BVA9501663 DOCKET NO. 93-07 711 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher P. Kissel, Associate Counsel INTRODUCTION The appellant served on active duty from May 1972 to March 1974. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a September 1992 rating decision of the Montgomery, Alabama, Department of Veterans Affairs Regional Office (VARO). It is noted that VARO's September 1992 rating decision reopened the appellant's previously denied claim for service connection for residuals of a back injury on the basis of new and material evidence; accordingly, the Board will now consider this claim on a de novo basis. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that residuals of a low back injury sustained in service in a motor vehicle accident in May 1973 resulted in a low back disability for which he is now entitled to service connection. Alternatively, he contends that his low back disorder, if considered a pre-existing condition, was aggravated in service when he re-injured his back in the May 1973 motor vehicle accident. Alternatively, he avers that his back disorder was caused by his service-connected residuals of brain contusion with encephalopathy, thus warranting entitlement to the claimed disability on a secondary basis. 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(s). 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 appellant's low back disorder was not incurred in or aggravated by military service. Further, it is the decision of the Board that service connection on a secondary basis for the claimed low back disorder is not warranted. FINDINGS OF FACT 1. The appellant served on active duty from May 1972 to March 1974. 2. The evidence of record indicates that a low back disorder without evidence of related in-service injury or trauma, initially diagnosed in service in July 1973 as a psycho- physiologic musculoskeletal reaction and subsequently identified in service as an old fracture of the L4 vertebral body, was present prior to military service. 3. The pre-existing low back disorder is not shown to have increased in severity during the appellant's active military service. 4. There is no competent evidence of record supporting an etiological relationship or link between the appellant's low back disorder and his service-connected head injury residuals. CONCLUSIONS OF LAW 1. The presumption of soundness on entry as to a low back disorder manifested by an old fracture of the L4 vertebral body with complaints of recurrent low back pain has been rebutted by clear and unmistakable evidence. 38 U.S.C.A. §§ 1101, 1110, 1111, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303(c), 3.304, 3.306 (1993). 2. The pre-existing low back disorder was not aggravated by military service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1993). 3. Secondary service connection for the claimed low back disorder is not warranted. 38 C.F.R. § 3.310 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VARO and that a disposition on the merits is now in order. I. Factual Background The Board notes that the appellant specifically denied a history of recurrent back pain on his entrance physical examination conducted in May 1972, and clinical findings on examination were negative. Service medical records reflect that the appellant was initially treated for complaints of back pain, symptomatic for the past week, in November 1972. At that time, he reported a history of recurrent back pain which pre-dated his military service period. Clinical findings on physical examination was negative; there was full range of motion of his lumbar spine and no evidence of muscle spasm. X-rays of his lumbosacral spine taken in November 1972 revealed changes in the anterior superior corner of the L4 vertebral body, considered to be an old, incompletely fused fracture or possibly an ununited apophyseal ring. Also noted on x-rays was a congenital variation of the L5 vertebral body, and spina bifida occulta of S1. In addition, x- ray findings revealed some straightening of the lumbar lordosis; however, there was no evidence of spondylolisthesis or spondylolysis. The appellant was treated for similar complaints of intermittent low back pain in February, April, July and August 1973. Diagnosis established on the basis of his complaints reported in July 1973 was psycho-physiologic musculoskeletal reaction. He was provided Darvon for treatment purposes. He was seen on two occasions in August 1973 for his back pain complaints. At that time, he was provided Valium. Diagnosis established on the basis of his complaints reported in August 1973 was lumbosacral pain, musculoskeletal spasm, secondary to post trauma. No additional complaints or treatment for recurrent low back pain were reported or indicated in the service medical records. Service records also reflect treatment in May 1973 for injuries to his pelvis and left upper leg sustained in a motor vehicle accident. X-rays of his pelvis were negative for any evidence of fracture or other significant pathology. Diagnosis was soft tissue trauma. The appellant was treated on a follow-up basis for the above injuries on three occasions in May 1973. He was treated for complaints of muscle soreness the day following his car accident; treatment consisted only of aspirin. Examination on May 7th for evaluation of his complaints of mild discomfort in his suprapubic and sacral area revealed full range of motion of the spine with no evidence of vertebral tenderness. On May 14th, he reported complaints of bilateral hip pain; however, clinical work-up was negative and no further treatment or evaluation for his injuries sustained in the car accident was deemed necessary. Service records also reflect treatment for the appellant's service-connected head injury residuals that were sustained in a September 1973 motor vehicle accident. However, treatment records for that accident clearly reflect no involvement of the appellant's back; the admission report to a private hospital for his injuries noted "[t]here is no evidence of injury to the vertebral column, the chest, or the abdomen." Follow-up evaluation for his injuries at the Walter Reed Army Medical Center noted "... full range of motion of the neck and back." Medical records which postdate service (dating from 1976 through 1992) reflect VA and private inpatient and outpatient treatment primarily for the appellant's service-connected head injury residuals; however, he was also treated on multiple occasions for complaints of recurrent low back pain. X-rays of his lumbar spine taken in April 1976 revealed an old chip fracture of the superior-anterior aspect of the L4 vertebral body. Repeat x-rays taken on VA examination in August 1983 showed equivalent findings; the diagnosis entered at that time was old avulsion fracture of the L4 vertebral body. II. Analysis The appellant is seeking entitlement to service connection for a low back disability. 38 U.S.C.A. § 1110 (West 1991). Under pertinent law and VA regulations, service connection may be granted if the facts, shown by the evidence, establish that the claimed disability was incurred in service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1111, 1153 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1993). A pre- existing disease or injury will be considered to have been aggravated by wartime military service when there has been an increase in the disability during such service, unless such increase is clearly and unmistakably due to natural progress. 38 C.F.R. § 3.306(a) and (b) (1993). Under appropriate law and VA regulations, the appellant is presumed to be in sound condition when he is accepted for service, with the exception of disorders noted at the time of entrance into service. The presumption is rebutted where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior to service. 38 C.F.R. § 3.304(b) (1993). Taken as a whole, the medical evidence of record establishes that a low back disorder, initially diagnosed in service in July 1973 as a psycho-physiologic musculoskeletal reaction, existed prior to service, and therefore, did not originate in service. Service medical records, as reflected by the November 1972 treatment report which denotes the appellant's reported history of a back condition which predated his service period, show x-ray findings of an old, incompletely fused fracture at the L4 vertebral body. There was no mention of any related low back injury in service. Repeat x-rays of his lumbar spine taken after service, in 1976 and then again in 1983, confirm the presence of an old avulsion fracture at the L4 vertebral body. It is the undersigned's opinion that the evidence of record, as indicated by in-service x-ray findings of an old fracture without any mention of an associated injury in service, establish a pre-existing condition that was manifested by recurrent pain symptomatology of the low back. Accordingly, entitlement to service connection for this condition on direct incurrence is not warranted in this case. 38 C.F.R. § 3.303(c) (1993). The Board has carefully reviewed the evidence in order to determine whether service connection may be granted on the basis of aggravation of the pre-existing back disorder. As indicated above, wartime service connection based on aggravation requires evidence of an increase in the underlying pathology of the disability during service. Notwithstanding the appellant's contentions to the contrary, the undersigned concludes that the weight of the evidence is against the appellant's claim of service connection for a low back disorder on the basis of aggravation. Although the appellant was treated in service for complaints of recurrent low back pain, variously diagnosed as a musculoskeletal pain reaction or muscle spasm, there is no evidence of pathologic increase in severity during his relatively brief period of military service. The Board notes that the usual effects of medical treatment provided in service, which includes pain relief medication therapy, will not establish a basis for service connection unless the underlying disease or injury was otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1) (1993). With respect to the in-service automobile accidents, there is simply no objective evidence that his injuries sustained in those accidents involved any pathology of his low back. In view of the post service medical findings, which are negative for evidence that his complaints of recurrent low back pain treated at various times in the years after service is any different from the course of treatment for similar complaints during service, the Board believes that service connection for a low back disorder on the basis of the in-service aggravation has not been shown by the objective evidence of record. 38 C.F.R. § 3.306 (1993). The appellant's contention with respect to entitlement to the claimed low back disability on a secondary basis appears entirely specious. Under pertinent VA regulations, service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (1993). However, since there is absolutely no evidence, either medical or otherwise, which demonstrates a causal or medical relationship between his service-connected head injury residuals and his complaints of recurrent low back pain, service connection on a secondary basis is not warranted. The simple fact that he was treated for his low back complaints prior in time to the occurrence of the head injury precludes establishing a cause-and-effect relationship between these conditions. Based on the foregoing, the Board believes that service connection for the claimed disability should be denied. The preponderance of evidence found probative to the issue weighs against a grant of the benefit sought; the benefit of the doubt is for application where the evidence of record is found to be relatively evenly balanced. 38 U.S.C.A. § 5107(b) (West 1991). ORDER The appeal is denied. C. P. RUSSELL 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.