BVA9500088 DOCKET NO. 91-17 147 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. B. Werdal, Associate Counsel INTRODUCTION The appellant served on active duty from March 16, 1989, to April 28, 1989. This matter came before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from a decision dated May 31, 1990, from the Los Angeles, California, Regional Office (RO). The notice of disagreement was received in August 1990. The statement of the case was sent to the appellant in October 1990. The appellant's testimony at a hearing in December 1990 was accepted as a substantive appeal. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends she now suffers from a back disability that began in service, and seeks service connection for it. She asks that she be afforded the benefit of the doubt. 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 appellant did not incur or aggravate a back disability while serving on active duty. FINDINGS OF FACT 1. The appellant served on active duty from March 16, 1989, to April 28, 1989. 2. The appellant complained of back pain on one occasion while in service, but that incident was isolated and any injury associated with it was acute and transitory and did not result in a lasting disability. 3. The appellant does not have a back disability as the result of an injury sustained while on active duty. CONCLUSION OF LAW A clear preponderance of the evidence establishes that the appellant does not have a back disability that was caused by an injury incurred or aggravated in service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection is appropriate for a disability that is the result of a disease or injury incurred in service that is not the result of the individual's own willful misconduct. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1993). The appellant served on active duty from March 16, 1989, to April 28, 1989. Her service medical records reveal that on April 7, 1989, she reported to the troop medical clinic complaining of back pain for three days. She stated the pain began in her mid- back and radiated into her lower legs. The examiner observed that the veteran was in no apparent distress, and that her functional activities were within normal limits. A tender left T10-11 facet was noted with pain on right side bending but not with left side bending, and not with forward bending. Neurological and motor function were normal. The examiner's assessment was acute facet dysfunction and the plan was to give the veteran a profile for three days, medication, ice and side bending stretches. There is no evidence of subsequent in-service complaints of or treatment for back pain, although there are references to treatment and counseling for other matters. A report of a physical examination performed in connection with the veteran's separation on April 28, 1989, is not in the record, and it is not clear that such an examination was performed in this case. The Board has also noted the veteran's explanation regarding the absence of in-service treatment records. That is, the veteran stated she did not seek additional care in-service, nor mention ongoing back pain during her out-processing, as she believed it would delay her release from active duty. The Board notes the absence of any treatment for complaints of back pain until August 1990, however, despite the veteran's assertion that she suffers back pain during the course of her employment as a preschool teacher. This evidence does not support the veteran's claims that she continued to suffer symptoms and manifestations of the April 1989 back pain even after April 7, 1989, nor does it support a finding that the April 1989 injury was anything more than acute and transitory. The Board finds that the injury reported by the veteran in April 1989 was acute and transitory, and did not result in a lasting disability. 38 U.S.C.A. § 1131 (West 1991). The veteran filed a VA Form 21-526, Veteran's Application for Compensation or Pension, in April 1990, alleging she incurred a back disability in service and continues to suffer from that disability. She added that the in-service injury is aggravated by her activities as a preschool teacher, and submitted statements from her employer and a co-worker confirming the fact that she experiences painful symptoms. The claim for service connection was denied in the May 1990 rating decision on appeal. The first evidence of treatment of complaints of back pain after service is a medical record from the VA medical facility in Loma Linda, California, dated and received by the RO in August 1990, more than one year after the veteran's release from active duty. The record reveals that on August 8, 1990, the veteran reported complaints of spasms and pain across her low back since April 1989. The examiner observed that her movement appeared limited. The assessment was altered comfort level, and she was referred to a physician. The physician reported the back was tender at the left T5-7 area and L3-S1 area. Extremities were without weakness or tenderness. The diagnosis was myalgic back pain rule out radiculopathy. During a VA examination performed in June 1992, x-rays of the lumbosacral spine revealed mild scoliosis of the thoracic spine; views of the lumbosacral spine were essentially unremarkable. The radiologist's impression was "Currently nonspecific findings." A VA examination in August 1993 includes x-rays, which the orthopedic examiner stated in January 1994 reveal mild degenerative changes of the lumbar spine with mild dextroscoliosis. The diagnosis is mechanical low back pain, the etiology of which is unclear. The Board notes that the mild degenerative changes first noted in the 1993 x-rays appear two years after the one-year presumptive period had passed. 38 U.S.C.A. § 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). The only support of record for the veteran's claim of a causal connection between the April 1989 complaint of back pain and the back pain for which she seeks service connection is her own statement. The United States Court of Veterans Appeals (Court) has held that lay witnesses are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). In addition, the Court has held in Layno v. Brown, 6 Vet.App. 465 (1994), citing Grottveit v. Brown, 5 Vet.App. at 93 (1993), that just as the Board must point to a medical basis other than its own unsubstantiated opinion, the appellant cannot meet rely upon her own unsubstantiated opinions as to medical matters. Thus, the Board finds that the appellant has not submitted competent evidence to support her contentions pertaining to an in-service incurrence of a back disability. Although the appellant has not submitted competent evidence to support her contention that she incurred a back disability in service, the record does include evidence to establish a well- grounded claim with regard to the question of whether a back disability was incurred in service. The service medical records include a reference to treatment for back pain. Thus, the claim is plausible and capable of substantiation, and satisfies the claimant's initial burden. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Nonetheless, as explained above, the appellant's claim, while capable of substantiation, has not in fact been substantiated: taken as a whole, the evidence establishes that the disorder treated in service resolved without resulting in a lasting disability. The Board has considered the veteran's representative's arguments regarding the necessity for another VA examination, but concludes that additional development is not necessary. With regard to the representative's assertion that the RO should have addressed specific parts of the rating schedule but did not do so, especially 38 C.F.R. § 4.40 (1993), the Board points out that the regulations applicable to determining the appropriate disability rating need not be addressed unless and until it is determined that the veteran in fact sustained a service-connected disability. A discussion of the measurement of the level of impairment at this time would be premature. Based on the foregoing, the Board concludes that the veteran did not sustain a back disability in service. 38 U.S.C.A. § 1131 (West 1991). The appeal must be denied. The Board finds that the positive and negative evidence is not in equipoise. Therefore, the doctrine of the benefit of the doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 1991). ORDER The appeal is denied. G. H. SHUFELT 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. (CONTINUED ON NEXT PAGE) 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.