Citation Nr: 0000628 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 95-36 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. A. Kultgen, Associate Counsel INTRODUCTION The veteran had active service from January 1965 to January 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 1995 rating decision from the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a back condition secondary to status post left spermatocelectomy. In August 1995, the veteran's claims file was transferred to the Portland, Oregon, RO for further adjudication. In June 1997, the Board found that new and material had been submitted by the veteran, sufficient to reopen his claim for service connection for a low back disability, subsequent to a final RO rating decision in February 1973. The Board remanded the veteran's claim for further development to include obtaining the veteran's complete service medical records and a VA examination. In October 1998, the Board again remanded the veteran's claim as the VA examination, performed in July 1997, did not comply with the directives of the June 1997 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT There is no competent medical evidence of record of a nexus between the veteran's current back disability and any incident of service, including complaints of back pain in 1965 and spinal anesthesia given in 1968. CONCLUSION OF LAW The claim of entitlement to service connection for a low back disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran's service medical records in March 1965 noted complaints of a sore back of approximately two weeks duration. An impression of low back strain was noted. A complaint of back pain associated with gastroenteritis was reported in September 1967. In July 1968, the veteran underwent a left spermatocelectomy under spinal anesthesia. No complications were noted. The veteran's separation medical examination, in January 1969, noted no abnormalities of the spine. On a re-enlistment examination, dated in May 1978, no spine abnormalities were noted and on a report of medical history, the veteran noted no recurrent back pain at that time. A VA examination was conducted in December 1972. The veteran reported non-disabling chronic recurrent low backache since 1965. The examiner stated that the physical examination was objectively entirely negative. Full range of motion with no tenderness or weakness was noted. X-ray examination of the lumbosacral spine was not remarkable. The examiner provided a diagnosis of history of chronic recurrent low back syndrome. In September 1972, the veteran filed an initial claim for VA benefits for a May 1965 back injury. By rating decision in February 1973, the RO denied service connection for the claimed back injury. In July 1993, the veteran requested that his claim for service connection for a low back condition be reopened. The record contains VA outpatient treatment records from April 1991 and August 1993 noting complaints of recurrent low back pain. The veteran reported back spasms every two-to- three years following spinal anesthesia for left testicular surgery in 1966. X-ray examination of the lumbosacral spine in April 1991 revealed minimal scoliosis and moderate degenerative disc disease at L5-S1. A hospitalization report in June 1993 noted a history of status post L5 disc perforation in 1967 leading to chronic intermittent leg pain and weakness. In a letter, dated in October 1993, the veteran stated that misapplication of a spinal block during testicular surgery had caused damage to his back, resulting in loss of leg function. By letter, received in March 1994, the veteran's ex-spouse stated that the veteran underwent testicular surgery in October 1967. She reported that the physician told her that, during the operation, a vertebra in the veteran's back had been punctured by mistake and that the veteran may have back problems in the future. The veteran underwent a medical evaluation by M.J.S., M.D., in October 1993. The veteran reported a 26-year history of low back discomfort with an onset in 1967 following a spinal tap prior to testicular surgery. He also reported an injury in 1988, when he fell on the ice while at work. Dr. M.J.S. noted tenderness on movement of all planes of the lumbar spine, but straight leg raising was negative. No atrophy of the lower extremities was shown and there was no reflex or sensory deficit to suggest nerve root irritation. By letter dated in November 1993, T.L.T., D.C., noted that the veteran was seen for complaints of low back pain. The veteran reported that these complaints first appeared following a fall on ice in February 1988, and denied having any similar condition before the accident. A diagnosis of subluxation complex of the lumbar spine at L5-S1 with disc degeneration and spondylosis was reported. By letter dated in March 1994, A.E., D.O., stated that he examined the veteran for injuries sustained while working in February 1988. Medical history failed to disclose any previous or subsequent injuries to the back and lower extremities. Dr. A.E. stated that the February 1988 injury resulted in traumatic cephalgia, myofascial strain to the muscle and ligamental structures overlying the left sacroiliac joint and left side radiculopathy, resulting from degenerative disc disease and/or rupture. A VA general medical examination was conducted in April 1994. The examiner noted a history of a 1967 surgery of the testes due to a cyst, and a scar on the back from removal of a cyst. X-ray examination of the lumbosacral spine showed degenerative arthritis with marked narrowing of the L5-S1 interspace. The examiner provided a diagnosis of degenerative arthritis of the lumbar spine. In November 1994, the veteran submitted a note from Dr. S.L.C., dated in March 1969, providing recommendations for alleviation of low back pain. The note reported an earlier back trauma due to an operation in 1967, while serving with the United States Marine Corps. In a letter, received in January 1995, the veteran reported that further medical records from Dr. S.L.C. were unavailable. He stated that his service medical records should note the surgical removal of a misapplied spinal block needle, which had become lodged in his spine. In his VA Form 9, substantive appeal, received in October 1995, the veteran stated that the report of his testicular surgery dated in July 1968 was in error, in that he was on leave at that time and the surgery occurred in late 1967. He indicated that his current back pain was the result of incorrect application of a spinal block during surgery in 1967. In the VA Form 646, the veteran's representative reported that the adverse effects of a lumbar puncture included "injury of a lumbar root and sciatic pain, damage to an intervertebral disc, and inadvertent injection of air or a chemical contaminant with a septic pleocytosis." Further, "chemical contaminants of spinal anesthetics have had deleterious effects on spinal roots and meninges, optic nerves, and meninges at the base of the brain." The representative reported that this information was from PRINCIPLES OF NEUROLOGY, RAYMOND D. ADAMS AND MAURICE VICTOR 511, 513 (no date provided). In June 1997, the Board found that new and material evidence had been submitted by the veteran, sufficient to reopen his claim for service connection for a low back disability, subsequent to the RO rating decision in February 1973. The Board remanded the veteran's claim for further development to include obtaining the veteran's complete service medical records and a VA examination. In July 1997, the RO sent a request to the National Personnel Records Center (NPRC) requesting complete service medical records and clinical records, with regard to the veteran's testicular surgery in July 1968 and reported back injury in May 1965. In August 1997, the NPRC forwarded all available medical reports and indicated that all other medical reports had previously been furnished to the RO in November 1972. A VA examination was conducted in July 1997. The veteran reported that during a routine spermatocelectomy during military service, a spinal needle was placed into a vertebral body and had to be surgically excised. He stated that post- operatively he had difficulty walking with paralysis-like symptoms. He reported that he returned to full duty eight months later, but began developing left leg symptoms after discharge from the military. The veteran reported current complaints of constant pain in the low back area with radicular symptoms into the left leg and intermittent numbness. X-ray examination showed hypertrophic spur at L1-2 and L4-5 and marked narrowing of L5-S1. The examiner noted a small scar at L2, with unclear etiology, but no evidence of surgical incision in the back area. The examiner provided a diagnosis of degenerative joint disease and degenerative disc disease of the lumbar spine with lower extremity radiculopathy. The examiner noted review of the veteran's military medical records and noted that they contained no mention of any complications of spinal anesthetic. The examiner noted that the anesthetic records would be necessary to determine exactly what took place during the surgery. The examiner stated that it was unlikely that the spinal anesthetic had any relationship to the veteran's degenerative joint disease and degenerative disc disease, by virtue of multi-level involvement. In October 1998, the Board again remanded the veteran's claim as the VA examination, performed in July 1997, did not comply with the directives of the June 1997 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). In November 1998, the VA examiner again reviewed the veteran's medical records. The examiner stated that there was no relationship between the veteran's spermatocele surgery and the alleged complications of spinal anesthetic, nor was there any direct relationship between the veteran's complains of back pain during service in 1965 and the veteran's current multi-level degenerative disc disease. The examiner stated that records of magnetic resonance imaging (MRI) from the Detroit VA Medical Center (MC) would show any bony defect as a result of any surgery performed to remove a needle and requested that such records be obtained. In July 1999, the RO noted that they had attempted to obtain the MRI records, but to no avail. In August 1999, the VAMC was contacted, but reported that they had no record of computed tomography (CT) or MRI being performed. II. Analysis As an initial matter, the Board notes that the veteran's claim for service connection for a low back disability was previously denied by rating decision in February 1973. Generally, when a claim is denied by the RO and no timely appeal is filed, the claim, generally, may not thereafter be reopened and granted and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7105(c) (West 1991). However, if new and material evidence is presented or secured with respect to a claim which has been denied, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). In June 1997, the Board found that new and material evidence had been submitted by the veteran, sufficient to reopen his claim for service connection for a low back disability. Once the Board determines that the veteran has produced new and material evidence, the claim is reopened and the Board must then determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C. § 5107(a). Finally, if the claim is well grounded, the Board must evaluate the merits of the veteran's claim in light of all the evidence, after ensuring that the duty to assist has been fulfilled under 38 U.S.C. § 5107(b). Winters v. West, 12 Vet. App. 203 (1999) (en banc); Elkins v. West, 12 Vet. App. 209 (1999) (en banc). As the development for which the claim was previously remanded has been completed, the Board now proceeds with this analysis. Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). When a disability is not initially manifested during service or within an applicable presumptive period, service connection may nevertheless be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 U.S.C.A. § 1113(b) (West 1991); 38 C.F.R. § 3.303(d). The threshold question to be answered in the veteran's appeal is whether he has presented evidence of a well-grounded claim. Under the law, a person who submits a claim for 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. 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A claim need not be conclusive but only possible to satisfy the initial burden of § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If a claim is not well grounded, the application for service connection must fail, and there is no further duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107, Murphy, 1 Vet. App. 78 (1990). The United States Court of Appeals for the Federal Circuit held that, "For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in[-]service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service [disease or injury] and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) quoting Epps v. Brown, 9 Vet. App. 341, 343-344 (1996); see 38 C.F.R. §§ 3.303, 3.307, 3.309; Caluza v. Brown, 7 Vet. App. 498, 506 (1995). For the purpose of determining whether a claim is well grounded, the credibility of the evidence is presumed. See Robinette v. Brown, 8 Vet. App. 69, 75 (1995). In regard to establishing a well-grounded claim, the second and elements can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing post-service continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In the instant case, the veteran has submitted evidence of a current disability of the lower back. Degenerative disc disease of the lumbar spine was shown as early as April 1991. The most recent VA examination in July 1997 reported a diagnosis of degenerative joint disease and degenerative disc disease of the lumbar spine with lower extremity radiculopathy. The veteran's service medical records contain a single complaint of back pain in March 1965. However, this injury appeared to be acute and transitory and had resolved by service separation. No further diagnoses or opinions of lower back pain or pathology were noted in the remainder of the veteran's active service (excepting back pain associated with gastroenteritis in September 1967). No abnormalities of the spine were noted on separation examination in January 1969. The veteran contends that his current back disability is due to complications of the left spermatocelectomy, performed in July 1968. The Board notes the veteran's objections that the date of this operation is incorrect and that it was performed in 1967. However, the records report hospitalization from July 28 to August 1, 1968, with performance of the procedure on July 29, 1968. In any event, the report noted no complications due to the spinal anesthesia used during the operation. The Board notes that in his initial claim in September 1972 and at the December 1972 VA examination, the veteran made no assertions as to incurrence of his back disability as a result of surgery performed in 1968. The veteran's service medical records contain no subsequent complaints of back pain during the nearly six months remaining of the veteran's military service. In addition, a re-enlistment examination and history noted no complaints, diagnoses, or opinions of back pain or pathology in May 1978. The Board notes that the June 1993 hospitalization report noted a history of L5 disc perforation in 1967. However, the record contains no basis for this history and the service medical records from 1967 contain no record of such an injury. Finally, the record contains no competent medical evidence providing a nexus between the veteran's current low back disability and any incident of his military service. The VA examiner in July 1997 stated that it was unlikely that the spinal anesthetic had any relationship to the veteran's degenerative joint disease and degenerative disc disease, due to the multi-level involvement. The examiner confirmed this finding in the November 1998 addendum. The issue of whether the veteran's low back disability is related to his period of military service involves a medical diagnosis or opinion as to medical causation; thus competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The record does not reflect that the veteran or his ex-spouse has a medical degree or qualified medical experience. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Thus, although they are competent to testify as to observable symptoms, such as pain, they are not competent to provide evidence or opinion that the observable symptoms are the result of earlier surgery. See Savage v. Gober, 10 Vet. App. 489, 497 (1997). Also, the United States Court of Appeals for Veterans Claims (known as the United Stated Court of Veterans Appeals prior to March 11, 1999) (hereinafter, "the Court") has recognized that the statement of a veteran as to what a doctor told him is insufficient to establish a medical diagnosis. Warren v. Brown, 6 Vet. App. 4, 6 (1993). Therefore, the statements of the veteran and his ex-spouse are insufficient to well ground the veteran's claim. In addition, the excerpts from a medical treatise, quoted by the veteran's representative in the VA Form 646, received in November 1995, are insufficient to well ground the veteran's claim. Medical treatise statements that indicate the possibility of a link between in-service injury and current disability are too general and inconclusive to make a claim well grounded. Sacks v. West, 11 Vet. App. 314, 316 (1998); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996). However, the holding in Sacks does not extend to situations where medical treatise evidence, standing alone, discussed generic relationships with a degree of certainty that, under the facts of the specific case, there is at least plausible causality based upon objective facts rather than on a lay medical opinion. Wallin v. West, 11 Vet. App. 509, 513-514 (1998); Sacks, 11 Vet. App. at 317. In this instance, the treatise provides possible effects of a lumbar puncture, but does not indicate that multi-level degenerative disc disease and degenerative joint disease may result from such. In addition, there is no medical evidence of record that a puncture of the veteran's lumbar spine occurred. Without competent evidence of a nexus between the veteran's current back disability and any incident of service, including the 1965 complaint of pain and the 1968 surgery, the veteran's claim cannot be well grounded. The Board recognizes that there is no duty to assist in a claim's full development if a well-grounded claim has not been submitted. See Morton v. West, 12 Vet. App. 477, 480 (1999). However, the Court has held that there is some duty to inform the veteran of the evidence necessary for the completion of an application for benefits, under 38 U.S.C.A. § 5103 (West 1991), even where the claim appears to be not well grounded. Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996); Robinette v. Brown, 8 Vet. App. 69, 79-80 (1995). The veteran has not identified any medical evidence that has not been submitted or obtained, which would support a well- grounded claim. Thus, VA has satisfied its duty to inform the veteran under 38 U.S.C.A. § 5103(a). See Slater v. Brown, 9 Vet. App. 240, 244 (1996). ORDER Entitlement to service connection for a low back disorder is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals