Citation Nr: 0028800 Decision Date: 10/31/00 Archive Date: 11/03/00 DOCKET NO. 97-29 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a low back disability characterized as spondylolysis of L5. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD David T. Cherry, Associate Counsel INTRODUCTION The veteran served on active duty from May 17, 1982, to March 3, 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1997 rating decision of the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO), which held that new and material evidence had not been submitted to reopen the claim of entitlement to service connection for spondylolysis of L5. In March 1999, the Board held that new and material evidence had been submitted to reopen the claim and remanded it for further development. FINDINGS OF FACT 1. There is medical evidence that the veteran had back problems prior to service and, although spondylolysis of L5 was not noted at entrance, it is a congenital defect which, by its nature, would have preexisted service. 2. The preponderance of the competent and probative medical evidence shows that no current acquired low back disability had its onset during service, or is otherwise related to active service, and that the veteran's symptom of back pain during service was not indicative of the onset of a chronic acquired back disorder or of an increase of the underlying pathology of spondylolysis. CONCLUSION OF LAW Congenital spondylolysis of L5 is not a disease or disability for which service connection may be granted within the meaning of applicable legislation providing VA disability compensation benefits and a chronic acquired low back disorder was not incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(c) (1999); VAOPGCPREC 82-90 (July 18, 1990). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Private medical records from C.D. Tisdale, D.O., show that on October 6, 1977, the veteran complained of a backache. The assessment was acute low back strain on the left side; medication was prescribed. On October 12, 1977, it was noted that the back condition had improved, but that medication would be continued. On October 25, 1977, it was again noted that the condition had improved. In November 1980, he complained of low back pain. He was given medication for low back strain. In late January 1982, the veteran reported that he had had low back pain for three weeks. The assessment was a lower lumbar strain from lifting a heavy pipe; medication was prescribed. In mid-February 1982, he reported that he continued to have back pain, but that it had decreased in severity. In an April 12, 1982, statement, Dr. Tisdale said that he had treated the veteran for backache and other conditions since 1977, and that the veteran had completely recovered from all. The veteran's service medical records reflect that he underwent an entrance examination on April 14, 1982. His entrance examination report shows that he reported having been hit in the right sacroiliac area in 1977 while playing football and that he was treated with manipulation and pills. He indicated that he recovered from that injury and denied any symptoms since then. On physical examination, the veteran's spine/other musculoskeletal system was deemed abnormal. On the summary of defects and diagnoses, his 1977 injury was noted and it was indicated that he had a lordotic back. Reference was made to the orthopedic clinic at Brooke Army Medical Center at Fort Sam Houston, San Antonio, Texas, with further notation of states resolved- acute lumbosacral strain. X-rays and an orthopedic evaluation were recommended. On April 16, 1982, the veteran was found to be qualified for enlistment. On May 11, 1982 there was a recruit screening that noted genu valgus, and on May 17, 1982, it was noted that no disqualifying defects or communicable diseases were noted. On August 31, 1982, the veteran complained of lower pain since June 17, 1982. It was noted that he been injured in 1977 while playing football and had been treated with chiropractic manipulation. He said that his back was evaluated and that he was granted a waiver to enter the Marine Corps. He reported that he had difficulty "humping hills" during boot camp, which increased the low back pain. He said that the pain was worse in the morning and radiated into the lower thoracic spine area. He denied any radiation into the legs. Physical examination revealed that the back had a full range of motion. There was no edema, erythema or ecchymosis. There was pain on palpation from the T12 to S1 area with an increase in pain at the L4 to S1 area. There was no pain with recumbent leg lifts. The assessment was pain in the back of unknown etiology. On September 3, 1982, the veteran reported that he had had lower pain for the past two months. It was noted that he had injured his back in 1977 playing football. He indicated that he had a burning pain. There was good range of motion, with no edema or ecchymosis. The assessment was muscle strain. On February 2, 1983, the veteran complained of low back pain since the 1977 injury. It was noted that it had hurt mostly in boot camp during "hill humping." He indicated that the pain started in the mid-lower back and that it radiated up alongside the spinal cord. Physical examination revealed full range of motion. There was no edema or ecchymosis. X- rays revealed an abnormal L5. The assessment was abnormal fifth lumbar. On February 10, 1983, the veteran underwent an evaluation by a Medical Board. He reported that he had had back pain since 1977 when he was hit in his back while playing football and had been treated by a chiropractor who told him he had a sprain and treated his back with manipulation. The veteran indicated that he had continuing back pain and had not been able to return to football. It was indicated that, at the time of his entrance examination, he had increased lumbar lordosis and was sent for an evaluation to a contract civilian orthopedic surgeon who found no abnormalities and recommended that he be allowed to enlist. The veteran indicated that he did satisfactorily in boot camp until he was required to go up and down hills with a pack and that then an intolerable back pain developed. He said that he could not lift anything heavier than twenty pounds, do sit- ups, sit or stand for a long time, or run for more than a mile. Physical examination showed an increased thoracic kyphosis and lumbar lordosis. Marked genu varum was also noted. On palpation of the lumbar spine, a step-off could be felt between L5 and S1, and there was tenderness in that area. There was no paravertebral tenderness or muscle spasm. On forward flexion, the veteran's fingertips came to the floor. Extension and lateral bending were full with some discomfort. The neurologic examination showed 2+ patellar and ankle reflexes, no Babinski's sign, and normal motor testing. On sensory testing, the veteran noted some hypesthesia of the dorsal and lateral aspects of the left foot and the anterior aspect of the right thigh. X-rays of the lumbar spine revealed bilateral spondylolysis of L5 and no spondylolisthesis. The diagnosis was bilateral spondylolysis of L5 that existed prior to entrance and was not service aggravated. The opinion of the Medical Board was that the veteran did not meet the minimum standards for enlistment or induction and that he was unfit for further service by reason of a physical disability that was neither incurred in, nor aggravated by, a period of active service. Discharge was recommended. On February 17, 1983, the veteran was informed of the findings of the Medical Board and waived his right to a hearing before a Physical Evaluation Board. In March 1983, the veteran was discharged from active service. Medical records from Dr. Tisdale reveal that on February 16, 1984, it was noted that a complete series of X-rays of the lumbar spine was ordered to rule out a congenital abnormality. The X-ray report reflects that films of the lumbar spine showed bilateral spondylolysis at L5 and no other abnormal findings. The lumbar lordosis was normal; there was no evidence of spondylolisthesis; and the disc spaces appeared normal. September 1985 medical records from Dr. Tisdale show that the veteran reported that his right side hurt, that he felt nauseated, that he had a low backache, and that his right leg hurt periodically. The assessment was a tender right lower quadrant. A copy of a May 1989 VA X-ray report apparently submitted by the veteran in 1990 pertains to another individual. The report of a December 27, 1989, private lumbar spine X-ray series reflects that there was a very mild degree of dextroscoliosis probably on a positional basis, pars defects at the L5 level bilaterally, no spondylolisthesis, and normally maintained intervertebral disc spaces with normal pedicels and sacroiliac joints. The radiographic impression was bilateral spondylolysis at L5 and no spondylolisthesis. On an NA Form 13017 (reply to medical records/X-rays request), dated in January 1990 and in a response to the veteran's request for his service medical records, the service department indicated that the available medical records were enclosed. The service department noted that the type of X-rays that he had requested was usually kept for five years at the facility where taken and then was eligible for destruction. Private medical records show that on January 23, 1990, the veteran underwent a physical examination by D. Tobin, M.D., who noted that he had a history of bilateral spondylolysis at L5 with no spondylolisthesis. The doctor indicated that X- rays were taken on December 27, 1989, and that spondylolysis may have been present on prior X-rays taken in the Marine Corps. The veteran reported a history of possible lumbar strain that was initially treated with Motrin, but did not really improve. It had been recommended that he only perform light duty, but his employer would not let him return at light duty because of his job, which involved storing, stocking and lifting various heavy parts, which weighed from thirty to one 125 pounds. It was noted that his original injury was on "Tuesday the 19th" and that it involved pulling out a large rack, which slipped and resulted in him pulling his back down with a strain. His pain was initially over the low lumbar midline area and occasionally radiated out, more to the left. On the "21st," he reinjured his back and had more severe pain going down both legs, especially to the left foot. He had some peculiar paresthesia and numbness in both legs with the left being greater than the right. There was no muscle weakness. He had a feeling that his whole right leg was going numb. It was noted that Motrin had not really helped and that he had switched to over-the- counter Advil. He denied any other back injuries, but reported that he was told when he was a Marine that he had some sort of back defect. On physical examination, the veteran could walk normally on his toes and heels. Straight leg raising was negative. Deep tendon reflexes of the lower extremities were all normal. Motor and sensory examinations were normal. The range of motion of the back was somewhat limited, and there was slight paraspinal spasm in the lower lumbar area on the left. The impression was that the veteran might have initially had a lumbar strain, but that he subsequently reinjured his back and now claimed not only low back pain, but also a bilateral radiating type radicular pain along with paresthesia and numbness into both legs with the left being greater than the right. In view of this history and his requirement to do heavy work, it was noted that a central and left lateral or paracentral disc herniation either at L3-L4 or L4-5 should be ruled out. A computed tomography (CT) scan and electromyography (EMG) were recommended to assess his radicular leg symptoms and paresthesia. That same day, January 23, 1990, the veteran underwent private EMG and nerve conduction velocity (NCV) studies. The impression was that there was no evidence of overt radiculopathy, but that EMG might be negative for someone with mild central or paracentral disc syndrome. On January 25, 1990, the veteran underwent a private CT scan of the lumbar spine, which revealed a probable central posterior disc bulging in the superior aspect of the L4-L5 disc. The CT scan was considered to be very mildly abnormal. It was noted that no herniated nucleus pulposus was seen. In a January 25, 1990, statement, Dr. Tobin noted that the CT scan revealed only a very minimal central bulging at L4-L5, and that there was no evidence of herniation, to include specifically nerve root encroachment on either side. Dr. Tobin concluded that the veteran's symptomatology was probably referred pain from his bulging disc syndrome and that he had no active radicular complaints or problems at that time. In a January 1990 statement, the veteran said that the "step off" between L5 and S1 noted by the February 1983 Medical Board was not present on entrance. He indicated that, if his condition had not been severe enough to be documented on entrance, then it must have been aggravated, or caused, by service to have deteriorated so rapidly in such a short time. He enclosed a copy of his entrance examination report. A May 1990 private magnetic resonance imaging (MRI) scan of the lumbar spine revealed slight bulging and hypertrophic spurring at L4-L5. The veteran underwent a private lumbar discogram in June 1990. The L4-L5 disc was radiographically intact and normal. The L5-S1 disc had a minimally degenerative alteration with posterior leakage of contrast along the needle tract. The injection was accompanied by low back pain. It was also noted that the spondylosis at L5 was associated with very minimal spondylolisthesis at L5-S1. At an August 1990 hearing held at the RO before a hearing officer, the veteran testified that he had back spasms in 1977 when he played football and that he did not have any problems after he was treated. He said that he quit playing football because he did not want to be injured again and not because he still had back spasms. He indicated that X-rays of the lumbar spine were taken twice before he entered the Marine Corps and that a doctor told him that there was nothing wrong with him. He noted that he started having trouble with his back during basic training when he was marching and started climbing hills, with resultant muscle spasms. He testified that he continued to have back spasms, which he ignored until he could no longer do pull-ups. He said that X-rays were then taken, that he was told he had "spondylosis" of L5, and that he was discharged from service. He indicated that he continued to have problems with his back after service. His spouse testified that he did not have back problems prior to going into the Marine Corps. Transcript. On December 6, 1990, the veteran underwent the following operations: a bilateral total decompressive laminectomy of L5, bilateral foraminotomies and decompression of L5 and S1 nerve roots, exploration of L4-L5 and L5-S1 disk surfaces, and a lateral lumbar fusion, L4 to S1. The lateral lumbar fusion was performed by a B. Cameron, M.D., whereas the other three operations were performed by A. Evans, M.D. In Dr. Evans' report of operation, it was noted that the pre- operative diagnoses were lumbar spondylolysis at L5-S1 and mechanical low back pain. The post-operative diagnoses were the same. It was indicated that on exploration the veteran was found to have a bilateral spondylolysis defect involving L5 and that the neural arch of L5 was very loose and not attached on either side. Dr. Evans noted that it had the appearance of a "typical congenital spondylolysis." On exploration around each nerve, there was no evidence of disc herniation at either level. The L4-L5 disk surface space was firm and flat and showed no evidence of herniation. The L5- S1 disk surface was also flat but somewhat soft. It was noted that the prior diskogram showed a reasonably normal radiographic appearance, but that the injection produced low back pain. Dr. Evans opined that the low back pain was not because of herniation of the disk, but presumably because of the spondylolysis involving the segment at L5-S1. Dr. Evans concluded that, in the absence of any direct findings of protrusion or herniation, the disk should not be removed. In Dr. Cameron's report of operation notes that following the procedure by Dr., Evans he found that there had been a total laminectomy and the posterior structures had been removed. "It became necessary then to do a spinal fusion to obtain stability." It was specifically noted that because the entire lamina had been removed (during the laminectomy) it became absolutely necessary to stabilize the L5-S1 process. The pre- and post-operative diagnoses were spondylolisthesis at L5-S1. The veteran was discharged from the hospital on December 10, 1990. In the discharge summary, it was noted that he had a previous injury on December 19, 1989, in a work-related accident, and that he had had continued back pain and radiation down the left lower extremity with occasional paresthesia since that injury. It was indicated that he responded well post-operatively. The principal diagnosis was lumbar spondylosis of L5-S1. The discharge summary was prepared by Dr. Cameron. The veteran underwent a private EMG in August 1991. The impressions were the following: (1) that the EMG results were compatible with very mild irritability to the S1 nerve root compatible with chronic changes, which was normal after a lumbar laminectomy; and (2) that a mild delayed H-reflex was present, which was secondary to the irritability to the S1 nerve root. In an October 1996 statement, Dr. Cameron noted that he initially saw the veteran on April 9, 1990, after he had sustained an injury while working for the B.D. Holt Company. Dr. Cameron reported that the veteran was worked up and spondylolysis was found and that, on December 6, 1990, he underwent a decompressive laminectomy and spinal fusion at L5-S1 and had progressed satisfactorily since then. Dr. Cameron said that he saw the veteran at follow-up visits in July 1993 and September 1994, and that at those times he was solid, had recovered and was working without restrictions. Dr. Cameron noted that he had reviewed records from the San Diego Naval Hospital, and that the vetera had complained of back pain when strapping on heavy equipment/backpacks, apparently as reported in the February 1983 Medical Board report. Dr. Cameron further noted that according to the entrance examination the veteran had been found qualified for service. Dr. Cameron further stated that the bilateral spondylolysis of L5 diagnosed during service was that the same thing that he operated on, and that it was a congenital abnormality "which obviously aggravated by his service in the Marine Corps." Dr. Cameron noted that the veteran was approved for admission, he was put on duty, and following the duties necessary for Marine participation, the lesion became "aggravated and painful." He noted that this was a preexisting, congenital condition that was definitely aggravated by the veteran's Marine Corps service and had been completely cured by surgery. Dr. Cameron emphasized that the spondylolysis was a "congenital abnormality which was positively aggravated by service...." In March 1999, the Board reopened the claim of entitlement to service connection for spondylolysis of L5 and remanded it for further development, to include a VA examination. In an April 1999 statement, the veteran said that his work- related injury was on December 27, 1989, and that he filed a Workers' Compensation claim in January 1990 against the B.D. Holt Company, which was now known as the Holt Company. He intimated that the work-related injury was the same disability as his in-service injury. He also submitted various medical records pertaining to the treatment by Dr. Cameron along with a VA Form 21-4142 (authorization and consent to release information to the VA) for Dr. Cameron's records. In late April 1999, the veteran submitted a document from the Texas Industrial Accident Board. That document reveals that he had a work-related back injury on December 19, 1989, while working at the Holt Company. That document also notes that the Industrial Accident Board received information to establish the probability of a compensable lost time injury. September 1999 VA X-rays of the lumbar spine revealed a laminectomy of L5 with bony graft along L5-S1. The veteran was afforded a VA examination in November 1999. The examiner indicated that the claims file and a copy of the March 1999 Board remand had been reviewed. The veteran reported that, after his discharge from active service, he continued to have back pain and that he injured his low back in 1989 at work. He said that he still had back pain along with intermittent activity-related muscle spasms. He indicated that, even though he had had surgery, he was unable to lift, twist, turn, or reach above his head because of low back pain. Physical examination revealed significant paraspinal spasm, decreased range of motion, and sluggish ankle jerks. There were no pathologic reflexes and no evidence of significant weakness. It was noted that X-rays revealed a solid surgical arthrodesis of L5 on S1 and that the fusion from L5 to S1 appeared to be solid. There was also a decompressive laminectomy at L5. The diagnoses were (1) lumbar spondylolysis at L5-S1, and (2) postoperative lumbosacral spine fusion of L5-S1 - lateral mass for lumbar spondylosis without spondylolisthesis. The examiner noted that the veteran's case was very complicated and difficult to completely assess because some of the records from the time of entrance into active service have been lost; in particular, the X-rays taken at entrance. The examiner noted that he had reviewed the statement in the operative report by Dr. Evans indicating that the veteran's spondylolysis was "typical congenital spondylolysis." The examiner stated that the notation implied that spondylolysis was present on entrance into active service. The examiner also noted that the veteran was able to complete phase one of boot camp, but was injured during phase two. The examiner indicated that he had spent the past several weeks reviewing the case with colleagues in various disciplines including neurosurgery, orthopedics and physical medicine rehabilitation. The examiner noted that it was his opinion, and the consensus opinion of his colleagues, that the prime fact pointing to the veteran's back problem not have been exacerbated during active service was the work requirements that the veteran performed prior to his work-related injury in 1989. The examiner opined that, if the veteran were able to perform the heavy lifting and twisting activities described by Dr. Tobin in his note, then it was likely that his in-service injury was a specific mechanical injury rather than any discogenic pathology or exacerbation of mechanical pain. The examiner noted that, if the back had been significantly injured in service, then the veteran would not have been hired for a job requiring heavy lifting and other factors such as twisting, turning, reaching and pulling. The examiner indicated that the veteran clearly sustained an injury during active service, which caused a lumbar strain, but that the lumbar strain had resolved prior to him being hired for a job requiring heavy lifting. With regard to the work-related injury in 1989, the examiner indicated that the time frame from the injury to his lower back in 1982 during the second phase of his training in the Marine Corps was not a "straight line connection." The examiner noted that his rationale was clearly based on the veteran's work history and that, if the veteran had not been able to perform any kind of heavy lifting activities, then a more "straight line connection" would have been present. The examiner opined that the lumbar spondylolysis was congenital, reiterating that the in-service lumbar strain had resolved prior to the work-related injury in 1989. The examiner also concluded that the work-related injury was clearly related to the lumbar spondylolysis, but that the injury was not "'preselected'" because of his active service. In June 2000, the Holt Company of Texas indicated that they no longer had personnel records from the period in which the veteran sustained a work-related low back injury because their records were destroyed after five years of storage. In August 2000, the service department provided microfiche containing all available service medical records. The records were already in the file. Legal Criteria Service connection may be established for a disability resulting from a personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in the line of duty. 38 U.S.C.A. § 1131. While congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation, any disability from a superimposed chronic acquired disease or injury during service may be considered for service connection. See 38 C.F.R. § 3.303(c) (1999); VAOPGCPREC 82-90 (July 18, 1990). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed prior thereto. Only such conditions as are recorded on examination reports are to be considered as noted. 38 U.S.C.A. §§ 1111, 1137 (West 1991); 38 C.F.R. § 3.304 (1999). The presumption of soundness only applies where there has been an induction examination in which the later- complained-of disability was not detected. Crowe v. Brown, 7 Vet. App. 238 (1994). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991). If there is peacetime service after December 31, 1946, clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. Medical facts and principles may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service. 38 C.F.R. § 3.306(b) (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). If a veteran had 90 days or more of peacetime service after December 31, 1946, and arthritis is manifested to a compensable degree within one year, it shall be presumed to have been incurred in service. This is a rebuttable presumption. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). This rule does not mean that any manifestation in service will permit service connection. To show a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required where the condition noted during service or in the presumptive period is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the condition noted during service is not shown to be chronic or the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The regulation requires continuity of symptomatology, not continuity of treatment. Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter "the Court") has established the following rules with regard to claims addressing the issue of chronicity. The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter, and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997). A lay person is competent to testify only as to observable symptoms. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). A layperson is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability, unless such a relationship is one to which a lay person's observation is competent. See Savage, 10 Vet. App. at 495- 97. In order for a claim to be well grounded, there must be competent evidence of the following: (1) a current disability, in the form of a medical diagnosis; (2) incurrence or aggravation of a disease or injury in service, in the form of lay or medical evidence; and (3) a nexus between the in-service aggravation or injury or disease and the current disability, in the form of medical evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). The Court has held that a lay party is not competent to provide probative evidence as to matters requiring expertise derived from specialized medical knowledge, skill, expertise, training, or education. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). A layperson's account of what a physician said is also not competent medical evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1999). There is a heightened obligation to explain findings and conclusions and to consider carefully the benefit of the doubt rule in cases in which records are presumed to have been or were destroyed while the file was in the possession of the government. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Analysis The threshold question is whether the appellant has presented evidence of a well-grounded claim. The Court has defined a well-grounded claim as a claim that is plausible. In other words, a well-grounded claim is meritorious on its own or capable of substantiation. If the claim is not well grounded, the appeal must fail. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In this case, Dr. Cameron's October 1996 statement, in which he opined that the veteran's spondylolysis of L5 was aggravated during active service, renders the claim well grounded. Accordingly, VA has a duty to assist the appellant in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Board also finds that all evidence necessary for an equitable adjudication of the appellant's claim has been obtained and that the duty to assist the claimant is satisfied. See Stegall v. West, 11 Vet. App. 268 (1998). The veteran is shown to have spondylolysis which is defined as a "dissolution of a vertebra; a condition marked by platyspondylisis, aplasia of the vertebral arch, and separation of the pars interarticularis." Smith v. Derwinski, 1 Vet. App. 235, 236 (1991) (quoting Dorland's Illustrated Medical Dictionary 1567 (27th ed. 1988)). Platyspondylisis is a "congenital [present at birth] flattening of the vertebral bodies." Smith, 1 Vet. App. at 236 (quoting Dorland's at 111 (alteration added by the Court)). Aplasia is a "lack of development of an organ or tissue, or of the cellular products from an organ or tissue." Smith, 1 Vet. App. at 236 (quoting Dorland's at 1308). The first matter is whether a back disorder, to include spondylolysis of L5, was noted on entrance into service. The veteran clearly had a history of a pre-service, football- related, back injury in 1977, and he was referred for X-rays and orthopedic consultation in conjunction with his enlistment examination. However, the evidence shows that his pre-service acute lumbosacral strain had resolved and a contract civilian orthopedic surgeon found no abnormalities and recommended that he be allowed to enlist. On April 16, 1982, he was found to be qualified for enlistment. On May 17, 1982, the date of entrance into service, it was indicated that no disqualifying defects or communicable diseases were noted. Thus a back disability, including spondylolysis, was not noted at entrance into service. See 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304. Although the record does not show that the veteran was noted to have back strain or any other acquired back disorder when he was examined for service, there are repeated references in the record to spondylolysis being congenital (present at birth). Additionally, Dr. Cameron, the veteran's private physician, stated that spondylolysis was a congenital "preexisting" condition. In any event, by virtue of being a congenital defect, spondylolysis of L5 is not a disability for which service connection may be granted. See 38 C.F.R. § 3.303(c); VAOPGCPREC 82-90 (July 18, 1990). The Board has reviewed the veteran's January 1990 argument that the step- off between L5 and S1, noted by the Medical Board, was not there at service entrance and his testimony that a doctor who examined him prior to service said that there was nothing wrong with him. The veteran has not been shown to have the medical expertise to determine the presence or absence of a skeletal defect such as spondylolysis and his report of what a doctor told him is not competent medical evidence because it is a layperson's account of what a physician said. Espiritu, 2 Vet. App. at 494-95. Robinette, 8 Vet. App. at 77. Furthermore, the veteran has also not presented any medical evidence or opinion that the spondylolysis of L5 is acquired in nature. Thus, it must be determined whether the veteran incurred a superimposed disease or injury of the low back during service or whether spondylolysis was otherwise "aggravated" by service so as to meet the requirements for service connection. The post-service low back diagnoses have included bulging disc syndrome, spondylolisthesis, mechanical low back pain, residuals of a laminectomy of L5, and residuals of a lateral fusion of L4 to S1. With regard to bulging disc syndrome diagnosed by Dr. Tobin, the service medical records do not reflect any disc problems and the veteran has not presented a competent medical opinion indicating that it began during or is otherwise related to service. Office records from Dr. Tisdale reflect that in 1984, about a year after service, the veteran was to have lumbar spine X- rays to rule out a congenital abnormality. It is unclear whether he had the X-rays as Dr. Tisdale does not refer to any results in his subsequent record entries. Thereafter, the veteran is shown to have injured his back at work several times, and other than Dr. Tisdale's notations, there is no post-service medical evidence of a back disability until after the work-related injuries. The January 19, 1990 report by Dr. Tobin refers to two recent work-related injuries and recent X-rays that showed spondylolysis of L-5, without spondylolisthesis. Other than noting that spondylolysis may have been present on films taken during service and that the veteran reported having been told in service that he had some type of back defect, Dr. Tobin's report does not mention the veteran's service, does not link any current symptoms to service, and does not relate any current acquired back disorder to service. The veteran underwent a laminectomy in December 1990 for his spondylolysis, described by the surgeon, Dr. Evans, as having the appearance of a "typical congenital spondylolysis." The post-operative diagnoses were spondylolysis at L5-S1 and mechanical low back pain, the same as the preoperative diagnoses. Thus, it can be concluded that Dr. Evans found nothing during the operation that he attributed to any spinal trauma or disease affecting the spine. As for the mechanical low back pain, Dr. Evans did not relate such to service. Dr. Cameron then performed a spinal fusion which, according to his operation report, was necessitated by removal of the posterior structure during the laminectomy. In fact, Dr. Cameron specifically noted that due to the type of laminectomy that had been performed it became necessary to stabilize the L5-S1 interspace. Accordingly, there is nothing in Dr. Cameron's operation report that indicates the fusion was required by a back injury or anything other than the surgery that had been performed for the spondylolysis. Thus, the report makes it clear that Dr. Cameron's pre-and post-operative diagnoses of spondylolisthesis were related to the laminectomy. None of the other medical evidence relates spondylolisthesis to service. In his October 1996 statement, Dr. Cameron opined that the veteran's spondylolysis of L5 was aggravated during service, stating that the lesion became painful and aggravated. Dr. Cameron noted that the spondylolysis was congenital and had preexisted service. He did not report that the veteran had sustained any specific trauma or disease affecting his back during service, merely noting that when the veteran had had to wear heavy gear he had back pain, thereby concluding that the spondylolysis had been aggravated. The fact that the veteran may have again experienced back symptoms, specifically pain, during service does not necessarily constitute "aggravation" so as to establish service connection for spondylolysis (or any other back disorder). The Court has held that "[t]emporary or intermittent [in-service] flare-ups" of a preservice condition, without evidence of worsening of the underlying condition (as contrasted to symptoms), "are not sufficient to be considered 'aggravation in service'". Hunt v. Derwinski, 1 Vet.App. 292, 296-97 (1991) (finding that, although there was temporary worsening of symptoms, the condition itself, which lent itself to flare-ups, did not worsen, and that the disability remained unaffected by the flare-ups). Dr. Cameron has not indicated that a superimposed acquired injury or disease affecting the low back had its onset in service or even that the underlying pathology of the spondylolysis worsened during service, if such is possible. Rather, it is clear that he has equated "aggravation" to pain, which apparently subsided as the post-service medical evidence does not document a chronicity of pain after service until the 1989 work-related injury. The November 1999 VA examiner noted that the veteran had injured his back in service while carrying a heavy rucksack, indicating that the injury caused a lumbar strain that resolved prior to the veteran's post-service manual labor job. The VA examiner stated that, based on the veteran's work history, it was likely that his in-service injury was a specific mechanical injury rather than any discogenic pathology or exacerbation of mechanical pain. This opinion was based on the type of work the veteran was able to so after his discharge from service. The VA examiner concluded that the 1989 work injury was related to the spondylolysis but that the veteran's military service had not "preselected" him for the injury. While the VA examiner's opinion is not a model of clarity, it clearly goes against the claim. That opinion does not indicate that the spondylolysis, which was documented during and after service, and is shown to be congenital and to have required surgery in 1990, began in service or underwent an increase in basic pathology during service or that the veteran currently has an acquired back disorder that is of service origin. The Board has reviewed the veteran's April 1999 argument in which he intimated that the 1989 work-related injury was the same injury that he had in service. While the veteran is competent to report his symptoms, he has not been shown to have the medical expertise to determine the etiology of a structural condition or to determine whether any other back disability is related to in-service injury; thus, his statement is not the equivalent of competent medical evidence. Espiritu, 2 Vet. App. at 494-95. In summary, the preponderance of competent and probative evidence shows that during service the veteran had a congenital abnormality, spondylolysis of L5, and that such was not incurred or aggravated by service. Thus, while Dr. Cameron's statement is sufficient to well ground the claim, it does not afford a basis for service connection even when considered with the other evidence. He did not address the fact that the veteran was able to work in an intense manual labor job after his discharge from active service or explain the basis for his conclusion that spondylolysis was aggravated during service. As pervasively noted, he appears to have equated the recurrence of back pain, which the veteran is shown to have had prior to service, to "aggravation," even though the evidence indicates that the pain resolved after service and, under case law, "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service.'" Hunt v. Derwinski, 1 Vet. App. 292 (1991), In summary, the competent and probative evidence does not show that any current acquired low back disability began in service, including as a superimposed acquired disease or injury, that any current acquired low back disability is otherwise related to active service or that there is a basis for granting service connection for spondylolysis or post- surgical residuals. Other Considerations In the March 1999 remand, the Board requested that the RO obtain records from Dr. Cameron and the records regarding any Workers' Compensation claim filed by the veteran. Although it does not appear that Dr. Cameron was contacted, the veteran submitted numerous treatment records pertaining to the surgery performed by Dr. Cameron. The surgical reports, along with Dr. Cameron's statement, address Dr. Cameron's involvement in treatment of the veteran. Therefore, the Board agrees that no additional development with regard to obtaining Dr. Cameron's records is necessary. In addition, the veteran submitted a document from the Texas Industrial Accident Board regarding his work-related injury on December 19, 1989. The RO tried to obtain the records from the veteran's former employer, but was informed that such records are destroyed after five years of storage. Thus, there is sufficient evidence regarding the work-related injury. ORDER Service connection for a low back disability characterized as spondylolysis of L5 is denied. JANE E. SHARP Veterans Law Judge Board of Veterans' Appeals