulted for this opinion. However, in order to resolve the conflicting medical opinion reflected by the record, the Board in October 1999 referred the entire claims file pursuant to 38 U.S.C.A. § 7109 to an IME, not an employee of the VA. After thorough review of all of the relevant medical evidence, the IME stated that he differed from the opinion of Drs. Voke and Scott. He observed that degenerative discs and subsequent herniation "occur as the result of genetics and some degree of repetitive stress. Patients generally experience their first symptoms after a lifting or twisting injury or other trauma. In the case where an acute stress creates a herniated disc significant enough to require surgical management, symptoms are typically severe and unrelenting. This was clearly not the case with this patient's injury as he continued naval service without reported difficulty." Consequently, it was his opinion, "with a reasonable degree of medical certainty, that this patient's fall in 1972 did not specifically cause his herniated disc requiring surgical management in 1978." He further noted that, while it was possible that the fall in service "contributed to some degree" to the later development of the appellant's current back problems, the amount of this contribution appeared to be "minimal." The Board finds the medical opinion of the IME and VA physician in this case to be most credible and probative, since they alone were based on a comprehensive review of all of the relevant medical records and were not tied to the appellant's selective memory of his own medical history, long after the fact, as were the opinions of Drs. Voke and Scott. Moreover, on careful review of most recent correspondence from Dr. Scott, it appears to the Board that he may have crossed over the line from an impartial, objective medical observer to that of an active advocate, disregarding facts adverse to the appellant's claim as noted in contrary medical opinion of record. According to the most credible and probative evidence of record, herniated lumbar discs are generally associated with lifting or twisting spinal injuries. The appellant did not sustain a lifting or twisting injury to the spine in 1972, but is more likely to have sustained such an injury in connection with his job activities in 1977-78. Furthermore, it is highly unlikely that he could successfully deal with a herniated disc by curling up into a ball, as he has described, or that he would delay seeking medical treatment for such disability from 1972 until 1978. It is the Board's conclusion following its review and evaluation of the evidentiary record that, while the appellant may have sustained acute and transitory low back injury as a result of an in-service fall, this resolved completely itself without residual disability by the time of his discharge from active service in September 1974, and the onset of his herniated lumbar disc dates from an intercurrent lifting or twisting injury in 1977-78, most probably related to a post-service event. ORDER Service connection for a postoperative low back disability is denied. J. F. GOUGH Member, Board of Veterans' Appeals