BVA9501125 DOCKET NO. 93-07 254 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Martin F. Dunne, Counsel INTRODUCTION The veteran had three periods of active duty service: March 1969 until March 1971; March 1981 until March 1983; and from September 1987 until September 1989. Between his periods of active duty service, the veteran was a drilling reservist with the Florida National Guard. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA), St. Petersburg, Florida, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL Essentially, the veteran contends that his back condition is due to injuries he sustained while on active duty service in 1989. He asserts that in June 1989 he injured his back while lifting food supplies. He claims that he re-injured his back when he tripped over field communications wire while on military maneuvers in July 1989. At his personal hearing held at the RO in July 1992, he testified that, although he had injured the upper part of his back in an automobile accident in 1966 prior to his first period of active duty service, the upper portion of his back has not given him any problem. He desires service connection for his low back condition which he asserts was a result of the aforementioned incidents that occurred while he was on active duty. 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. 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 favor of the claim for service connection for a low back disability. FINDINGS OF FACT 1. The veteran sustained injuries to his low back in June and July 1989 while on active duty service. 2. In March 1991, the veteran underwent a laminectomy at L4-5 after which the operating physician described the extruded disc as calcified and of long-standing duration. CONCLUSION OF LAW The veteran's low back disability was incurred in active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.103, 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran has presented a well grounded claim; that is, one which is plausible. The Board also finds that the VA has adequately fulfilled its responsibility to assist him in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(1994). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease, resulting in disability, was incurred coincident with service in the Armed Forces, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. When a chronic disease is shown in service 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. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. 1110,1131 (West 1991); 38 C.F.R. § 3.303 (1994). The veteran's service medical records do not reflect any low back problems prior to June 1989 when he sustained an acute back strain/sprain following a heavy lifting incident. Medical examination noted that he had muscle spasms and tenderness in the area of the right lower quadrant of his back. There was full range of motion with pain on extension, but no sciatic pain. He was prescribed muscle relaxors, told to perform muscle exercises, and to take warm baths. In July 1989, he related that he had tripped and was complaining of recurrent low back pain. "Tingling" in the right thigh was reported. Medical examination found palpable muscle spasm in the lumbar region. Straight leg raising was equal, bilaterally. On range of motion studies, pain was found to increase when his lower extremities were elevated above 60 degrees. The diagnosis was lumbosacral strain. On follow-up examination in the end of July 1989, range of motion of his back had moderately improved, deep tendon reflexes were normal, and there was no muscle spasm found. The veteran's post-service medical records show that in March 1991 he was admitted to a non-VA medical facility with complaints of low back pain radiating into the right leg. By history, the medical admission report notes that he had been treated on conservative management but had not responded so he was admitted for a myelogram and contrast CT scan. The results of these procedures revealed that he had a probable herniated lumbar disc. The diagnosis was herniated nucleus propulsus on the right at L4- 5. A week later, he underwent a laminectomy with the removal of a an extruded and calcified, extremely hard disc at L4-5. The veteran's private attending physical, in a letter dated in April 1991, essentially noted that the veteran had an extruded disc at L4-5 on the right side that had calcified so it was of long-standing duration. This was confirmed, both by a myelogram and contrast CT scan, and a laminectomy was performed with removal of this large, calcified extruded disc to decompress the nerve root on the right side. In August 1991, the veteran was re-admitted to the hospital after having developed some increased left leg pain with recurrence of even some right leg pain. This pain had progressed in spite of conservative management. A lumbar myelogram and contrast CT scan were performed which revealed a large recurrent disc, this time extruded to the left side predominantly. It was felt that there was a need for a repeat decompression laminectomy, bilaterally, at L4-5 with removal of the recurrent disc and, at the same time, for a facet joint fusion and a posterolateral fusion of L4 to the sacrum. At the veteran's personal hearing in July 1992, he testified that he had not sustained any other injuries to his low back between the time he was separated from active duty service in September 1989 and his hospitalization in March 1991. Also, on file is a statement from an acquaintance of the veteran who claims that he had known the veteran both before and after the veteran injured his back in 1989. Prior to the injury, the veteran's friend notes that the veteran had worked at keeping in good physical condition and that he had participated in his military unit's physical training program by exercising and running three time a week but, after injuring his back, he observed that the veteran was no longer able to maintain this level of physical fitness. In the veteran 's case, the record shows that he injured his low back while on active duty service in 1989. Prior to this time, his service medical records do not reflect any complaints or symptomatology associated with low back problems. Just two months prior to his separation from active duty, his medical records show that his low back was slowly resolving. His post- service medical records show that, within twenty months of his low back strain/sprain that was treated in service, he underwent a laminectomy of an extruded disc at the site of the treated strain/sprain. Furthermore, the veteran's attending physician noted that it was his opinion that the herniated disc that was removed was of long-standing duration because it had calcified. ORDER Entitlement to service connection for a low back disability to include herniated nucleus pulposes is granted. BRUCE KANNEE 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.