BVA9505217 DOCKET NO. 93-08 967 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Shawkey, Associate Counsel INTRODUCTION The veteran served on active duty during World War II. His discharge document shows service from November 1945 to November 1946, with over 8 months of prior service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 1992 RO rating decision which denied service connection for a low back disability, claimed as residuals of an injury. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has residuals of a back injury which he experienced in service in the spring of 1946. He contends that he was hospitalized for approximately one week immediately following his injury and that his back has gotten progressively worse over the years. 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 service connection for a low back disability. FINDINGS OF FACT 1. Any low back injury the veteran may have sustained during service was acute and transitory and did not result in chronic disability. 2. A chronic low back disability began years after service and was not caused by any incident of service. CONCLUSION OF LAW A chronic low back disability was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1994) REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran's service medical records are unavailable for review. According to the National Personnel Records Center (NPRC) they are presumed to have been destroyed by the fire at the NPRC in 1973. Morning reports show that the veteran was reported as sick on March 11, 1946 and then returned to duty. He was again reported as sick on March 28, 1946, and he was hospitalized from March 29, 1946 to April 6, 1946, and was then returned to duty. The reason for his being reported sick and being hospitalized is not shown. The NPRC has searched for Army Surgeon General's Office hospital extracts (SGO reports) for the veteran, but none were found. A service document shows the veteran was discharged from the Army in November 1946, and his military occupational specialty had been supply clerk. In a March 1977 letter ("To Whom It May Concern"), Philip H. Johnson, M.D. (Little Rock Orthopedic Clinic) noted the history provided by the veteran, concerning a back disorder. The veteran related that he first injured his back in the Army, while lifting crates at a receiving center, and that this required hospitalization for one week. He said that he had periodic episodes of low back pain since then, and was first seen in the clinic in 1960, by Dr. Horace Murphy, at which time the diagnosis was lumbar degenerative disc disease. The veteran also recounted subsequent treatment in 1966 by Dr. Leighton Millard. He said that his latest episode of back pain began about a week ago, without any known precipitating injury. Current X-rays were performed which revealed disc space narrowing at L4-L5 and L5-S1. Following examination, Dr. Johnson stated that the veteran had a classic history and physical and X-ray findings of lumbar degenerative disc disease at L4-L5 and L5-S1. The veteran filed an application for service connection for residuals of a back injury in March 1977. He stated on his claim that he was treated for a back injury in service in April 1946. He reported post-service treatment in November 1960 by Dr. Murphy (now deceased) for a disc problem, and he also reported the recent March 1977 clinic treatment. In July 1977 the RO asked the veteran to submit additional evidence, but he did not respond. By decision dated September 1977, the RO denied the veteran's claim on the grounds that requested evidence had not been submitted. In April 1982, while a patient in Baptist Medical Center, the veteran was seen by H. Hutson, M.D., for evaluation of low back pain radiating down the left lower extremity. The veteran gave a history of intermittent low back pain. He indicated the "first time was in 1961" at which time he had to remain in bed for two weeks, and another time was in 1966 or 1967 which was also treated with two weeks of bed rest. The veteran said he had occasional episodes of soreness since then, and his present episode started several weeks ago. Following examination, the assessment was that the veteran was having sciatic nerve root irritation on the left, probably from a herniated disc in the low back. Medical records show the veteran was treated for a low back disorder by David Barnett, M.D., in 1989 and 1990. Magnetic Resonance Imaging was performed in June 1990 which revealed degenerative disk disease at L4-L5 and L5-S1. In July 1991 the veteran again filed an application for service connection for a back disability. He reported treatment in service in 1946, and he listed post-service treatment by various doctors since the 1960s (the earliest being Dr. Drew Agar during the 1960s, and Dr. Murphy in 1961). The veteran submitted a July 1991 statement from Mr. [redacted]. Mr. [redacted] said he served with the veteran in Germany and, like the veteran, was assigned the duty or receiving and warehousing material from the battlefields in Europe. Mr. [redacted] said that the veteran hurt his back in the spring of 1946 while lifting material for placement in the warehouse, and was then hospitalized for about a week for the back condition. An August 1991 letter from Richard A. Calhoun, M.D., notes the veteran was treated in March 1991 for complaints of low back pain. In September 1991, Philip H. Johnson, M.D.(Little Rock Orthopedic and Sports Medicine Clinic), reported that the veteran was only seen once in the office on one occasion in March 1977 (a copy of the previously supplied March 1977 letter was provided). In a November 1991 letter, Dr. Johnson indicated he was supplying all medical records he had concerning the veteran; a copy of the March 1977 letter was again submitted, along with a March 1977 low back X-ray report. A VA examination was performed in July of 1992. The veteran gave a history of injuring his lower back while loading crates onto trucks in service. He said he was hospitalized for several days and his symptoms cleared. He also related that his symptoms recurred in the 1950s, when he was treated with bed rest, and that he had a similar incident in 1961 and several more thereafter. Current lumbar spine X-rays showed L4-L5 degenerative disc disease, and marked degenerative joint disease at L5. Following clinical examination, the final diagnosis was residuals of a lumbar spine injury with degenerative changes. The veteran requested a hearing at the RO which took place in November 1992. At the hearing the veteran testified that while in Germany in 1946 it was his duty to receive materials in the form of boxes and crates from the war zone all over Europe. He said that in the spring of 1946 he injured his back while loading crates onto a truck for storage, and the injury resulted in hospitalization for a number of days. He said he received heat treatments at that time but never saw his medical records. The veteran asserted that his back symptoms had continued over the years since service. He said that he was periodically treated for back problems by Dr. Drew Agar, his family physician, during the 1950s and 1960s, and in 1960 Dr. Murphy treated him for a severe episode of back pain and told him that his problem started with the injury in service. The veteran said the doctors who had initially treated him after service had died or their records were otherwise unavailable. The file indicates that the RO made extensive efforts to obtain all relevant service and post-service medical records alleged by the veteran, and the only records which could be found are those summarized above. Analysis The veteran claims service connection for a low back disability which he says is due to an injury in service. The file indicates his claim is well grounded, meaning not inherently implausible. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The veteran's detailed service medical records are unavailable, as are many of the records of alleged post-service treatment. Exhaustive efforts by the RO to obtain the records have proved unsuccessful. The RO has fulfilled the VA's duty to assist the veteran with his claim, which must be decided based on the evidence of record. Id Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303(a). When a condition noted during service is not shown to be chronic, then a continuity of symptoms after service is required to support the claim for service connection. 38 C.F.R. § 3.303(b). There is some support for the assertion that the veteran sustained a back injury in service, inasmuch as service morning reports show hospitalization for an unspecified ailment for about a week in March-April 1946; and both the veteran and a service comrade (Mr. [redacted]'s 1991 statement) recount the event. However, the mere occurrence of a disease or injury during service does not warrant service connection. It must also be shown that a current disability is related to the service event. Assuming the March-April 1946 hospitalization in service involved a back injury, circumstances suggest the injury was only acute and transitory and resolved without residual disability. The veteran himself recalls that immediate symptoms abated with the service treatment. The absence of a chronic condition in service is also suggested by the fact that the veteran was returned to duty on release from the hospital in April 1946 and served a number of months thereafter before being given a regular discharge from service in November 1946. There are no actual medical records of treatment for a low back condition until 1977, when the veteran was seen by Dr. Johnson and lumbosacral degenerative disc disease was diagnosed. The absence of medical treatment records for decades after service is probative evidence against a continuity of symptoms since service. Mense v. Derwinski, 1 Vet. App. 354 (1991). While there are some historical references to relevant treatment from an earlier date, the credible evidence suggests no treatment prior to the 1960s. At his 1992 RO hearing the veteran alleged treatment during the 1950s, but this conflicts with what he reported in his 1977 and 1991 compensation claims (first reported post-service treatment in the 1960s), what he reported when treated by Dr. Johnson in 1977 (first treated at that clinic in 1960), and what he reported to Dr. Hutson during the consultation at Baptist Medical Center in 1982 (first time for a low back pain episode was in 1961). The more credible evidence establishes no medical treatment for a back condition during the 1946-1960 time frame, which militates against service connection. Mense, supra. The veteran's history of a service back injury, when he saw Dr. Johnson in 1977, adds little to the strength of his claim, partly because the history (as reported in a "to whom it may concern" letter) appears to have been recited for the purpose of a contemporaneous claim for service connection, rather than having been spontaneously made in the course of clinical treatment (such as the history given at Baptist Medical Center in 1982, dating the problem to 1961). The 1992 VA examination diagnosed residuals of a lumbar spine injury with degenerative changes, and the examiner intimated that the injury occurred in service (the examiner recited the veteran's history of a service injury, with purported continued treatment in the 1950s, 1960s, and thereafter). However, such medical assessments have little or no probative value where, as here, they are based on uncorroborated histories provided by the veteran. Reonal v. Brown, 5 Vet. App. 458 (1993); Cahall v. Brown, No. 93-773 (U.S. Vet. App. December 19, 1994). The veteran himself, being a layman, has no competence to offer a medical opinion that his current low back disorder is etiologically related to a service injury. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The preponderance of the evidence establishes that a chronic low back disability was not present in service or for years later, and it was not caused by an injury or other incident of service. The claimed disability was neither incurred in nor aggravated by service. As the preponderance of this evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and service connection must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service-connection for a low back disability is denied. L. W. TOBIN 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.