Citation Nr: 0812321 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 04-40 519 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for residuals of a back injury and postoperative residuals, L5-S1 hemilaminectomy and diskectomy with L5-S1 transverse process fusion. REPRESENTATION Appellant represented by: Jeany Mark, Attorney ATTORNEY FOR THE BOARD T. Adams, Associate Counsel INTRODUCTION The veteran served in the Army on active duty from July 1977 to December 1977, with additional service in the Georgia Army National Guard from April 1977 to April 1983 and from April 1986 to April 1999. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied service connection for residuals of a back injury and postoperative residuals, L5-S1 hemilaminectomy and diskectomy with L5-S1 transverse process fusion. By a June 2007, the Board denied service connection for the veteran's back disability. The veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand, in an October 2007 Order, the Court vacated the Board decision and remanded the claim to the Board for readjudication, in accordance with the Joint Motion. FINDING OF FACT The competent medical evidence does not demonstrate that the veteran's current back disability is related to his service. CONCLUSION OF LAW The veteran's back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1133, 5103, 5103A, 5107 (West Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.307 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (2007). In May 2001 and July 2002, prior to the initial adjudication of the claim, the veteran was notified of the evidence not of record that was necessary to substantiate the claim. He was told that he needed to provide the names of persons, agency, or company who had additional records to help decide his claim. He was informed that VA would attempt to obtain review his claim and determine what additional information was needed to process his claim, schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. It was also requested that he provide evidence in his possession that pertained to the claim. There is no allegation from the veteran that he has any evidence in his possession that is needed for a full and fair adjudication of this claim. The veteran was given notice of what type of information and evidence he needed to substantiate a claim for an increased rating in November 2006 should his service connection claim be granted. It is therefore inherent in the claim that the veteran had actual knowledge of the rating element of an increased rating claim. Therefore, the Board finds that adequate notice was provided to the appellant prior to the transfer and certification of the veteran's case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, the statutes and regulations require that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. VA's duty to assist includes (1) obtaining records not in the custody of a federal department or agency; (2) obtaining records in the custody of a federal department or agency; (3) obtaining service medical records or other records relevant to active duty and VA or VA- authorized medical records; and, (4) providing medical examinations or obtaining medical opinions if necessary to decide the claim. 38 C.F.R. § 3.159(c). VA has a duty to obtain a medical examination if the evidence establishes (1) a current disability or persistent or recurrent symptoms of a disability, (2) an in-service event, injury, or disease, (3) current disability may be associated with the in-service event, and (4) there is insufficient evidence to make a decision on the claim. McClendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the veteran's service medical records and all identified and authorized post-service medical records relevant to the issue on appeal have been requested. Post- service medical records were obtained. VA obtained the veteran's partial service medical records dated from April 1986 to September 1998 and requested additional records dated from July 1977 to April 1999. However, in September 2004 VA made a formal finding on the unavailability of any additional service medical records and determined that all efforts to obtain the records had been exhausted and that further attempts to locate the records would be futile. The Board is aware that in such a situation it has a heightened duty to assist a claimant in developing his or her claim. This duty includes the search for alternate medical records, as well as a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider resolving reasonable doubt in favor of the veteran. Pruitt v. Derwinski, 2 Vet. App. 83 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board's analysis herein has been undertaken with this heightened duty in mind. VA medical examinations pertinent to the claim were obtained in December 1999 and September 2006. Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to this claim. In sum, the Board finds the duty to assist and duty to notify provisions have been fulfilled and no further action is necessary under those provisions. A claimant with active service may be granted service connection for a disease or disability either incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated by the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a) (2007). ACDUTRA is full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1). Active military, naval, or air service also includes any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred in or aggravated by the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). INACDUTRA means duty other than full-time prescribed for Reserves or the National Guard of any state. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). The disease entity for which service connection is sought must be chronic as opposed to merely acute and transitory in nature. For the showing of chronic disease in service, there is required 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. Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Where the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 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). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible. Lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The record before the Board contains service medical records and post-service medical records, which will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for a back disability. The veteran claims that in June 1995, he injured his back in service while hand digging a ditch in Egypt. The veteran filed his claim in July 1999 and reported a history of back injury in August 1995. However, the claim form does not reference any back injury in service in June 1995. The service personnel records do not show service in Egypt and the only Foreign Service documented is time served in Saudi Arabia from July 1992 to August 1992. The veteran submitted a July 1995 leave and earnings statement (LES) that reflects that the veteran was paid for a period of ADT from June 1995 to July 1995. Handwritten on the form is a statement that reads "overseas date of injury took place." However, the statement does not show that the veteran served in Egypt, or that he sustained a back injury in June 1995. In a May 2001 statement in support of claim, the veteran stated that he began to have "some lower back problems" in August 1995 for which he underwent surgery in November 1995. However, the veteran's statements in support of claim dated in October 2000, October 2002, November 2002, January 2003, October 2003 do not reference the August 1995 work-related back injury. The veteran provided statements in support of his claim dated in January 2002 and April 2002, from J. W. and Project Officer A.V.B., respectively. J.W. was working with him in Egypt at the time of the claimed back injury and stated that he remembered working with the veteran in June 1995, as well as his complaints of back and leg pain while they were working on the project. He also said that the veteran never went to sick call. However, he did not specifically identify the ditch digging incident during which the veteran claims he injured his back. The second statement was from Project Officer A.V.B. who reported that she was in charge of a project in Egypt in June 1995 and required the assistance of the veteran in digging a trench for a wash rack. She said that the trench had to be dug by hand and that the veteran was one of the individuals that dug the trench. However, she was not aware that the veteran hurt his back until she returned to her Guard unit. She explained that the veteran missed several drills and later learned that he had back surgery. However, she was not there at the time of the incident. The veteran's service medical records include a June 1993 quadrennial physical examination report that is void of findings, complaints, symptoms, or diagnosis of a back condition. In a May 1997 quadrennial physical examination report, the veteran provided a history that included a HNP (herniated nucleus pulposus) and back surgery in November 1995 for a ruptured disc; a work-related back injury for which he was receiving workers' compensation; and a history of back pain dating back to 1995 and 1996. A September 1998 clinical note shows a history of back pain, degenerative disc disease, and herniated disc. The note states that the veteran passed the "over 40 physical" in May 1997 and then re-injured his back on a civilian job and underwent a spinal fusion in November 1997. He had continued pain and limited range of motion since then. His condition was assessed as lumbar disc disease ten months status post spinal fusion with continued pain and limitations of activity. The physician determined that he was not retainable and referred him to the unit for discharge. In 1999, the State Medical Review Board determined that he was medically unfit for retention and he was honorably discharged in April 1999. Private medical records include treatment records from the veteran's neurologist Dr. L., family practice physician Dr. P., and hospital records. In August 1995, the veteran sought treatment of his back condition from his family physician, Dr. P. The August 1995 initial treatment record notes that he did a lot of lifting at his job and had some substantial lower back pain on the left side going into the hip. Upon evaluation, his condition was diagnosed as a lower back strain. An MRI examination showed transitional S-1 segment with minimal wedging of T-12, L-spine otherwise negative. In September 1995, he was admitted to the hospital with possible mild left radiculopathy and a lot of muscle spasm and strain in the left lower back and hip area. He presented with a history of back injury at work three weeks ago. His condition was assessed as primarily muscle spasms and strain which later improved and he was released the following day. In October 1996, he reported that his back was doing great. In February 1997, he had complaints of work-related lower back pain assessed as a resolving lower back strain. In August 2002, Dr. P. diagnosed his condition as chronic low back pain (with depression secondary to low back pain). A September 2002 treatment note shows that the veteran received ongoing management of chronic to moderate-severe backache and states that he had a service-connected injury when he first presented for treatment in 1995. In a September 2002 opinion, Dr. P. opined that based on the veteran's presentation and history that he provided, "the precipitating cause of his back disease dated back prior to August [1995]," as he had complaints several weeks prior to receiving treatment. Dr. P. further opined that "any disc herniation [the veteran] sustained occurred prior to August [1995] and based on his history it would suitably correlate with the heavy lifting he had to do while on active duty." In October 1995, the veteran's back condition was evaluated by neurologist Dr. L. who noted that the veteran performed a lot of heavy physical activity and bending at work that led to low back and left leg pain in August 1995. An MRI examination showed a ruptured disc at L5-S1 with compression of the left S1 nerve root. An October 1995 record states that "In August he developed low back and left leg pain while at work." In November 1995, Dr. L. performed a left L5-S1 hemilaminectomy, also referred to as a lumbar laminectomy. In September 1996, the veteran was pain free and returned to work without restrictions. A July 1997 MRI showed a previous left hemilaminectomy at L5-S1 with enhancing scar tissue about the left lateral aspect of the spinal canal encompassing the left S1 root. There were no residual, recurrent, or new disc herniations, but there was slight clumping on the nerve roots within the thecal sac at L3-4 and at L5 possibly indicative of arachnoid adhesions. In September 1997, the veteran complained of increased pain from bouncing on a forklift at work. A lumbar discogram in September 1997 revealed a degenerative disc at L5-S1. In November 1997, Dr. L. performed a lumbar laminectomy, discectomy and internal fixation with rods and pedicle screws. The hospital admission records states that the veteran originally injured himself at work in August of 1995. In September 1999, Dr. L. determined that he reached maximum medical improvement. In an October 2002 opinion, Dr. L. explained that he was asked to relate a back injury sustained by the veteran in June 1995 to a condition that eventually resulted in surgery and an inability to perform his job duties in the military. Dr. L. stated that he read the sworn statement of Ms. V-B. and that "apparently" he injured his back while laying pipe and suffered another on-the-job injury in August 1995. The neurologist opined that "[t]he second injury occurred only two months after the first injury and apparently was an aggravation of the first injury." In January 2000, the veteran was granted disability compensation from the Social Security Administration (SSA) due to his back disability. Associated records include functional capacity assessment forms dated in March 1998 and July 1998. In March 1998, he stated that he hurt himself in August 1995. In July 1998, the veteran stated that the onset of his back pain began in August 1995. Neither form includes a history of a back injury in service. The veteran underwent VA neurological and spine examinations in December 1999. It is unclear whether the claims file was reviewed. The VA neurological examination report includes a history of chronic low back pain since August 1995. The veteran stated that he had a job-related acute back strain in August 1995 while unloading trucks for the state of Georgia and the National Guard. He did not report a history of a June 1995 back injury in service while digging a ditch. He presented with complaints of chronic lumbar pain with radiculopathy to left calf. His condition was diagnosed as failed back surgery syndrome, status post multiple back surgeries for chronic lumbar strain. The history provided in the VA spine examination report states that "the injury occurred not by any specific incident" but that the veteran was with the Army National Guard working with the State Department Administrative Services, unloading trucks, inventory, and lifting heavy equipment and noticed some low back pain in August 1995. Again, the veteran did not provide a history of a June 1995 back injury in service. Upon examination, his condition was assessed as status post L5-S1 laminectomy and fusion; symptoms and signs of left L5 distribution radiating pain; and mild degenerative changes of the lumbosacral spine radiographically. In September 2006, the veteran underwent a second VA spine examination. The report notes that the claims file was not available for review. While unable to identify a specific event as the cause of his back pain when examined in 1999, the veteran provided a detailed account of the June 1995 incident; while digging a trench by hand with minimal equipment he suddenly felt pain in the lower back with associated tingling sensations on the left leg. He told the examiner that upon his return to Georgia, he could barely walk and sought care from his private physician. The history of an August 1995 work-related back injury was not provided in the September 2006 VA examination report. After diagnostic tests were performed, his condition was diagnosed as status post L5-S1 hemilaminectomy and diskectomy with L5- S1 transverse fusion and spinal stenosis at the level of L3-4 secondary to annular bulging disk with central protrusion and hypertrophied ligamentum flavum. The examiner opined that the "veteran's current back pain is at least as likely as not 50/50 probability caused by or a result of back pain or injury from June 1995." The examiner further opined that "[t]he veteran's injury correlates with the time he sought treatment when he returned from deployment." In October 2006, the RO requested that the VA examiner provide an addendum to the September 2006 report upon review of the claims file. In a November 2006 addendum, the examiner stated that upon review of the claims file, the September 2006 opinion remained unchanged. The examiner again opined that the veteran's current back disability was at least as likely as not (50/50 probability) caused by or a result of back pain or injury from June 1995. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board has considered the positive private medical opinions dated in September 2002, October 2002, as well as the VA medical opinion dated in September 2006 and the November 2006 addendum opinion thereto. In the September 2002 private medical opinion from Dr. P., the physician stated that the veteran presented for treatment of substantial low back pain in August 1995. The physician opined that "based on his presentation here and the history he gave me, that the precipitating cause of the his back disease dated prior to [August 1995] as he had the complaints several weeks before he came to my office." However, while the opinion has probative value, it was not rendered on the basis of a thorough review of the entire claims file which includes copies of the service medical records which are void of evidence of any back injury in June 1995 in service, contrary to what the veteran has alleged. In addition, the physician's opinion is unsupported by the physician's own treatment records dated from August 1995 to August 2002 which are void of any reference to the veteran's claimed back injury in service, but instead reflect treatment for an August 1995 work-related back injury that occurred from lifting on the job. The probative value of this opinion is further lessened by the fact that the opinion is unsupported by a well-reasoned rationale and appears to be based mostly on the veteran's history of a June 1995 back injury in service which is not corroborated by any objective evidence of record. The Board is not bound to accept medical opinions that are based on history supplied by the veteran, where that history is unsupported by the medical evidence. Reonal v. Brown, 5 Vet. App. 458 (1995). In the October 2002 private medical opinion, Dr. L. stated that he was asked to relate the veteran's current back disability to a June 1995 back injury in service. The physician stated that he reviewed the sworn statement by A.V.B. and that the veteran "apparently" was laying pipe when he injured his back. He noted that he had another on the job injury in August 1995 which "apparently" was an aggravation of the first injury. Here, the physician's opinion that the veteran "apparently" injured his back in service is too tenuous to warrant a grant of service connection. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Furthermore, like Dr. P.'s September 2002 opinion, this too appears to be based solely on the history provided by the veteran which is unsupported by any objective evidence which further lessens the probative value of the opinion. Reonal v. Brown, 5 Vet. App. 458 (1995). More importantly, the physician's opinion is unsupported by his own treatment records dated from October 1995 to September 1999 which in their entirety reflect treatment for the veteran's August 1995 work-related back injury. During the September 2006 VA medical examination, the veteran was able to provide a rather detailed account of the June 1995 back injury in service, but neglected to mention his work-related back injury in August 1995. The examiner related opined that the "veteran's current back pain is at least as likely as not 50/50 probability caused by or a result of back pain or injury from June 1995." The examiner further opined that "[t]he veteran's injury correlates with the time he sought treatment when he returned from deployment." Like the September 2002 and October 2002 private opinions, this opinion was also made without review of the claims file and is based mostly on the veteran's history which is unsupported by any objective evidence which therefore lessens its probative value. Reonal v. Brown, 5 Vet. App. 458 (1995). Moreover, contrary to the examiner's opinion that the veteran's treatment correlated to his return from deployment, the competent medical evidence instead suggests that his back treatment which began in August 1995 with Dr. P. and the October 1995 treatment with Dr. L. is more contemporaneous to the August 1995 work-related back injury as opposed to the alleged June 1995 back injury that he alleges occurred in service. Finally, the opinion does not contemplate the veteran's August 1995 work-related back injury which the veteran apparently failed to disclose. Finally, the Board has also reviewed the November 2006 addendum to the September 2006 VA medical examination and opinion. In the addendum, the examiner provided only that she reviewed the claims file and that her September 2006 opinion that related the veteran's back injury to service remained unchanged. Even given the opportunity to review the claims file which contains competent and thoroughly documented medical evidence of treatment related to the August 1995 work-related injury, the examiner did not address this incident in the November 2006 addendum and it is unclear to the Board whether the August 1995 incident was considered in the addendum opinion. The probative value of the November 2006 addendum is also lessened by the fact that it is unsupported by any rationale as to why it is as likely as not that the veteran's current back disability is related to his service, as opposed to the veteran's August 1995 work-related back injury. The Board notes that while the veteran is now claiming that he injured his back in June 1995 in service, initial private treatment records, hospital records, SSA functional capacity assessment forms, as well as the December 1999 VA examination reports, show a history of work-related back pain dating back to August 1995 and are void of references to the June 1995 claimed service-related back injury. The veteran's July 1999 claim notes an August 1995 back injury, and in a May 2001 statement in support of claim he stated that he began to have lower back problems in August 1995. The veteran's current claim that he injured his back in June 1995 while hand digging a ditch in Egypt does not outweigh his numerous earlier statements made more contemporaneous to the work- related injury in August 1995. The Board finds that the veteran's recent account of the June 1995 injury in service to be unpersuasive in view of the documented work-related back injury in August 1995 which he referenced on his service connection claim form in July 1999, received treatment for from doctors "P." and "L.," and upon which he based his claim for workers' compensation and SSA benefits. The Board has considered the January 2002 statement provided by J.W. that he was working with the veteran in Egypt at the time of the claimed back injury in June 1995 and his complaints of back and leg pain while they were working on the project. However, this statement is unpersuasive as it was not made contemporaneous to the incident and provides a general account of the veteran's complaints of back pain as opposed to a more detailed account of the incident during which the veteran injured his back while digging a ditch in service. The Board has also considered the April 2002 from Project Officer A.V.B. who reported that she was in charge of a project in Egypt in June 1995 and that the veteran was one of the individuals who dug the trench. However, the Board finds that this statement is less probative and persuasive than that of J.W., as she was not even aware that the veteran hurt his back until she returned to her Guard unit and was not present during the alleged incident in service. The Board recognizes the contentions of the veteran, J.W., and A.V.P. as to the diagnosis and relationship between his service and the claimed disability. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). As laypersons, however, they are not competent to provide an opinion requiring medical knowledge, such as a diagnosis, or an opinion relating to medical causation and etiology that requires a clinical examination by a medical professional. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). As a result, their assertions do not constitute competent medical evidence that the veteran suffers from a back disability that is a result of his service. Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim. The evidence does not support a finding that any current back disability was incurred in or aggravated by service. Therefore, service connection for residuals of a back injury and postoperative residuals, L5-S1 hemilaminectomy and diskectomy with L5-S1 transverse process fusion is denied. 38 U.S.C.A. § 5107(b) (West 2007); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for residuals of a back injury and postoperative residuals, L5-S1 hemilaminectomy and diskectomy with L5-S1 transverse process fusion is denied ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs