BVA9501850 DOCKET NO. 90-53 353 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for postoperative L5-S1 herniated nucleus pulposus as being proximately due to, or the result of a service-connected disorder. 2. Entitlement to an increased rating for residuals of a shell fragment wound of the right buttock, Muscle Group XVII, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Greif, Associate Counsel INTRODUCTION The veteran had active military service from January 1968 to July 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 1989 rating decision from the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). In that rating decision the RO denied entitlement to service connection for postoperative L5-S1 herniated nucleus pulposus (low back disorder) and an increased rating for residuals of a shell fragment wound of the right buttock (right buttock disorder). The case was remanded by the Board for further development in May 1991 and July 1992. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that the RO committed error in not granting an increased rating for the right buttock disorder. Specifically, the veteran asserts that his right buttock disorder has gotten progressively worse and causes an altered gait and occasional pain at the site of injury. The veteran contends that he has a low back disorder which is proximately due to, or the result of his service-connected right buttock disorder. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claims for entitlement to service connection for low back disorder and an increased rating for right buttock disorder. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's postoperative L5-S1 herniated nucleus pulposus is not proximately due to, or the result of his service-connected right buttock disorder. 3. The veteran's right buttock disorder is primarily manifested by a non tender healed one inch scar which is occasionally symptomatic. 4. The veteran's service-connected residuals of a shell fragment wound of the right buttock, results in no more than moderate impairment of the right buttock. 5. The veteran's disabilities do not present an exceptional or unusual disability picture rendering impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The veteran's low back disorder is not proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. § 3.310(a) (1993). 2. The schedular criteria for a rating in excess of 20 percent for right buttock disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, §§ 4.56, 4.73, including Code 5317 (1993). 3. The failure of the RO to consider or to document its consideration of an extraschedular rating is no more than harmless error. 38 C.F.R. § 3.321(b)(1) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented claims which are plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). I. Service Connection for Postoperative L5-S1 Herniated Nucleus Pulposus The veteran has not contended that his low back disorder was incurred in or aggravated by military service. Instead, he asserts that it resulted from symptomatology associated with his service-connected right buttock disorder. Accordingly, the Board will limit its review to whether such a casual relationship exists. Secondary service connection may be granted for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1993). The veteran is service-connected for residuals of a shell fragment wound of the right buttock, post traumatic stress disorder, tonsillectomy, and shell fragment wounds of the left elbow and both legs. January 1989 private medical reports from Mercy Hospital include a radiographic report, MRI findings, and a hospital report. An X-ray of the lumbar spine revealed slight disk space narrowing at L5-S1 and some sclerosis at the facet joint. The examiner's impression was minor degenerative changes. An MRI report showed a very large disc herniation L5-S1, particularly on the left. The hospital report revealed that the veteran underwent a micro lumbar diskectomy at left L5-S1. The final diagnosis was improved lumbar herniated disk at L5-S1. In a May 1991 Board remand the RO was requested to accord the veteran a VA orthopedic examination. On a June 1991 VA orthopedic examination, the veteran complained of left lower back pain. He told the examiner that his right buttock disorder caused him to lean to the left which resulted in his herniated nucleus pulposus. The examiner noted that it was possible that the actual shell blast concussed his lumbar spine, but that it was equally possible that years of letter carrying had taken its toll. Upon physical examination of the low back the examiner reported that the range of motion was restricted to half normal. Forward flexion was 60 degrees, extension was 10 degrees, lateral bends to the right and left were 20 degrees, and dorsal lumbar rotation was 25 degrees. He noted that the veteran had paravertebral lumbar muscle tenderness, but did not complain of significant pain. The examiner reported that straight leg raising on the right was 70 degrees and on the left 60 degrees with a negative Lasegue bilaterally. He noted that the veteran's deep tendon reflexes were symmetrical and brisk. The examiner reported that the veteran had decreased sensation to light touch and reduced discrimination over the S1 distribution. X-rays revealed four normally segmented lumbar vertebra, but L5-S1 narrowed approximately 50 percent. The examiner's final diagnosis included herniated nucleus pulposus, left L5-S1 disc, with residual S1 sensory radiculopathy. The case was again remanded by the Board in July 1992 for further development. The Board requested that the claims folder be referred back to the physician who conducted the June 1991 VA orthopedic examination so that he could express an opinion on the etiology of the low back disorder and whether it was in any way related to the service-connected right buttock disorder. On a September 1992 VA orthopedic opinion, the physician reported that the veteran complained of back pain as early as 1982 and that an X-ray report of the lumbar spine at that time was negative. The examiner noted that in 1985 the veteran complained of chronic back ache and an orthopedic consultation was obtained which was completely normal. The examiner reported that the etiology of lumbar disk degeneration was multifactorial, including aging of the nucleus with desiccation and loss of hydrophilic properties of the nuclear protein. He noted that those things can occur in response to cyclic stresses over the years and is seen in a proportion of the population with or without a history of prior trauma. The examiner reported that although in his June 1991 report he commented that the actual shell blast may have concussed the lumbar spine, he was unable on a purely objective basis to make any connection between that incident and the herniated nucleus pulposus many years later. He concluded by noting that there was no objective evidence that the veteran's current back disability was in any way related to the service-connected shell fragment wound involving the right buttock. In determining whether service connection is warranted for disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In weighing the evidence of record in this case, the Board carefully considered the findings of the VA examiner who addressed the question of whether the veteran had a low back disorder secondary to his service-connected right buttock disorder. In the first examination the examiner noted that it was possible that the actual shell blast had concussed the lumbar spine and it was equally possible that the years of letter carrying had taken their toll. In order to provide a more definitive opinion for the record, the case was returned on remand to the examining physician for further assessment. Upon further review the VA examiner concluded that there was no objective evidence that the veteran's current back disability was in any way related to the service-connected shell fragment wound involving the right buttock. Although the examiner was provided the opportunity to conclude that it was as likely as not that the shell fragment wound caused a back disorder, he ultimately did not establish a medical link between a low back disorder and the veteran's service-connected right buttock disorder. The United States Court of Veterans Appeals (Court) has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to that effect is required. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Therefore, lay evidence, such as the veteran's opinion that his low back disorder is related to his service-connected right buttock disorder is not competent to support a finding on a medical question requiring special experience or special knowledge. Although the veteran contended that private medical records from Mercy Hospital were not on file, the Board notes that such records are on file, and were considered by the RO in their decision. The Board acknowledges that the veteran has a low back disorder; however, what is significant is that the low back disorder has not been attributed to the service-connected right buttock disorder. The Board is sympathetic to the veteran's plight but is bound by law to weigh the available evidence of record. It is noted that there is no physician's opinion of record which establishes that the veteran's low back disorder is proximately due to or the result of a service-connected disease or injury. Without such evidence there is no medical basis to assume that the veteran's postoperative L5-S1 herniated nucleus pulposus is proximately due to or the result of the his service-connected right buttock disorder. The preponderance of the evidence convinces the Board that service connection for a low back disorder is not warranted. II. Increased Rating for Right Buttock Disorder Service medical records indicate that, on August 21, 1968, the veteran received shrapnel wounds to the right buttock due to an enemy booby trap. The wound was debrided that day and sutured on August 24, 1968. In September 1968 he developed a hematoma in the wound of the right buttock and was hospitalized. The wound was reopened and allowed to heal by second intention. Following treatment he returned to duty on September 16, 1968. The separation examination report listed, among other things, a 1/2 inch scar on the right buttocks. Following service the veteran was accorded a VA examination in February 1970. The veteran complained of right buttock pain when sitting and when on his feet too long. The examiner reported that the veteran had a healed one inch scar on the right buttock. He noted that the scar was not tender to pressure nor adherent to underlying structures. X-rays revealed retained metallic foreign bodies in the legs and right buttocks. The final diagnosis included residuals of shell fragment wound of the right buttock, with retained metallic foreign body. Based upon the service medical record findings and VA examination report, the RO, in a June 1970 rating decision granted service connection for, among other things, residual gunshot wound of the right buttock, and assigned a 20 percent rating under Diagnostic Code 5217 of the Schedule for Rating Disabilities, 38 C.F.R. Part 4, § 4.73 (1993). The 20 percent evaluation was thereafter continued until 1989, at which time the veteran sought an increased rating for the right buttock disorder. In support of his claim, the veteran submitted a 1983 VA outpatient report. He complained of chronic buttock pain and was seeking a refill of prescription medicine. During a June 1991 VA examination the veteran complained of chronic pain that made him sit improperly. The examiner reported that the veteran had an irregular 4 by 1 cm. right buttock wound that could be expected to be quite uncomfortable during sitting. Palpation of the right buttock elicited some tenderness. X-rays revealed the presence of a 6 mm. metallic foreign body in the right gluteal region. The final diagnosis included gunshot wound of the right buttock with no measurable change since the previous evaluation. On the September 1992 VA medical opinion, the physician reported that there was no inflammation, swelling, depression, vascular supply, or ulceration of the right buttock scar. He noted that the veteran's right buttock scar was adequately described as early as 1970. At that time a VA examiner reported a healed one inch scar on the right buttock, which was not tender nor adherent and was well healed. The current VA examiner reported that the findings have not changed over the years. In a May 1994 rating decision, the RO, among other things, denied an increased rating for right buttock disorder, and continued the 20 percent disability rating. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The current 20 percent rating under Diagnostic Code 5317 contemplates moderate muscle injury of the pelvic girdle group. The next higher rating, 40 percent, requires moderately severe muscle injury of the pelvic girdle group. The moderate muscle injury suggests definite weakness or fatigue on comparative testing and service department hospitalization for treatment of the wound. Moderately severe injury suggests marked or moderately severe loss of strength and endurance on testing and service department hospitalization for a prolonged period for treatment of a wound of severe grade. 38 C.F.R. § 4.56(b) and (c) (1993). In determining whether a higher rating is warranted for disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The Board acknowledges that the veteran experiences some pain associated with the service-connected right buttock disorder. In weighing the evidence of record in this case, the Board carefully considered the service medical records which reflect a relatively brief period of treatment and VA examination reports, as well as the evidence of record, in light of the veteran's contentions. The findings include a well healed somewhat tender 4 by 1 cm. scar on the right buttock, a retained foreign metallic fragment in the right gluteal region, and no evidence of muscle atrophy of either lower extremity. The lack of muscle atrophy and associated weakness and fatigability is significant because it shows that the injury was not destructive of the musculature in that area. This would need to be shown to consider a higher evaluation. The Board notes that over the years the veteran's right buttock disorder has not gotten progressively worse nor has he received any treatment for the right buttock disorder. The chief complaint is pain especially when sitting and the retained foreign fragment. This is contemplated under the current rating. The manifestations of the right buttock disorder do not equate to a moderately severe injury to the pelvic girdle group. The veteran has requested that he be awarded a separate compensable evaluation for a superficial, tender and painful scar under Diagnostic Code 7804 (10 percent). A review of the examination reports shows that the scar has not been shown to be tender and painful on objective demonstration. The production of symptoms by objective demonstration is required by the rating criteria. It is true that the examiner felt that the scarring could cause discomfort when sitting. However, this is one of the chief reasons for the assignment of the current rating for muscle injury. The regulatory provisions call for moderate loss of deep fascia or muscle substance or impairment of muscle tonus and definite weakaness or fatigue to support a rating for moderate muscle injury. 38 C.F.R. § 4.56(b) (1993). These characteristics of muscle injury have not been suggested on the examination reports. To provide a rating under Diagnostic Code 7804 would amount to pyramiding since the same symptom would be contemplated in both ratings. As it is, the current regulatory scheme provides a higher rating for the veteran. Accordingly, the Board concludes that the service medical records and VA examination reports when taken as a whole do not reveal the symptomatology which would warrant a 40 percent rating. The regular schedular standards are shown to be adequate to compensate the veteran's disability. This is not an exceptional case where the regular schedular standards are shown to be inadequate. It does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1993). ORDER 1. Entitlement to service connection for postoperative L5-S1 herniated nucleus pulposus as being proximately due to, or the result of a service-connected disorder is denied. 2. Entitlement to an increased rating for residuals of a shell fragment wound of the right buttock, Muscle Group XVII is denied. JAN DONSBACH Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.