BVA9503553 DOCKET NO. 91- 23 023 ) 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 a low back disorder, claimed as secondary to service-connected residuals of fractures of the cervical spine and right mandible. 2. Entitlement to service connection for a right hand disorder, claimed as secondary to service-connected residuals of fractures of the cervical spine and right mandible. 3. Entitlement to service connection for a left hand disorder, claimed as secondary to service-connected residuals of fractures of the cervical spine and right mandible. 4. Entitlement to an increased evaluation for residuals of a fracture of the fifth cervical vertebra with headaches, currently evaluated as 20 percent disabling. 5. Entitlement to an increased evaluation for the residuals of a fracture of the right mandible, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from October 1942 to September 1945. This appeal arises from a July 1989 rating decision of the Los Angeles, California, Department of Veterans Affairs (VA), Regional Office (RO), which denied entitlement to the benefits sought. This decision was confirmed and continued by rating actions issued in November 1989, and in January and May 1990. The veteran and his wife testified at a personal hearing in November 1990; the hearing officer issued a decision in February 1991 which continued the denials of his claims. This case was remanded by the Board of Veterans Appeals (Board) in February 1992 for further development. Following this remand, a decision was issued in April 1994 which confirmed and continued the denials of his requested benefits. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that his low back and hand disabilities should be service-connected as secondary to his cervical fracture residuals. He also asserts that his service- connected disabilities are more disabling than the current evaluations would suggest. He states that he suffers from a stiff neck and limitation of motion. He also states that his jaw occasionally locks on him and that he sometimes has difficulties eating because he cannot open his mouth completely. Therefore, he believes that the requested benefits should be granted. 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 appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claims for service connection for low back and hand disabilities are well grounded; the preponderance of the evidence is against his claims for increased evaluations for his service-connected cervical spine and right mandible fracture residuals. FINDINGS OF FACT 1. The veteran has submitted no evidence that would tend to establish a connection between his low back disorder and his service-connected disabilities. 2. The veteran has submitted no evidence that would tend to establish a connection between his right hand disorder and his service-connected disabilities. 3. The veteran has submitted no evidence that would tend to establish a connection between his left hand disorder and his service-connected disabilities. 4. The veteran's cervical spine displays no more than moderate limitation of motion, and is manifested by 40 degrees of flexion and 30 degrees of extension. 5. The veteran's cervical fracture residuals include a demonstrable deformity of a cervical vertebral body. 6. The veteran's temporomandibular articulation shows greater than 20 mm of inter-incisal range. CONCLUSIONS OF LAW 1. The appellant has not submitted evidence of a well grounded claim for entitlement to service connection for low back and bilateral hand disorders. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.310(a) (1993). 2. The criteria for a 30 percent disability evaluation for a cervical spine disability have not been met; the criteria for an additional 10 percent disability evaluation for a deformed vertebral body have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 3.321, Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, Codes 5285, 5290 (1993). 3. The criteria for a 30 percent disability for fracture residuals of the right mandible have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 3.321, Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, Code 9905 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service connection for low back and bilateral hand disabilities. The threshold question to be answered in this case is whether the appellant has presented evidence of well grounded claims; that is, ones which are plausible. If he has not presented well grounded claims, his appeals must fail and there is no duty to assist him further in the development of his claims because such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). While claims need not be conclusive, they must be accompanied by supporting evidence sufficient to justify a belief by a fair and impartial individual that the claims are plausible. As will be explained below, it is found that his claims for secondary service connection are not well grounded. In the instant case, it is noted that the veteran has requested service connection for his low back and hand disorders as secondary to his cervical and right mandible fracture residuals. According to the applicable criteria, service connection may be granted for disabilities which are proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1993). A review of the veteran's service medical records indicates that the veteran suffered a fracture of the C5 vertebra, as well as the right mandible, in a train wreck in 1944. However, there was no mention of involvement of the low back or either hand. Following his discharge from service, he was examined by VA in April 1947. This examination evaluated his cervical spine and his right mandible fracture residuals. Again, no reference was made to his low back or his hands. The record contains no complaints referring to his low back or hands until 1988. VA outpatient treatment records developed between January 1988 and September 1989, noted his complaints that he had pain in his low back and both hands. The assessment was of degenerative joint disease (DJD) and degenerative disc disease (DDD) in the cervical and lumbar spines. Tenderness in both the cervical and lumbar spines was present. In September 1989, complaints of pain in both hands were made. There was no numbness. However, degenerative changes were noted. The veteran was hospitalized by VA in December 1989 and March 1990. In 1989, he was admitted after complaining of the sudden onset of low back pain six months before. This pain radiated into the right leg. There was no reported history of trauma. His condition improved with bed rest, but there was persistent low back and right leg pain. An x-ray revealed DJD in the lumbar spine and an EMG revealed the presence of L4 radiculopathy on the right. Surgery was to be performed for the noted spinal stenosis; however, difficulties intubating the veteran led to the postponement of the operation. In March 1990, he was re- hospitalized and underwent an L4-5 laminectomy and decompression with fusion of the L4-5 level for spinal stenosis. In November 1990, the veteran and his wife testified at a personal hearing. He stated that he had been told by doctors at VA that his low back and right leg pain and numbness, as well as the pain and numbness in his arms and hands, were the result of his past neck fracture. He commented that his back and leg problems had existed for many years, while the hand difficulties had developed about ten years before. A VA examination was conducted between November to December 1990. The low back findings indicated that there was no paravertebral spasticity or tightness in the muscles. A November CT scan of the low back revealed minimal disc bulging at the L4-5 and L3-4 levels with hypertrophic degenerative changes in the facet joints. An x-ray showed narrowing at L4-5. VA outpatient treatment records developed between January 1990 and January 1992 revealed his continuing treatment for complaints of low back and right leg pain and numbness. The assessment continued to be spinal stenosis, with narrowing of the joint spaces evident on x- ray. A VA neurological examination was conducted in June 1992. This noted mild right foot drop with residual S1 sensory changes in the right leg. Spinal stenosis was diagnosed. EMG studies revealed the presence of denervation due to this stenosis. The neurological diagnosis was status post lumbar stenosis surgery in 1990, with residual mild right foot drop and numbness in the right L5 dermatome which might not change. The examination also revealed that there was no radicular pain in the arms. There were adequate reflexes in the upper extremities and no muscle weakness was present. There appeared to be no sensory changes in the upper extremities. An x-ray showed compression at the C5 level with degenerative changes at the C5, 6, and 7 levels. An orthopedic examination revealed that there was normal range of motion in both hands. The diagnosis was compression fracture C5 in 1944 with residual degenerative changes C5, 6, and 7; residual pain and limitation of the cervical region was noted with no evidence of cord or root compression. The veteran was re-examined between November and December 1993. His complaints were of chronic intermittent neck pain with radiculopathic features. The objective examination revealed that there was no numbness in the median distribution, and a sensory examination was intact. Sensation to touch was also intact. Both upper extremities showed symmetrical motor strength, with give way features. The Tinel's sign was negative bilaterally. The examination found that the clinical features were not suggestive of either radiculopathy in the upper extremities or carpal tunnel (or other peripheral or entrapment neuropathy). An examination of his low back was also completed. A neurological examination revealed that the left patella reflex was absent, although the Achilles reflexes were normal. The diagnosis was status post radiculopathy surgery with residual absent patella reflexes and sensory anterior calf and thigh; possible L4-5 residual. The orthopedic examination noted the presence of a 15 cm well healed scar on the back. He could flex to 30 degrees, with no extension. Lateral bending was to 20 degrees bilaterally. Motor strength was 5/5 bilaterally, and sensation was intact to pinprick and light touch, except for the lateral aspect of the right lower extremity. Straight leg raises caused mild low back pain at 45 degrees flexion without radiating pain. The Romberg's sign was negative and the right Achilles reflex was absent. The impression was of DDD L3-4, 4-5, and L5- S1 with status post laminectomy and fusion at the L4-5 level. He was symptomatic with pain and decreased range of motion of the low back from the DDD; some decreased sensation in the left lower extremity was also noted. Although it was noted to be possible that the low back pathology was secondary to the prior injury to the cervical spine, such a connection was found to be unlikely due to the fact that the veteran had had no complaints referable to the low back at the time of original injury to the neck, and because he did not develop low back symptoms for about 40 years following that injury. Initially, it is noted that the law pertaining to secondary service connection clearly requires that there exist a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1993). While the evidence does show that the veteran suffers from a low back disability and DJD in his hands, there is no objective evidence of record to relate these disabilities to his service-connected cervical spine fracture. In fact, the VA examination conducted between November and December 1993 ruled out any such relationship. The examination of his hands found that the difficulties in the hands did not stem from any type of radiculopathy from the neck or other entrapment neuropathy. The examination of back concluded that it was unlikely that his low back disorder was related to his neck injury. The United States Court of Veteran Appeals (Court) has stated that, in order for a claim for service connection to be well grounded, there must be competent medical evidence of the existence or diagnosis of a current disorder than can be linked to an event occurring in service. Grivois v. Brown, 6 Vet.App. 136 (1994); Grottveit v. Brown, 5 Vet.App. 91 (1993); and Rabideau v. Derwinski, 2 Vet.App. 141 (1992). In the instant case, as noted above, there is no competent medical evidence that the low back and hand disorders are related to his service- connected cervical fracture residuals, as would be required to establish a well grounded claim for secondary service connection. Therefore, as the appellant's claims for service connection for these disorders are not well grounded, they must be dismissed. To do otherwise and handle the case on the merits would be inappropriate because it would require that appellant in the future overcome the inertia of an earlier, adversely adjudicated claim. See Grottveit, at 93. II. Increased evaluations for cervical spine and right mandible fracture residuals. The veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented claims which are plausible. We are also satisfied that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which should be obtained. Therefore, no further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1993). VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 states that, in cases of functional impairment, evaluations are to based upon lack of usefulness, and medical examiners must furnish, in addition to etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of the disability upon a person's ordinary activity. This evaluation includes functional disability due to pain under the provisions of 38 C.F.R. § 4.40. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. A. Entitlement to an increased evaluation for cervical spine fracture residuals. According to the applicable criteria, residuals of a fracture of a vertebra warrant a 60 percent evaluation if there is no spinal cord involvement, but abnormal mobility is present which requires a neck brace (jury mast). In other cases, the residuals should be rated on the basis of resulting definite limitation of motion or muscle spasm, adding 10 percent for demonstrable deformity of a vertebral body. When evaluating the residuals on the basis of ankylosis and/or limited motion, evaluations should not be assigned for more than one spinal segment by reason of the involvement of only the first or last vertebra of an adjacent segment. 38 C.F.R. Part 4, Code 5285 (1993). Moderate limitation of motion of the cervical segment of the spine warrants a 20 percent evaluation. A 30 percent evaluation requires severe limitation of motion. 38 C.F.R. Part 4, Code 5290 (1993). A review of the service medical records reveals that the veteran suffered a fracture of the fifth cervical vertebra in a train wreck in 1944. This was manifested by headaches, aching in the neck and weakness. During a VA examination performed in April 1947, he complained of frequent headaches. An x-ray revealed an old healed fracture of the C5 level, deformity of the body and no pathology of the facets. The physical examination showed no deformity of the neck, full range of motion with symptoms only upon full extension, and no muscle spasm. There were no neurological symptoms. The diagnosis was compression fracture of the C5 level with residuals, to include deformity of the C5 body. VA outpatient treatment records developed between January 1988 and September 1989, revealed his complaints in January 1988 that he was suffering from pain in his neck. DJD and DDD in the cervical spine was diagnosed. There was tenderness in the neck, with no definite limitation of motion demonstrated. In August 1989 he reported having a stiff neck. An x-ray taken in September 1989 revealed an old fracture. He displayed some tenderness in the cervical spine, and the neck was noted to be stiff. In November 1990, the veteran and his wife testified at a personal hearing, wherein he complained of experiencing headaches and occasional neck pain. He reported having loss of full motion in the neck. His wife stated that he had been advised to have surgery on his neck. She noted the limitation of motion in his neck, as well as headaches. Between November and December 1990, the veteran was examined by VA. He commented that he always had headaches and said that his neck got weak. There was no spasticity or tightness in the muscles of the neck. Range of motion studies revealed lateral flexion to 25 degrees on the right and to 20 degrees on the left; rotation to 45 degrees on the right and to 40 degrees on the left; anterior flexion to 45 degrees and extension to 45 degrees. An x-ray showed the presence of DJD at the C5, 6, and 7 levels with narrowing of the joint spaces at the C5-6 and 6-7 levels. The compression fracture at the C5 level showed further decrease in height since June 1989 x-ray studies. The diagnosis was status post fracture, cervical spine, remote in time. In June 1992, another VA examination was conducted. During this examination, the veteran complained of stiffness in the neck, with sporadic pain and aching. A neurological examination noted no radicular pain in the arms. An orthopedic examination noted that his neck displayed 25 degrees of lateral flexion bilaterally; 35 degrees of rotation on the right, and 40 degrees on the left; 55 degrees of anterior flexion and 45 degrees of extension. An x-ray showed the old compression fracture at the C5 level with degenerative changes at the C5, 6, and 7 levels. The diagnosis was compression fracture C5 1944 with residual degenerative arthritis C5, 6, and 7; residual pain and limitation of motion of the cervical region with no evidence of cord or root compression. A re-examination was performed between November and December 1993. He complained of chronic, intermittent neck pain without radiculopathic features. The veteran's neck was mildly tender. Range of motion studies revealed 30 degrees of extension; 40 degrees of flexion; rotation to 40 degrees on the right and to 30 degrees on the left; and lateral bending to 20 degrees bilaterally. Motor strength in the upper extremities was 5/5 and symmetrical. Sensation was intact to pinprick and light touch but there was diffuse, nonfocal, subjective decrease to pinprick in the right upper extremity. The impression was status post cervical spine fracture of C5 and C6 in 1944; DDD C4-5, 5-6, and 6-7. The DDD was most likely secondary to the compression fracture. After a careful review of the evidence of record, it is the finding of the undersigned that an increased evaluation for the residuals of a cervical spine fracture, based on limitation of motion, is not warranted. Initially, it is noted that a 60 percent disability evaluation is not justified under Code 5285, which requires that there be abnormal mobility which requires a neck brace. There is no objective evidence that the veteran's neck displays such abnormal movement that he is required to wear a neck brace. When such abnormal mobility is not demonstrated, the disability is to be rated on the basis of limitation of motion or muscle spasm, with 10 percent being added for demonstrable deformity of the vertebral body. Diagnostic Code 5290 states that, in order to warrant the assignment of a 30 percent disability evaluation, there must be severe limitation of motion of the cervical spine. Such limited motion is not present in this case. The most recent evidence of record, which consists of the November to December 1993 VA examination, found that he could flex his neck to 40 degrees and extend it to 30 degrees. While this demonstrates limitation of motion of the cervical spine, it is not severe in nature. The 20 percent disability evaluation assigned clearly compensates the veteran for the degree of limitation from which he currently suffers. Furthermore, it is the conclusion of the undersigned that the current disability evaluation also adequately compensates him for the degree of pain caused by his fracture residuals. This has been described as intermittent in nature, and the objective examination referred to his neck as being mildly tender. However, the records, to include the 1947 VA examination, indicated that the C5 vertebral body was deformed because of the inservice fracture. Therefore, an additional 10 percent disability evaluation is justified under Diagnostic Code 5285. The evidence does not establish that an extraschedular disability evaluation is warranted under 38 C.F.R. § 3.321 (1993). There is no evidence that this disability has resulted in frequent periods of hospitalization or has caused marked interference with employment. In fact, the veteran recently retired after many years of working as an engraver. Therefore, the undersigned concludes that the preponderance of the evidence is against the veteran's claim for an increased evaluation for cervical spine fracture residuals, based upon limitation of motion. However, an additional 10 percent disability evaluation will be provided due to deformity of a vertebral body. B. Entitlement to an increased evaluation for right mandible fracture residuals. According to the applicable criteria, a 20 percent evaluation is warranted for limitation of motion of the temporomandibular articulation to between 21 and 30 mm. A 30 percent disability evaluation requires limitation of motion to between 11 and 20 mm. 38 C.F.R. Part 4, Code 9905 (1993). The service medical records indicated that the veteran fractured his right mandible in a train wreck in 1944. This was manifested by an inability to open his mouth normally. A VA examination conducted in April 1955 revealed that he had a normal bite. Movement to the left was impaired by about 50 percent. Opening of the mouth was limited by about 25 percent. However, there was no limitation interfering with speech or mastication. The diagnosis was well healed fracture. VA outpatient treatment records developed between January 1988 and September 1989 revealed that he was seen for bridge work in 1986 and 1987. However, there were no complaints referable to his jaw. VA hospitalizations in December 1989 and March 1990 also make no reference to any problems with his mandible fracture residuals. The veteran testified at a personal hearing in November 1990, at which time he stated that his jaw would occasionally lock on him. He complained of pain and noted that there was cracking noise in the jaw when he chewed. This caused some trouble in his ability to chew. In June 1992, his jaw was examined by VA. No treatment of the temporomandibular joint had been required since the original injury. His subjective complaints revolved around his inability to fully open his mouth. He stated that the jaw was shorter on the right side, and commented that the joint would occasionally lock. He denied experiencing any numbness in the face. The objective examination revealed that the maximal interincisal opening was 3 cm (30 mm). There was limited protrusion of the mandible, which was noted to deviate to the right. Minimal left lateral excursion of the mandible could be demonstrated. There was no popping or clicking. The right mandible was shorter than the left. He was noted to be able to eat a regular diet without pain, although it was noted that he could not open widely for incising foods requiring an opening greater than 3 cm. Infrequent locking of the temporomandibular joint caused pain and temporary functional interference. A Panorex film showed evidence of an old fracture of the neck of the right mandibular condyle; the right mandibular ramus was shorter than the left; and slight resorption on the anterior surface of the left mandibular condyle. The diagnoses were status post right mandibular subcondylar fracture with displacement of the condyle; and history of a fracture of the mandibular symphysis and loss of the mandibular incisor. After a careful review of the record, it is the finding of the undersigned that an increased evaluation for the residuals of a right mandible fracture is not warranted. The objective evidence of record does not indicate that motion of the veteran's temporomandibular articulation is limited to between 11 and 20 mm, as is required to justify a 30 percent disability evaluation. Rather, the evidence revealed that he was able to open his mouth to 3 cm, or 30 mm. Such a limitation of motion warrants no more than the 20 percent disability evaluation currently assigned. Moreover, the evidence of record does not indicate that an extraschedular evaluation is justified under 38 C.F.R. § 3.321 (1993). This disability has not resulted in frequent periods of hospitalization, nor has it caused marked interference with employment. Therefore, the undersigned concludes that the preponderance of the evidence is against the veteran's claim for an increased evaluation for the residuals of a right mandible fracture. ORDER The appeals of the claims of service connection for a low back disorder and bilateral hand disorders are dismissed; the rating decision of July 19, 1989 is vacated as to these claims. An increased evaluation for the residuals of a cervical fracture, manifested by limitation of motion is denied. An additional 10 percent rating due to deformity of a vertebral body is granted, subject to the laws and regulations governing the award of monetary benefits. An increased evaluation for the residuals of a right mandible fracture is denied. KENNETH R. ANDREWS, JR. 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.