INTERVERTEBRAL DISC SYNDROME

Summary

The veteran, who served from June 1969 to June 1989, appeals the denial of service connection for a low back disability. The veteran claimed the low back condition was secondary to his service-connected left knee disability, citing 38 C.F.R. § 3.310. To establish secondary service connection, the veteran must demonstrate a current disability, in-service incurrence or aggravation, and a nexus between the in-service event and the current condition. The Board reviewed a VA examination from October 2017, which found no current diagnosis of a low back disability and normal range of motion, although pain was noted without functional impairment. Private treatment records from April 2019 also indicated a history of low back pain but no diagnosed disability. The Board noted that pain alone can qualify as a disability if it impairs earning capacity, but found this was not the case here due to the absence of functional impairment. Consequently, the Board denied service connection for the low back disability, as the criteria for a current disability were not met.

Rationale

No current diagnosis of low back disability; No functional impairment of earning capacity due to pain; Pain alone does not constitute disability without functional impairment

Full Decision Text

Citation Nr: 19156765
Decision Date: 07/23/19	Archive Date: 07/22/19

DOCKET NO. 18-53 288
DATE:	July 23, 2019

ORDER

Entitlement to service connection for a low back disability is denied.

FINDING OF FACT

The evidence does not show a diagnosis of a low back disability during the appeal, or pain in the back that results in functional impairment of earning capacity.

CONCLUSION OF LAW

The criteria for entitlement to service connection for a low back disability have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1137; 38 C.F.R. §§ 3.303, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1969 to June 1989.

Entitlement to service connection for a low back disability

The Veteran has asserted that he has a current low back disability that is related to his service-connected left knee disability.  See 38 C.F.R. § 3.310.

In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110; 38 C.F.R. § 3.303.  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  See 38 C.F.R. § 3.303(d).

To establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may be established on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc).  

Turning first to the threshold determination of whether the Veteran has a current disability, the Veteran had an examination for his claimed lumbar spine condition in October 2017.  The examiner noted that the Veteran did not have a diagnosis of a current low back disability.  Additionally, the examiner noted that the Veteran exhibited normal range of motion for the Veteran’s low back.  The examiner did note that the Veteran experienced pain on examination, but that it did not result in or cause functional loss.  The examiner opined that it was less likely than not that the Veteran’s low back pain was due to or the result of his total left knee replacement.  The examiner noted that there was no evidence of record indicating a low back disability and that the Veteran exhibited full range of motion during his physical exam. 

Treatment records during the appeal are not in conflict with the VA examination findings.  Private treatment records from April 2019 do indicate a past medical history of low back pain, however a low back disability was not diagnosed. 

In some instances, pain alone can qualify as a disability for VA purposes; however, to do so, it must amount to a functional impairment of earning capacity.  Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018).  In this case, without any limitation of motion or other functional impairment of record, the Veteran’s back pain cannot be considered a disability for VA compensation purposes.  Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C. § 1110.  In the absence of proof of a current diagnosis of a disability, service connection for that disability cannot be established, and the Veteran’s claim for a low back disability, to include as due to his service-connected left knee disability, must be denied.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

 

BETHANY L. BUCK

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	David M. Sebstead, Associate Counsel


 purposes.  Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C. § 1110.  In the absence of proof of a current diagnosis of a disability, service connection for that disability cannot be established, and the Veteran’s claim for a low back disability, to include as due to his service-connected left knee disability, must be denied.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

 

BETHANY L. BUCK

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	David M. Sebstead, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.