BVA9500714 DOCKET NO. 93-10 699 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a low back disability. ATTORNEY FOR THE BOARD R. T. Jones, Counsel INTRODUCTION The veteran served on active duty from October 1968 to October 1970. This matter comes to the Board of Veterans' Appeals (Board) from a December 1990 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied service connection for a low back disability. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends he has a chronic low back disability which started during service. He says he injured his back and received treatment during service. The veteran relates that for years after service his symptoms continued but he did not seek professional treatment because he was working, and that during this time he just took over-the-counter medication. He states that in the recent past his symptoms became more severe, which prompted him to go to a doctor. DECISION OF THE BOARD The Board, in accordance with 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 claim for service connection for a low back disability. FINDING OF FACT The veteran had acute and transitory low back symptoms during service, which resolved without residual disability; his current low back disorder started many years following service and was not caused by any incident during service. CONCLUSION OF LAW A chronic low back disability was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran served on active duty from October 1968 to October 1970. On a September 1968 preinduction examination, the spine was normal and the veteran had no pertinent complaints. On November 29, 1968, the veteran was seen on sick call for complaints of back pain that had persisted despite treatment. The veteran was excused from lifting or bending for one week, and medication was prescribed. In February 1969, the veteran was referred to the urology clinic because of a past history of hematuria, renal colic, and renal calculus, with current recurrence of those symptoms. The consulting physician reported that records showed no history of previous hematuria, etc., and that that history was probably inaccurate because the previous episode was treated with a bedboard and was generalized low back pain. The doctor noted that the veteran's report of his urine getting darker was questionable. The veteran said his pain began several days ago when he fell on ice and hit his back. He said he had increased back pain with motion and lifting. The impression was low back pain secondary to a bruise. Pain medication was prescribed. In March 1969, the veteran was given physical therapy and medication for low back pain. X-rays of the low back in March 1969 were reported to reveal no significant abnormality, and the next day X-rays in multiple views showed a Schmorl's node defect under the surface of the fifth lumbar vertebra. There was no narrowed disc or vertebral body fracture or dislocation. In April 1969, he was referred to an orthopedic clinic for complaints of continuing low back pain and left leg pain since he had fallen six weeks earlier and hit his back against a curb. It was noted he had been treated with pain medications and physical therapy, but the pain had persisted. The orthopedic examiner reported that the veteran had back flexion to 50 degrees and normal bending and extension. There was tenderness in the left paralumbar region. Straight leg raising was positive at 80 degrees on the left; deep tendon reflexes were normal. The doctor noted that gait, toe and heel standing, and X-rays were normal. The impression was sprain. He was given a back brace to wear for 4 to 6 weeks. Later in April the veteran reported that his back pain had persisted despite the brace; the examination was within normal limits. He was given an ice massage and a four-day waiver from exercise. In August 1969, the veteran complained of low back pain off and on for the past five months without sciatica. Examination showed negative straight leg raising and a normal examination of the back. It was also reported X-rays were within normal limits. There was an impression of a probable lumbosacral sprain. In November 1969, the veteran had complaints of chronic low back pain. Neurological findings were negative. There was an impression of lumbosacral strain. No further specific complaints relative to the back were noted during the remainder of service. In the October 1970 report of medical examination for separation from service, it was noted the spine was normal. The veteran reported that he was in good health. The veteran's initial claim for service connection for a low back disability was received in August 1990; he did not list any back treatment since service. The veteran was seen at a VA outpatient clinic in June 1991 with back complaints. He was referred to an orthopedic clinic where he reported he had fallen onto his back one week earlier with pain in the low back with radiation into the right lower extremity. He reported he had injured his back previously in 1968. Following examination, there was an assessment of a back spasm. Medication and physical therapy were prescribed. A June 1991 VA X-ray report notes that there was an alteration of the pattern involving the second lumbar vertebra which was most likely from a previous fracture. Clinical records from June and July 1991 show the veteran was treated for chronic low back pain. During those visits, there were notations the veteran reported that he had had the pain since 1968. He was seen at the clinic again in August 1991. It was reported he had been on physical therapy until the preceding July and he discontinued because of an intervening stroke. The assessment included chronic low back pain and mild hemiparesis from a cerebrovascular accident. VA outpatient records show ongoing treatment in 1992 for low back pain. In April 1992 the veteran gave a history of having low back pain since a fall in service. It was noted, in part, that the June 1991 X-rays showed a questionable old L2 fracture. Treatment was given for back pain. The impression included status post cerebrovascular accident with mechanical low back pain. A May 1992 report of lumbosacral spine X-rays notes reversal of the lordotic lumbar curve that could be due to muscular spasm; the report states there was no evidence of traumatic, destructive, or degenerative change in the bones or joints. II. Analysis The veteran has presented a well-grounded claim; that is, one which is not inherently implausible. 38 U.S.C.A. § 5107(a). Facts relevant to the issue have been properly developed, and the statutory obligation of the VA to assist the veteran in the development of his claim is satisfied. Id. In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate a particular disease or injury resulting in current disability was incurred during active service or, if preexisting service, was aggravated therein. 38 U.S.C.A. § 1110. If a condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The veteran claims that his current back problems are the result of an injury during service and represent a continuation of the back problems noted during service. The evidence shows that during service the veteran was treated for a complaint of back pain in November 1968, and, after bruising his back in a reported fall, he was treated on several occasions for low back symptoms from February to November 1969. X-rays showed no traumatic injury to the lumbosacral spine, and the low back condition was primarily diagnosed as a lumbosacral sprain or strain. Following November 1969, the veteran continued to serve on active duty for almost a year, without requiring additional treatment, and the October 1970 separation examination showed a normal spine. The service medical records do not establish a chronic low back condition during active duty; rather, they suggest only acute and transitory symptoms that fully resolved by the time of separation from service. Thus, a showing of continuity of symptoms after service is required for service connection. The veteran did not claim service connection for a low back condition until 1990, 20 years after service. He apparently first sought medical attention after service in 1991, and only then after a recent injury. The Board finds these factors to be persuasive evidence against continuity of symptoms since service, and far more probative than the veteran's recent allegation that his symptoms have persisted since service. The absence of medical treatment records for so many years after active duty suggests an absence of continuity of symptoms since service. Mense v. Derwinski, 1 Vet.App. 354 (1991). While the veteran relates his recent back problems to those in service, such a relationship is not supported by the medical evidence, and the veteran, being a layman, has no competence to offer a medical opinion on the etiology of his disorder. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The weight of the evidence establishes that the transient low back symptoms during active duty fully resolved by the time of separation from service, and that the current low back disorder started years after service and was not caused by any incident of service. A chronic low back disability was neither incurred in nor aggravated by service. As the preponderance of the 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.