BVA9508210 DOCKET NO. 92-09 701 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sandra L. Smith, Associate Counsel INTRODUCTION The veteran had active service from July 1954 to June 1956. This case is before the Board of Veterans Appeals (the Board) on appeal from a November 1991 rating decision which denied service connection for hypertension and a low back disorder. The case was referred to the Regional Office (RO) for further development by the Board in a June 1993 remand. The requested development was accomplished and the rating decision of March 1994 continued the denial of service connection for both hypertension and a low back disorder; however, the March 1994 decision did grant the veteran a total disability rating for pension purposes for his nonservice-connected disabilities. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to service connection for his hypertension and low back disabilities because both disorders were present in service and noted in his service medical records. 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 preponderance of the evidence is against the claims for service connection for hypertension and a low back disorder. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran had brief episodes of fluctuating elevated and normal blood pressure readings in May and September 1955, during service, and on examination for service discharge normal blood pressure was noted. Chronic hypertension was not shown in service, and the earliest clinical evidence of chronic hypertension is dated in 1980, approximately 25 years after service discharge. 3. A low back disorder was not reported at the time of the veteran's service entry examination. 4. Statements by the veteran during service establish that he had low back problems prior to service consistent with those complained of in service. 5. There was no increase in severity of any pre-existing low back problems during service. 6. Chronic back pathology was not demonstrated in service except for a clinically insignificant nontraumic, congenital variant of L4. 7. There is no continuity of low back symptomatology from service discharge to 1988, a period of more than 30 years. 7. Degenerative disc disease and arthritis of the lumbar spine were first shown more than 30 years after service, and there is no competent medical evidence or opinion relating these disabilities to service. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated during service, nor did it manifest itself to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303(b)(d), 3.307, 3.309 (1994). 2. The appellant's low back problems or disorder clearly and unmistakably existed prior to service and, therefore, the presumption of soundness at entry is rebutted as to the problems treated in service. 38 U.S.C.A. §§ 1111, 5107 (West 1991). 3. The pre-existing low back disorder was not aggravated during service. 38 U.S.C.A. §§ 1153, 5107 (West 1991); 38 C.F.R. § 3.306(b) (1994). 4. Degenerative disc disease and arthritis of the lumbar spine were not incurred in or aggravated in service, and arthritis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A person who submits a claim for benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107. After reviewing the evidence on file we conclude that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the claims presented are not inherently implausible. Furthermore, we conclude that all facts pertinent to the claims have been developed and that as such, there is no further duty to assist in developing the claims as contemplated by 38 U.S.C.A. § 5107(a). The Board must determine whether the evidence supports each claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). For service connection to be granted, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre-existing service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. For the showing of a 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 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 continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). I. Service connection for hypertension There are some disabilities, including hypertension, for which service connection may be presumed if the disorder is manifested to a degree of 10 percent within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For hypertension to be compensable to a degree of 10 percent, there must be diastolic blood pressure readings of predominantly 100 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (1994). If the evidence shows that chronic hypertension was present during service, or to a compensable degree within one year following service discharge, continuity of symptomatology is not required, unless a diagnosis of chronicity may be legitimately questioned. The Court of Veterans Appeals (Court) has stated that medical evidence of a chronic disease within the presumptive first post- service year should set forth the physical findings and symptomatology elicited by examination. Oris v. Derwinski, 2 Vet.App. 95, 96 (1992); 38 C.F.R. § 3.303(b). It is not necessary that the chronic disease be diagnosed during the presumptive period, but, if not, characteristic manifestations of the disease, to the required degree, must be shown by acceptable medical or lay evidence, followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c). A review of the veteran's service medical records reveals blood pressure readings within the normal limits at the time of the service entrance examination in April 1954. The examination report recorded the veteran's systolic blood pressure as 140, and his diastolic blood pressure as 80. Service treatment records show that in May 1955 the veteran had blood pressure readings of 160/100 on the right and 140/98 on the left. A "history of hypertension" was noted and he was referred for further evaluation. An electrocardiographic record indicated an essentially normal test, and blood pressure was 136/78 at that time. He was seen the following day and blood pressure readings were recorded as 134/90 on the right and 130/86 on the left. It was noted that the veteran had an essentially negative history for active hypertensive process; the diagnoses were: (1) no cardiovascular disease and (2) obesity. In July 1955 the veteran's blood pressure was recorded to be 120/65. In September 1955 a blood pressure reading of 150/120 was recorded and a diagnosis of hypertension was noted. The veteran's service separation examination, dated in June 1956, showed blood pressure reading of 118/60. The examiner also noted the following: "High blood pressure on induction physical - normal now". Medical records from a private physician, dated in 1980 and 1988, show that in December 1980 the veteran's blood pressure was 180/100. On all three visits in the summer of 1988, the veteran's blood pressure readings were also elevated. A medical report from a private physician, dated in May 1991, indicated that the veteran had been in excellent general heath and able to perform heavy work until the previous year. He had been under his care since June 1990 primarily for treatment of a back disorder. However, the physician did note that the veteran had significant hypertension for which he took medication. His examinations of June 1990 and March 1991 both showed elevated blood pressure. He was hospitalized in 1989 for this condition and it was the veteran's high blood pressure which caused a convulsive seizure and resultant fall which aggravated his back pain problems. A VA hospital summary report, dated in September 1989, indicated that the veteran was admitted with complaints of disorientation and loss of memory. At the time of admission his blood pressure was 220/110. The veteran denied similar experiences in the past. He gave a a prior history of high blood pressure but never to the point of needing medication. He had also been treated with Naprosyn for his back problems. He was admitted although the veteran was quite resistant. He was treated with Capoten which dropped his blood pressure to the normal range. He was then discharged with diagnoses of: (1) uncontrolled hypertension, (2) encephalopathy, etiology unknown, possibly secondary to hypertension, (3) overweight, (4) arthritis. The veteran was to return for outpatient follow-up care. VA outpatient treatment records, dated from October 1989 to July 1993, show the veteran continued to be seen for follow-up visits for his hypertension. The records contained no evidence as to the existence of hypertension during service, within one year following the veteran's discharge from service, or prior to September 1989. A lay statement from a friend of the veteran's, dated in October 1990, described his observations of the veteran on the date in September 1989 when the veteran was behaving strangely and lost his memory apparently as a result of high blood pressure. The statement contains no evidence as to the post-service medical history of the veteran prior to the September 1989 incident. A review of an Administrative Law Judge's decision, dated in August 1991, shows that the veteran was claiming entitlement to Social Security (SSA) disability benefits due to pain in the lower extremity, left upper shoulder, back pain, and hypertension. Based on the medical evidence of his current condition, the veteran was awarded SSA disability benefits. The veteran was afforded a VA medical examination for hypertension in November 1993. The examination report indicated that the veteran gave a history of being found to have hypertension while in service. He stated that he had hypertension, of some degree, off and on since then. He had been under treatment and taking medication for his hypertension since October 1989. His current medication was Quinapril. He was observed to be a healthy appearing obese person; his blood pressure readings were 170/106, sitting; 170/98 lying; 152/100 standing and then back to 168/100. The final diagnosis was hypertension, controlled. The Board finds, based on the evidence of record, that service connection is not warranted for hypertension. The evidence shows an episode of elevated pressure readings in May 1955 while in service and again in September 1955. However, these readings were interspersed with normal readings, and chronic hypertension was not shown. Although hypertension was diagnosed in September 1955 it was not indicated to be chronic, nor does the pattern of elevated and normal readings for the brief periods in May and September 1955 demonstrate chronic hypertension. The blood pressure readings recorded at the veteran's discharge examination in June 1956 were also normal, indicating that he did not have hypertension at that time. Although the veteran gave a history in 1989 of hypertension, the clinical documentation of hypertension begins only in 1980. Furthermore, the clinical evidence shows that the veteran has only recently, since 1989, taken antihypertensive medication to control his diagnosed hypertension. Thus, the evidence demonstrates that chronic essential hypertension was first manifested many years after the veteran's discharge from service. Therefore, the Board finds the preponderance of the evidence is against the veteran's claim for service connection for hypertension. As such, the record does not present an approximate balance of positive and negative evidence with respect to the merits of the veteran's claim. Accordingly, the benefit of the doubt is not for application in this case. II. Service connection for low back disorder As set forth above in the laws and regulations cited above, service connection is to be granted for a chronic disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Again, there are some disabilities, including arthritis, for which service connection may be presumed if the disorder is manifested to a degree of 10 percent within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Every veteran is presumed to have been in sound condition when enrolled in service except as to defects noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. Medical facts and principals may be considered in determining whether an 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 C.F.R. § 3.306(a)(b). Temporary or intermittent flareups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. This means the base line against which the Board is to measure any worsening of a disability is the veteran's disability as shown in all of his medical records, not on the happenstance of whether he was symptom-free when he enlisted. Hunt v. Derwinski, 1 Vet.App. 292, 297 (1991); Green v. Derwinski, 1 Vet.App. 320, 323 (1991); Jensen v. Brown, 4 Vet.App. 304, 306-307 (1993). A review of the veteran's service medical records reveals that the service entrance examination report, dated in April 1954, was negative for any back disorder or disability. The report also indicates that the veteran was afforded a consultation by a VA orthopedic specialist, in May 1954, concerning his upper extremities and no orthopedic condition was found. Service treatment records show that in July 1954, during the veteran's first month of service while in basic training, he began to complain of back pain. An x-ray report noted that: "[t]here is an unfused fragment of the superior anterior surface of the fourth lumbar vertebra. This may merely be an unfused fragment but an old chipped fracture could give a similar appearance." In August 1954 service medical records show continued complaints of back pain while in basic training. It was also noted that the veteran gave an 8 year history of back pain. Later in August 1954, a physical examination revealed no suggestive orthopedic or neurological findings with the exception of hypertenderness over the low back area. Additional service medical records, dated in August and September 1954, show that the veteran was given clearance by the orthopedic clinic to return to full duty; however, he continued to report to sick call with complaints of back pain. He was evaluated by the mental health clinic in September 1954. Notes from that evaluation show that the veteran presented with a family history of backache and his own "incapacitating" one for the past 8 years. He resented implications of psychosomatic disorder despite obvious tension, chewed nails, poor sleeping, chronic "grudge" bearing, and other observed manifestations of psychic upset. Interpretations of the x-ray studies in August and September 1954 noted that findings were of no functional significance. Service medical records, dated in September 1955, show that the veteran again complained of sharp pain in his back. He was referred to the orthopedic clinic. On examination he gave a history of low back pain on heavy lifting in adolescence. The examiner reported full range of motion with no muscle spasm and negative straight leg raising. There was paraspinal tenderness. X-rays again showed an ununited epiphysis of the superior aspect of L4. The diagnosis was myositis of the low lumbar paraspinal muscles, chronic. There are no additional records of any complaints or treatment for a back disorder. The veteran's service separation examination report, dated in June 1956, was negative for any evidence of a back disorder or disability. There is no medical evidence of any post-service treatment for a back disorder in the first year following service or for many years thereafter. In fact, the first clinical evidence of a chronic back disorder is dated 30 years after the veteran's discharge from service. Private medical records, dated in December 1980, show the veteran was complaining of chest pain; however, there was no reference to any chronic back disorder or disability. In fact, it was noted that the veteran worked hard lifting 100 pound feed sacks and bales of hay. In June, July, and August 1988, the veteran was treated for complaints of back pain. The veteran gave a history of injuring his back in service in 1954 and experiencing intermittent pain ever since. The diagnostic impression was degenerative joint disease with spurs at vertebrae L3, 4, and 5. This was supported by x-ray findings. VA outpatient treatment records, dated from 1987 to 1993, show that the veteran was treated in June 1987 for complaint of low back pain which had been present for at least 3 months. He stated that the pain used to come and go but was now constant. X-rays revealed the L4 defect, which the radiologist remarked could represent either an old post-traumatic or developmental anomaly. The spine was otherwise normal. In August 1987 it was noted that x-rays had revealed a small fragment anteriorly from vertebrae L4. The physician noted that it might be osteochondritis dissecans because there was no definite history of any type of injury. However, it was also noted that he had been active and involved in heavy activities so it might also be a chip fracture. Nonetheless, the physician opined that it should not create any problems because it was anteriorly and not in the vicinity of any nerves or the spinal cord. The other problem noted was that the veteran was roughly 88 pounds overweight. The physician believed the veteran's back problems would worsen if he did not lose weight. In September 1991, chronic back problems were noted. Also in February and July 1993 the veteran complained of back pain. The veteran was afforded two examinations of his back in 1990 by private physicians for determination of disability for Social Security purposes. In April 1990 he was examined by a physical medicine and rehabilitation specialist. The report noted that the veteran reported constant back pain for the previous two years. He also related he had actually had back pain since he was in service. The veteran related that he had last worked in 1988 as a farmer and small engine businessman; he stopped because of pain. Physical examination findings were limited to range of motion in his back, the findings of which were inconsistent. The diagnoses were degenerative disc disease at the L5-S1 disc space and osteoarthritis of the lumbosacral spine based on x-ray. The veteran was again examined in August 1990 by a neurology specialist. The veteran gave a history of intermittent back pain since 1954 which increased upon work and exercise. The veteran had continued to work as a farmer and small engine repairman until one year previously. The examiner's impression was that the veteran had symptoms of low back pain with radiation to the legs. This pain was most likely due to lumbar spondylosis. He thought that an MRI or CT scan of the lumbosacral should be performed to further evaluate whether there was any nerve root compression and spinal stenosis. A letter from a private neurosurgeon, dated in May 1991, indicated that the veteran had been under his care since June 1990. He noted that the veteran had been in excellent general heath and able to perform heavy work until the preceding year. The physician also noted that the veteran did have some painful disability of his low back while in basic training in service. As to his inservice back pain the physician further commented: However, this was not determined to be due to any specific cause, nor was there a restriction, of any permanent nature, to discontinue his period of Army service. However, his response to the Army does confirm that he has a sensitivity of his low back and is intolerant of heavy straining and lifting. The neurosurgeon noted that the veteran currently had arthritic spurring of all three of the lower lumbar vertebrae and a curved spine, making it uniquely sensitive to strains and painful disability. He also suffered from nerve compression. Taking into consideration the veteran's hypertension as well as his low back problems, the physician opined that the veteran was totally and permanently disabled for securing competitive work. An administrative law judge decision, dated in August 1991, found the veteran to be totally and permanently disabled for Social Security purposes based on the veteran's back disorder and hypertension. The veteran was afforded a VA medical examination of his back in November 1993. The examination report noted a history of back trouble while in basic training in service. The veteran remembered being x-rayed in July 1954 but could recall no specific injury. The final diagnoses were: (1) intervertebral disc syndrome, (2) degenerative joint disease of the lumbosacral spine, (3) chronic low back pain secondary to (1) and (2); and sciatica, secondary to (1) and (2). The veteran has submitted a number of written statements which set forth in detail the contents of the various medical records in the claims folder. He contends that his current low back disability began in 1954 while he was in service; therefore, he is entitled to service connection. The Board finds, based on the evidence of record, that service connection for a low back disorder is not warranted. The service medical records show that the veteran began complaining of back pain in the first month of service and gave a history of back pain for the preceding 8 years. Thus, although it was not noted on the induction examination, the Board finds that there is clear and convincing evidence of a pre-existing back disorder prior to the veteran's service so that the presumption of fitness at service entry is overcome. In addition, the Board finds that the veteran's pre-existing low back disorder was not aggravated by the veteran's service. Although he was treated for back pain in July, August and September 1954, there is no evidence of an injury and the veteran's symptoms apparently resolved after basic training. The next entry in the service medical records was one year later in September 1955. Again there is no evidence of an injury and the veteran's symptoms apparently resolved since there were no additional entries in the service medical records and no back disorder or disability was noted on the service separation examination in June 1956. In addition, the Board notes that there were no objective findings of back pathology in service to account for the complaints of pain. The psychosomatic nature of his complaints was specifically noted in August and September 1954, and the only clinical finding in September 1955 was of some paraspinal tenderness. Although myositis was described as chronic at that time, an overall review of the record does not show such continuity of findings of myositis in service as to support the diagnosis of a "chronic" myositis. With regard to the unfused vertebra noted on x-ray in July 1954, this was again noted in September 1955 and on x-ray in June 1987 and was basically unchanged. It has been described as either a post-traumatic or congenital anomaly, and since there is no evidence of any significant back trauma in service, the reasonable conclusion is that it is a congenital anomaly which by nature preexisted service. In any event, it was also noted inservice as being of no clinical significance, and the examiner in August 1987 again found it to be of no significance in the appellant's back problems. A private x-ray in June 1988 also referred to it as a triangular density in the anterosuperior aspect on the lateral view, and remarked that this represented a normal variation; this again indicates a condition of no particular significance. None of the examiners have equated this finding with the spinal joint and disc changes representing his current arthritis and degenerative disc disease. The Board further finds that there is no medical evidence of continung symptoms of a chronic back disorder following service until 1988, more than 30 years after the veteran's discharge from service. Degenerative disc disease and arthritis of the lumbar spine were first shown thereafter, again more than 30 years after service. Furthermore, there is no clinical evidence or medical opinion in the record that the veteran's current low back disability is related to the pain experienced in July 1954 or to any other incident of service. The neurosurgeon's May 1991 statement noted that the appellant's back pain was not due to any specific cause and this statement does not link his current arthritis or disc disease to service. It does refer to an intolerance to heavy lifting and straining, but this was consistent with the preservice history described by the appellant shortly after entry into service and again in September 1955. The Board notes the evidence shows that the veteran, as a farmer, engaged in many years of heavy work and lifting after his discharge from service, contraindicating any chronic back disability during this time. Finally, the Board notes that the veteran's bare opinion as to any medical relationship is not probative, inasmuch as there is no evidence that he has medical knowledge, training, or expertise to render a diagnosis or medical opinion as to such a relationship. Espiritu v. Derwinski, 2 Vet.App. 492 (1992); Grottveit v. Brown, 5 Vet.App. 91 (1993). Therefore, the Board finds the preponderance of the evidence is against the veteran's claim for service connection for a low back disorder. As such, the record does not present an approximate balance of positive and negative evidence with respect to the merits of the veteran's claim. Accordingly, the benefit of the doubt is not for application in this case. ORDER Service connection for hypertension and a low back disorder is denied. HOLLY E. MOEHLMANN 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.