BVA9500332 DOCKET NO. 93-06 371 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to an increased evaluation for lumbosacral strain, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his wife. ATTORNEY FOR THE BOARD Bernard T. DoMinh, Associate Counsel INTRODUCTION The veteran served on active duty from March 1966 to September 1970. This matter comes to the Board of Veterans' Appeals (Board) from a March 1972 rating decision by the Albuquerque, New Mexico, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim for service connection for a cervical spine disability. Also on appeal is a January 1992 decision of the Reno, Nevada, RO of the VA, which confirmed the denial of service connection for a cervical spine disorder, and denied the veteran's claim for an increased evaluation for service-connected lumbosacral strain, currently rated as 10 percent disabling. A review of the veteran's claims folder shows that the issue of service connection for a cervical spine disorder was introduced during a February 1972 hearing that was conducted to address the issue of entitlement to an increased evaluation for his service- connected lumbosacral strain. In a March 1972 Albuquerque RO decision, both claims were denied. The issues regarding both claims were addressed in a March 1972 statement of the case and the veteran's substantive appeal, received in June 1972. In September 1972, the Albuquerque RO granted the veteran a 10 percent evaluation for lumbosacral strain, but made no mention of his claim for service connection for a cervical spine disability in its decision, and did not certify his appeal of its March 1972 decision to the Board for review. In a July 1992 supplemental statement of the case, the RO in Reno noted that, given the procedural history, the March 1972 decision was not final. Therefore, the March 1972 RO decision, denying service connection for a cervical spine disorder, is properly before the Board, and the issue has been given de novo review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he had sustained a neck injury during service which caused a chronic cervical spine disability. He further contends that his service-connected chronic lumbosacral spine disorder has worsened to a degree that warrants an evaluation in excess of his current 10 percent disability rating. 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 evidence of the case supports the claim for service connection for a cervical spine disorder and the preponderance of the evidence is against the claim for an increased rating for a lumbosacral spine disorder. FINDINGS OF FACT 1. Chronic cervical spine strain began during service, as the result of a traumatic injury sustained during combat. 2. The veteran's chronic lumbosacral spine disorder is manifested by characteristic pain on motion and slight limitation of motion. CONCLUSIONS OF LAW 1. Chronic cervical spine strain was incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5107(b) (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1993). 2. The criteria for a rating in excess of 10 percent for a chronic lumbosacral spine disorder have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Codes 5292, 5295 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran's DD Forms 214 show that he served in the Army from March 1966 to September 1970. This includes military service as an infantry officer in Vietnam, and his military decorations include the Combat Infantryman Badge and the Bronze Star. The veteran's service medical records show that his neck and spine were evaluated as clinically normal during a September 1965 enlistment examination and during examinations conducted in February 1967 and November 1967. The veteran reported no history of recurrent back pain in a November 1967 medical history questionnaire. A service medical record dated in September 1970 shows a history that in 1968 the veteran was hospitalized for 4 days during his tour of duty in Vietnam for a back injury that was sustained after an enemy rocket explosion caused the veteran to hit his back against a machine gun mount on a river boat. That incident reportedly caused a sudden onset of pain in his thoracolumbar region without radiation. The veteran reported having pain when lifting heavy objects and while sleeping in certain positions. Physical examination showed that he had full range of motion without local tenderness. The impression was thoracolumbar strain with possible degenerative disc disease. His September 1970 separation examination showed he had a clinically normal spine and neck. In September 1970, the veteran filed a claim with VA for service connection for residuals of a back injury which he said occurred in 1968 in Vietnam when there was an explosion on a boat and he was thrown against a gun turret. VA outpatient treatment records show that in late September 1970 the veteran sought treatment for back symptoms which he said started with a 1968 injury in which he was blown against a gun turret on a boat. X-rays of the entire spine were ordered. A VA X-ray report, dated in October 1970, notes an impression of a radiographically normal cervical spine with slight straightening of the normal curvature of the cervical spine, consistent with muscle spasm. X-ray examination of the dorsal and lumbar spine showed no abnormality of the dorsal and lumbar vertebral bodies, normal sacroiliac joints, maintained intervertebral spaces, intact pedicles, multiple Schmorl's nodes present in the lower dorsal region, and very mild scoliosis to the left in the lower lumbar region. An outpatient record from this time shows an impression of residuals of a low back injury, and physical therapy was given in subsequent months. During a November 1970 VA examination, the veteran reported having neck and back pain. Physical examination was essentially normal and noted that his neck was supple. The diagnosis was mild lumbosacral strain. In February 1971 an RO granted the veteran service connection for mild lumbosacral strain and assigned a 10 percent disability rating. X-rays taken of the veteran's lumbosacral spine during a November 1971 VA examination were normal except for slight scoliosis with convexity to the left. Physical examination was essentially normal. The diagnosis was healed lumbosacral strain. In a November 1971 decision, the RO reduced the veteran's disability evaluation to a noncompensable rating. The veteran subsequently appealed this decision, and in a September 1972 decision, the RO reinstated the 10 percent disability rating for chronic lumbosacral strain. This rating has remained in effect ever since. At a February 1972 hearing at the RO, the veteran, in addition to discussing his low back conditions, requested service connection for arthritis of the cervical spine. He testified that he first noted having cervical pain in 1968 following an injury from an enemy rocket blast, in which he was blown on his back against a boat-mounted gun turret, sustaining back injuries and a whiplash injury to his neck. He claimed that he had constant back and neck pain ever since this incident. He stated that he was receiving VA medical treatment for his back condition. At an August 1972 VA examination, the veteran gave a history of injuring both his lower and upper back in the 1968 service incident. Lumbar spine X-rays were normal. Physical examination resulted in an impression of chronic back strain due to unequal leg lengths, and subsequent pelvic tilt with scoliosis. In an April 1974 statement, the veteran said that he injured both his back and neck in the service episode in 1968 and was treated for both problems at that time. During a June 1974 VA examination, the veteran reported that in 1968, he was in a river patrol boat in Vietnam when an enemy rocket exploded nearby. He said he sustained back and neck injuries when the force of the explosion caused him to strike his back against a gun turret and his neck against the helmeted head of the soldier occupying the turret, causing a severe whiplash. He reported having back and neck pain frequently since then, with stiffness of the neck, and limitation of motion of his back and neck. X-rays of the veteran's cervical spine showed a loss of the normal cervical lordosis. The alignment, vertebral bodies and intervertebral disc spaces of the cervical spine were normal, and the neural foramina were open. Lumbar spine X-rays appeared normal. Physical examination showed moderate muscle spasm in the area of his lumbar spine, with partially decreased lumbar curvature. Severe bilateral muscle spasm was noted in his cervical area, left greater than right. There was coarse crepitation on rotation of the head in his lower cervical area. The diagnostic impressions were mild lumbosacral strain and moderate cervical strain. A November 1984 VA medical record shows that the veteran was treated for a complaint of low back pain. His history of low back pain was noted. Physical examination was negative for parathesias and loss of strength and he reported no history of recent trauma. The diagnosis was mild low back pain. A June 1991 VA outpatient treatment record shows that the veteran was diagnosed with degenerative joint disease of the lumbosacral spine, and X-rays were ordered. A July 1991 VA outpatient treatment record shows that the veteran was treated for low back pain. In August 1991, the veteran filed a claim for an increased rating for his service-connected low back disorder. He reported having had constant low back pain which interfered with his sleep and became worse on prolonged standing and walking with occasional pain radiating into his lower extremities. November 1991 VA X-rays of the veteran's lumbar spine showed the presence of mild osteophyte formation, intact lumbar vertebral bodies and disc spaces, normal sacroiliac joints and no significant facet arthrosis noted. The impression was no significant abnormality of the lumbar spine. In December 1991, James E. McIntire, M.D., performed an orthopedic examination for the VA. The examination report shows that the veteran gave a history of injuring both his back and neck in a 1968 service incident in which the boat in front of his was blown up, his boat rocked violently, and he struck his back and neck. He complained of having pain in his midline lumbar spine, with problems performing various movements and during certain activities. He reported experiencing tenderness in his posterior neck with constant soreness. Range of motion testing of his lumbar spine showed that the veteran had forward flexion to 80 degrees, backward extension to 30 degrees, abduction to 35 degrees, bilaterally, and rotation to 70 degrees, bilaterally. Physical examination showed tenderness in his dorsolumbar spine. He had normal motor power, symmetrical calf measurements of 17 inches, and a normal sensory examination. Straight leg raising in the supine position was to 80 degrees with tightness of his thigh and hamstrings. In the sitting position it was negative at 75 degrees. No true sciatica was evident. X-rays showed his lumbar spine had a mild list to the right, with very early arthritis at L2-L3 and mild narrowing of the L3-L4 space. No pars deficit was noted. Some restriction of cervical spine motion was noted. The diagnoses were chronic lumbar strain, mild preexisting or associated arthritis, and cervical spine strain. Dr. McIntire noted that both the veteran's back and neck injury might actually be related to his service-connected condition. It was commented that the 10 percent rating for the low back condition seemed about right. An October 1992 VA examination report, related to the veteran's claim for service connection for a psychiatric disorder, shows a history of employment problems and current unemployment unrelated to a back condition. During a December 1992 RO hearing, the veteran testified that he experienced constant low back pain and was receiving outpatient treatment for it. He described the pain as chronic and increasing in intensity as each year went by. His wife testified that when she tried to massage his back, he noted that his back muscles felt very tight The veteran stated that he had constant neck pain, but that his neck symptoms were milder than his back, and occasionally produced a stiff neck and limitation of motion. He reported that he was unemployed. II. Analysis The veteran's claims are both well-grounded within the meaning of 38 U.S.C.A. § 5107(a), in that they are not inherently implausible. Relevant evidence has been properly developed, and no further assistance to the veteran is required to comply with the duty to assist. Id. (a). Entitlement to service connection for a cervical spine disorder. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The evidence in this case is sufficient to show that the veteran, a decorated combat veteran, suffered traumatic injuries to his neck while engaging the enemy in combat, resulting in chronic disability. A September 1970 service medical record makes reference to a back injury in combat in 1968, and an impression of thoracolumbar strain was made. The September 1970 service separation examination did not find a cervical spine disorder. However, it is significant that, beginning shortly after service, the veteran alleged that the 1968 service episode caused both cervical spine and low back problems. His testimony and written statements have been essentially consistent in their descriptions of the explosion incident which occurred during service, which he claims is the cause of his cervical spine disorder. A VA X-ray report dated in October 1970 shows that, within one month after leaving service, he had straightening of the normal curvature of his cervical spine, consistent with muscle spasm. An examination dated in June 1974 shows a diagnosis of cervical spine strain. At the December 1991 examination, the examining physician diagnosed cervical strain and expressed his opinion that it could be related to the explosion incident during service. Admittedly, continuity of symptoms since service might be better documented, yet the Board finds that the evidence is in relative equipoise regarding the issue of whether the cervical strain began during service as a result of combat injury. Giving the benefit of the doubt on the veteran, the Board finds cervical spine strain was incurred in service, warranting service connection. 38 U.S.C.A. § 5107(b). (b). Entitlement to an increased evaluation for a service- connected lumbosacral spine disorder, currently rated as 10 percent disabling. 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; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Slight limitation of motion of the lumbar segment of the spine warrants a10 percent evaluation. A 20 percent evaluation requires moderate limitation of motion. 38 C.F.R. Part 4, Code 5292. A 10 percent evaluation is warranted for lumbosacral strain where there is characteristic pain on motion. A 20 percent evaluation requires muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. 38 C.F.R. Part 4, Code 5295. Range of motion testing performed during the December 1991 medical examination showed that the veteran's lumbar spine had forward flexion to 80 degrees, backward extension to 30 degrees, abduction to 35 degrees, bilaterally, and rotation to 70 degrees, bilaterally. Physical examination showed tenderness in his dorsolumbar spine with no true sciatica. Chronic lumbar strain and mild arthritis were noted, and the examiner opined that the current 10 percent rating seemed proper. Although the examiner's statement on the degree of disability is not controlling, the medical evidence indicates that the veteran has only mild lumbosacral strain symptoms consisting of slight limitation of motion, and characteristic pain on motion. This is properly rated 10 percent. There is no muscle spasm on forward bending and no unilateral loss of lateral spine motion in a standing position, as required for a higher rating. The veteran's testimony has been noted, but the Board finds the objective medical evidence to be more probative as to the degree of disability. Furthermore, the record does not show an exceptional or unusual disability picture, with such factors as marked interference with employment or frequent periods of hospitalization, as would render impractical the application of the regular schedular rating standards; an increased rating on an extraschedular basis is not warranted. 38 C.F.R. § 3.321(b). As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and an increased rating must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski; 1 Vet.App. 49 (1990). ORDER Service connection for cervical spine strain is granted. An increased rating for a service-connected lumbosacral spine disorder is denied. L.W. TOBIN 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.