Citation NR: 9704783 Decision Date: 02/11/97 Archive Date: 02/19/97 DOCKET NO. 94-48 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a low back disorder, variously classified as including sacroiliitis and ankylosing spondylitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Stanley Grabia, Associate Counsel INTRODUCTION The appellant had active duty for training (ACDUTRA) from March 1982 to July 1982. The appellant also had periods of inactive duty for training (INACDUTRA) with both the Army National Guard (ANG) in February 1982, and from August 1982 to February 1985, and with the Army Reserve (USAR) from February 1985 to September 1992. During this period, the appellant had periods ACDUTRA. The instant claim comes from two periods of ACDUTRA, one in May 1986, and one in July 1987. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) regional office (RO) in Denver, Colorado which denied entitlement to service connection for a variously characterized low back disorder. The Board has noted that the appellant raised several other issues. These issues have not been developed for appellate review. As such, they are referred to the RO for development as appropriate. Kellar v. Brown, 6 Vet.App. 157 (1994). The instant appeal is limited to the issue set forth on the title page. This was the issue agreed upon at the time of the personal hearing before the Board in Washington, D.C. in December 1996. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that she suffers from chronic back pain caused by sacroiliitis. She contends that she suffered injuries to her back during ACDUTRA in 1986, and in July 1987 which either caused sacroiliitis, or aggravated it. She contends that she has had continued pain since that time. It is asserted that the back pain stems from an incident in July 1987 when the appellant was pushed or bumped by a truck that was backing up. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the appellant'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 appellant’s claim for service connection for a low back disorder however characterized. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appellant's appeal has been obtained by the RO. 2. The appellant unequivocally had a lower back disorder which preexisted her entering into ACDUTRA in July 1987. This back disorder is not shown to be related to any earlier period of ACDUTRA or INACDUTRA. 3. Appellant claimed to have injured her lower back in an accident on July 7, 1987 during ACDUTRA. 4. USAR medical records from her period of ACDUTRA indicate she was seen 3 times for lower back pain. It was noted that she had been treated by a doctor prior to entering ACDUTRA and was taking medication for the disorder. She did not mention any trauma or injury to the back to the examiners. Physical examination in November 1989 did not reveal any spinal abnormalities. 5. A USAR Physical Evaluation Board in April 1992 diagnosed appellant with ankylosing spondylitis, EPTS, and not service aggravated. She was found to be unfit for military duty and was separated from the reserves in September 1992. 6. Subsequent private and VA examinations have described her lower back disorder as either sacroiliitis, or ankylosing spondylitis. No competent evidence attributing either of these disorders to any occurrence or event related to training. 7. There is no medical evidence, or opinion which would indicate appellant’s pre-existing lower back disorder described as either sacroiliitis or ankylosing spondylitis, was incurred or permanently increased in its severity during training. CONCLUSION OF LAW Appellant’s low back disorder variously described as sacroiliitis or ankylosing spondylitis was not incurred in or aggravated by ACDUTRA, and was not incurred in or aggravated by INACDUTRA. 38 U.S.C.A. § 101 (24), 106, 1131 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION A person who submits a claim for benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107. After reviewing the evidence on file the Board concludes that the appellant’s claim for service connection for a back disability, variously described, is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the claim presented is not inherently implausible. The evidentiary assertions of the appellant are presumed to be credible for the purpose of determining that the claim is well grounded. Furthermore, the Board conclude that all facts pertinent to the plausible claim have been developed and that as such, there is no further duty to assist in developing the claim as contemplated by 38 U.S.C.A. § 5107(a). Appellant was initially claiming direct service connection for sacroiliitis. There is evidence on file as to the current pathology, but the medical evidence indicates that the condition preexisted ACDUTRA in July 1987. During the Board hearing in December 1996, appellant’s representative argued in the alternative for aggravation of a pre-existing condition. Therefore, the issue for resolution is whether said disability was either incurred in/or aggravated by ACDUTRA. There is no presumption of soundness at entrance into ACDUTRA because appellant is not a veteran. Only veterans are entitled to that presumption under 38 U.S.C.A. § 1111 (West 1991). Under 38 U.S.C.A. § 101(2) a "veteran" is a person who served in active military, naval, or air service. Under 38 U.S.C.A. § 101(24) "active military, naval, or air service includes active duty, any period of [ACDUTRA] during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty." Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA or disability incurred or aggravated by INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. Under 38 U.S.C.A. § 101(22) (a) and (c) ACDUTRA means, in pertinent part, full-time duty in the Armed Forces performed by Reserves for training and full-time duty as members of the Army National Guard or Air National Guard of any State. For service connection on the basis of the aggravation of a preexisting disability there must be an increase in disability during service. 38 U.S.C.A. § 1153 (West 1991). The United States Court of Veterans Appeals held in Hunt v. Derwinski, 1 Vet.App. 292, 296 (1991) that a disorder is aggravated if there is an increase in the disability. It has been held that “temporary or intermittent flare-ups of a pre- existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened.” Hunt v. Derwinski, 1 Vet.App. 292, 297 (1991). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet.App. 204, 207 (1991). When all of the relevant evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against her claim, in which case the claim is denied. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990) The appellant’s USAR medical records reveal that she had complained of, and been treated for back pains beginning in early 1987 until the present time. This history of back complaints and treatment preceded the alleged accident during ACDUTRA in July 1987, and continued during periods of INACDUTRA. Significantly, however, it is not shown prior to early 1987, and is not shown to be related to any ACDUTRA in 1986. The appellant was first seen privately in February 1987. At that time, there was not history of any relationship to service. She was also seen just prior to going onto ACDUTRA in July 1987. The appellant claimed to have initially injured her back during ACDUTRA in May 1986. The records are negative for any complaints, treatment, or diagnosis of a back injury, or disorder in May 1986, or thereabouts. She claimed to have again injured her back in an accident during ACDUTRA on July 7, 1987, when a trailer she was leaning on moved and jerked her back. The medical records indicate that she was seen one day prior to the accident, on July 6, 1987, with complaints of intermittent lower back pain of a one week period. She stated the pain began radiating down her left posterior leg 3 or 4 days prior. She had occasional radiation to the anterior upper right leg and also stiffness of the neck. She denied any recent trauma, or injury involving her back. It was noted that she had X-rays taken on July 3, 1987. (two days prior to ACDUTRA) Her physician was treating her with Dolobid and Flexeril. (Again, private records on file show complaints and treatment from February 1987, and just prior to entry into the pertinent period of ACDUTRA.) She was again see on July 9, 1987 (two days after the accident), and on July 13, 1987 with complaints of lower back pain, and sciatic radiation of the lower back for 2 weeks. The examiner observed that appellant did not appear to be in pain. He diagnosed her with lower back strain, and continued the use of Flexeril with heat and fluid intake. It is noted that appellant made no mention of the accident to the examiners. However, the file contains several copies of a DA Form 2173- Statement of Medical Examination and Duty Status. This form noted the appellant was accidentally jerked forward on her lower back in a trailer accident on July 7, 1987. It is dated July 7, 1987, and signed by a Sergeant [redacted]. There were numerous other entries during her USAR service period indicating complaints, and treatment for lower back pain, strain, lower lumbar pain, radiation to buttocks, paresthesia, and hyperextension.. It is significant, however, that on service department examination in November 1989, a history was given of having, or having had had recurrent back pain. Physical examination at that time, was however, completely normal. An examination in August 1991 noted a history of left sacroiliac joint pain (post traumatic). An MRI of the sacroiliac joints noted a signal dropout of the lower 2/3 of the sacroiliac joints consistent with sclerosis. There was also increased signal in the ilium and sacrum consistent with edema. The impression was extensive sclerosis, and bony edema consistent with bilateral sacroiliitis. A medical evaluation board for retention was convened in December 1991. The examiner noted a history of lower back pain from 1987. Appellant was struck by the tailgate of a truck. She was not thrown from the vehicle. It apparently was traveling less than 5 miles an hour. She complained of still having some discomfort in the morning and during the day. An orthopedics evaluation in April 1991 was inconclusive, and she was referred to rheumatology. Her back revealed a full range of motion with good flexion and extension. There was mild bilateral sacroiliac joint tenderness. She had been treated successfully with indomethacin therapy for ankylosing spondylitis. The examiner referred appellant to a physical evaluation board for a formal evaluation. He noted that while the ankylosing spondylitis was stable, and had improved on indomethacin, the nature of the illness in the future was unpredictable, and may be associated with exacerbation and remissions, or slowly progressive spinal fusion. She also had significant inflammation of her sacroiliac joints manifested by erosions and sclerotic changes of her sacroiliac joints. The physical evaluation board convened in April 1992. The board held that appellant suffered from chronic lower back pain with inflammatory arthritis of the sacroiliac joints and elevated sedimentation rate which had been diagnosed by the medical evaluation board as ankylosing spondylitis, EPTS, and not service aggravated. The board further noted that there was insufficient objective evidence or authoritative reference to support the appellant’s reported traumatic injury as the etiological source of the current medical disease. The board found her to be unfit medically for military duty and recommended she be separated from service. She was discharged from the Reserves in September 1992. In a VA examination in November 1992, appellant reported back pains beginning in May 1986. She reported injuring her back in the trailer accident in July 1987. The examiner noted that the appellant brought in approximately 30 pages of documentation referring to her back injury and treatment. Her symptoms were pain in her lower back, and sometimes down her legs, right more than left. This pain was intermittent. She indicated that she could walk indefinitely, but must go slowly. Standing sometimes bothered her back. Sitting also occasionally bothered her back. Her whole right side, neck, and arms hurt when her back did. She denied bowel, or bladder problems, and had no numbness or tingling. X-rays indicated numerous calcification densities just lateral to L1 and L2 to the right. Alignment was normal, and disk spaces were well preserved. No degenerative changes were noted on the lumbar spine. The S1 joints showed periarticular sclerosis, more prominent on the iliac side. Erosions were demonstrated on both iliac and sacral sides. No bony ankylosis was clearly demonstrated. However the examiner’s impression was of changes in the S1 joints consistent with ankylosing spondylitis. A hearing was held at the RO in January 1994. When asked when she first became aware of problems with her back, she responded,” I think it was in ‘86. I really do think but I am not sure --- because in 86 is when I went to PLDC and I think that’s when I probably really hurt myself.” (PLDC is the class the appellant attended during ACDUTRA in May 1986.) The appellant then reported the July 1987 trailer accident also during a period of ACDUTRA. She indicated that she was unaware of any investigation report, or any other report being prepared at that time. A hearing was held at the Board in December 1996, in which the appellant’s representative argued that while appellant was seeking direct service connection for sacroiliitis, in the alternative he was asking for service connection for aggravation of an existing condition. Appellant stated that she first noticed a back problem after completing ACDUTRA in May 1986, and not during ACDUTRA. She then described the injury incurred during ACDUTRA in July 1987. She was hit in the lower back and knocked forward by the tailgate on a trailer. She indicated that she did not seek medical treatment during ACDUTRA, but waited until she returned to her unit. During the hearing, it was stated that appellant was treated for her back injury at the Salt Lake City VA Medical Center (VAMC) in July 1987. She denied being treated at the VAMC. It is noted for the record that while appellant denied any treatment for the back injury during ACDUTRA, she was in fact treated three times for complaints of lower back pain which began a week or more before ACDUTRA. The third record is dated July 13, 1987 and the location of the treating facility is not noted on the medical record. This facility may have been VAMC, or inadvertently presumed to have been. The representative stated that a military medical review board determined that the appellant’s back disorder was incurred and aggravated in the line of duty, while a physical review board held that it was not incurred in the line of duty. The incorrect determination, that this was due to duty, however, was based on a later recorded history that is not confirmed by the evidence on file. While it appears that the appellant may have sustained the event in July 1987, there is no competent evidence in the record demonstrating that the preexisting back pathology was made worse by the event. The appellant’s history does not provide a sound basis for the improper holding. After the comprehensive review of the record, the disorder was held not in the line of duty. This conclusion is more probative. Substantial medical evidence is of record. This includes several copies of numerous ANG/USAR, VA, and private medical records. These show a history of treatment for complaints of back pain from approximately March 1987, which predates the ACDUTRA injury by approximately four months, to the present, without frequent treatment in the late 1980’s. The primary diagnosis has shifted back and forth between ankylosing spondylitis and sacroiliitis. These diagnoses have been recorded in the early 1990’s. The record does not contain competent opinion associating these findings with any duty related occurrence or event. There are no records of any complaints, treatment, or diagnosis of a continuing back disorder prior to March 1987. A letter dated in September 1987 from William H. Bentley, M.D., noted that he had been evaluating the appellant for back and lower extremity pains of an approximately six month period. (This dates it to prior to the period of July ACDUTRA.) He further noted that appellant stated that she was on some military activity several months after the back pains started and a trailer bumped into her lower back and exacerbated the problem. Dr. Bentley noted that X-rays showed some transitional vertebra but little else. He does not suggest the presence of permanent aggravation of the underlying pathology by any information set forth. A letter dated in March 1992 from W.F. Peacock, M.D., diagnosed sacroiliitis, and refuted the earlier diagnosis of ankylosing spondylitis. He stated there was no evidence appellant ankylosed. Regardless, there is no opinion that whatever back disorder was found was related to military duty. A letter dated in June 1993 from Rebecca A. Fried, M.D., noted appellant suffered from sacroiliitis, without any evidence of progression radiographically over several years. She also refuted the earlier diagnosis of ankylosing spondylitis by the military physical evaluation board. Again, there is nothing recorded to suggest that the pathology found, however classified, was related to any duty event or occurrence. A letter dated in February 1994 from Anthony Falbo, M.D., noted the earlier diagnosis of ankylosing spondylitis, and sacroiliitis. His impression was that the earlier diagnosis was correct, (in spite of the opinions of Drs. Peacock and Fried noted above) and that appellant had both ankylosing spondylitis, and sacroiliitis. No opinion relating the pathology to duty was offered. The file also contains several buddy statements and lay statements which attest that the appellant either injured her back, or was suffering from a back disorder, or other disorder. The only statement actually attesting to witnessing the alleged accident was a statement dated in December 1987, and signed by a SP/4 Hoskinson. She attested that appellant was standing with her back against the trailer when it hit her in the lower back knocking her forward. There is no indication in the statement that appellant was injured or sought medical treatment. The file contains additional evidence submitted by appellant at the December 1996 Board hearing. This includes a note dated in December 1996 from Dr. Falbo, written on a prescription form, which attests that appellant had “definite ankylosing spondylitis with fused S1 joints. This condition was aggravated by her accident in the military service.” The Board has reviewed the claims file, and the December 1996 Board hearing transcript. In the Board hearing, appellant’s representative stated that a military medical evaluation board determined that the appellant’s back disorder was incurred and aggravated in the line of duty, yet the physical review board held that it was not incurred in the line of duty. It is noted that the file contains a request for a medical evaluation from appellant’s reserve unit, dated in January 1991, which erroneously noted that a line of duty (LOD) determination had been made. As previously noted, an LOD determination was never made, as attested to by several incomplete copies of the determination form which are in the file. The medical review board, recorded the information received from the appellant’s reserve unit. Furthermore, the board did not make a determination as to the origin of her back disorder, it merely recorded the history as reported by appellant. The information was then forwarded to the physical evaluation board for a formal decision. The physical evaluation board convened in April 1992. In reviewing the entire record, including the incomplete LOD determination, and medical board proceedings, a final determination was made which found the condition to have preexisted the pertinent period of training, and not aggravated by ACDUTRA. Based on a review of this record, it is the conclusion of the Board that the preponderance of the evidence is against the claim for service connection for sacroiliitis. The appellant claims to have sustained a back injury during ACDUTRA. This alone, however, is not enough confirmed by the record. Chronic back disability was not shown to have been caused by duty. Appellant was seen for three separate episodes of low back pain during ACDUTRA, significantly was the lack of any reference to a back injury during this treatment. It was noted that she had been receiving treatment prior to ACDUTRA for low back pain and was taking medication for it at the time she started this period of ACDUTRA. Alternately, to grant service connection, the evidence must show that the appellant now has a disability that is related to the in-service incident, or was aggravated by it. In this case, that nexus cannot be made. Also significant is the final determination of the military physical evaluation board convening in April 1992, which found that there was insufficient objective evidence or authoritative reference to support the appellant’s reported traumatic injury as the etiological source of the current medical disease which was described as chronic lower back pain with inflammatory arthritis of the sacroiliac joints and elevated sedimentation rate, diagnosed as ankylosing spondylitis, EPTS, and not service aggravated. Moreover, while the note from Dr. Falbo opined that there was a causal relationship between the appellant’s current back disorder and her in-service injury, this opinion is based on appellant’s history and did not provide factual findings on which that opinion was based. This opinion is a variance with the service department finding. The Board concludes that the service department finding is more probative. It was closer in time to the events in question, results from a review of the record, not history provided by the claimant, and is consistent with the November 1989 physical examination wherein no pertinent abnormality was described. In addition, the Board notes that the many statements and testimony of the appellant, and letters from friends are not probative evidence as to the issue of causation. Miller v. Derwinski, 2 Vet.App. 578, 580 (1992) (quoting Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992)); Espiritu v. Derwinski, 2 Vet.App. 492 (1992); Grottveit v. Brown, 5 Vet.App. 91 (1993). The appellant and her comrades, friends and relatives are not medically trained professionals and their opinions are of limited probative value on issues of medical diagnoses and etiology. Id. When all of the relevant evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against his claim, in which case the claim is denied. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990) The appellant has contended that the back pathology stems from the inservice event. She is not competent to make that nexus. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Furthermore, for the reasons above, the evidence does not support this conclusion. It is clear from private and service treatment records that the appellant was treated prior to July 7, 1987, for back pathology. It is also clear that the great bulk of the evidence reveals that the pre- service back disorder was not aggravated by the incident reported in July 1987. Sacroiliitis and ankylosing spondylitis have not been associated with any in-service occurrence or event by any competent evidence. As such, the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107. ORDER Service connection for a low back disorder, variously classified, is denied. MICHAEL D. LYON Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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 & Supp. 1996), 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, 102 Stat. 4105, 4122 (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. - 2 -