Citation Nr: 0004216 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 94-23 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for degenerative arthritis of the lumbar spine. 2. Entitlement to service connection for degenerative arthritis of the cervical spine. 3. Entitlement to an increased initial rating for the service-connected residuals of a compression fracture of the 12th thoracic vertebra status post decompression surgery at T12-L1, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. A. Markey, Counsel INTRODUCTION The veteran served on active duty from July 1966 to July 1969. This appeal arises from an October 1993 rating decision of the Nashville, Tennessee, Regional Office (RO), which denied service connection for a back disorder consisting of a bruised back and degenerative disc disease of the lumbar spine. In an April 1994 rating decision, the RO awarded service connection for a compression fracture of the 12th thoracic vertebra with decompression surgery at T12-L1, which was evaluated as 10 percent disabling, effective August 27, 1993, the date of receipt of the veteran's claim for compensation. In that same decision, the RO denied service connection for arthritis of the cervical and lumbar spine. In May 1994, the RO assigned a temporary total rating for the thoracic spine claim. See 38 C.F.R. § 4.30, effective November 16, 1993, the starting date of a period of surgery and convalescence relating to thoracic decompression surgery. The 10 percent rating was resumed effective January 1, 1994. The veteran disagrees with the 10 percent rating that was assigned as well as with the denial of service connection for arthritis of the cervical and lumbar spines. The claim for an increased initial evaluation for the service-connected residuals of a compression fracture of the 12th thoracic vertebra status post decompression surgery at T12-L1 will be addressed in the REMAND portion of this decision. FINDINGS OF FACT 1. The veteran has presented no competent evidence tending to demonstrate that he suffers from degenerative arthritis of the lumbar spine related in any way to service or his service-connected connected residuals of a compression fracture of the 12th thoracic vertebra status post decompression surgery at T12-L1, or that he was diagnosed with this disability within a year of his separation from service. 2. The veteran has presented no competent evidence tending to demonstrate that he suffers from degenerative arthritis of the cervical spine related in any way to service or his service-connected residuals of a compression fracture of the 12th thoracic vertebra status post decompression surgery at T12-L1, or that he was diagnosed with this disability within a year of his separation from service. CONCLUSIONS OF LAW 1. The claim for entitlement to service connection for degenerative arthritis of the lumbar spine is not well- grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The claim for entitlement to service connection for degenerative arthritis of the cervical spine is not well- grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Applicable law provides that service connection will be granted if it is shown a particular disease or injury resulting in disability was incurred or aggravated during active duty. If arthritis becomes manifest to a compensable degree within one year of active duty it shall be considered to have been incurred in that period of active duty. 38 U.S.C.A. §§ 1101, 1112, 1113,1137 (West 1991 & Supp. 1999); 38 C.F.R. § 3.309 (1998). A "determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Further, secondary service connection will be granted when a disability is proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (1999). Secondary service connection may be established for a disorder which is aggravated by a service-connected disability. Allen v. Brown, 8 Vet. App. 374 (1995). Statutory law as enacted by Congress also charges a claimant for VA benefits with the initial burden of presenting evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). This threshold requirement is critical since the duty to assist a veteran with the development of facts does not arise until the veteran has presented evidence of a well-grounded claim. Caluza v. Brown, 7 Vet. App. 498, 505 (1995). A well-grounded claim has been defined by the United States Court of Appeals for Veterans Claims (hereinafter the Court) as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect the claim is "plausible" or "possible" is required. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A claimant therefore cannot meet this burden merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well-grounded under § 5107(a). Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). According to the Court in Caluza, a well-grounded claim for entitlement to service connection requires competent evidence of the following: i) current disability (through medical diagnosis); ii) incurrence or aggravation of a disease or injury in service (through lay or medical evidence) and; iii) a nexus between the inservice injury or disease and the current disability (through medical evidence). Caluza at 506. Moreover, the truthfulness of evidence offered by the veteran and his representative is presumed in determining whether or not a claim is well-grounded. King v. Brown, 5 Vet. App. 19, 21 (1993). The Board points out that, with respect to disabilities which are claimed to be secondary to a service connected disability, the third Caluza requirement can also be met if there is evidence demonstrating that a disability is proximately due to or the result of a service-connected disease or injury or if there is evidence that a service- connected disability has aggravated a non-service-connected disability. 38 C.F.R. § 3.310(a) (1999); Allen. The veteran and his representative contend, in substance, that service connection is warranted for degenerative arthritis of the lumbar spine and cervical spine. They contend that degenerative arthritis resulted from an inservice injury sustained by the veteran when he fell off of a helicopter. In his substantive appeal received in June 1994, the veteran also appears to contend that degenerative arthritis of the lumbar and cervical spine was caused by the service-connected connected residuals of a compression fracture of the 12th thoracic vertebra status post decompression surgery at T12-L1. With regard to the first requirement under Caluza, the Board notes that there is medical evidence of record demonstrating that the veteran currently suffers from degenerative arthritis of the lumbar spine and cervical spine. Specifically, the report of a March 1999 VA examination notes a diagnosis of degenerative joint disease and degenerative disc disease involving the cervical and lumbar spine. Further, the veteran was previously diagnosed with degenerative arthritis of the lumbar spine and cervical spine as the result of a March 1994 VA examination, and similar diagnoses are noted in private medical records associated with the claims folder. This medical evidence sufficiently demonstrates that the veteran suffers from degenerative arthritis of the lumbar spine and cervical spine, and thus satisfies the first Caluza requirement (that there be a current disability demonstrated through medical diagnosis). Regarding the second requirement of Caluza, the Board notes that the veteran's service medical records from his periods of active duty are negative regarding treatment for or complaints of degenerative arthritis of the lumbar or cervical spine. It is pointed out that in September 1967, the veteran was seen with a bruised back after falling off of a helicopter (the veteran is service-connected for a fracture of the 12th thoracic vertebra as a result of this fall). In March 1968, the veteran complained of lumbar pain after he fell off of a chopper. However, there is no indication, including in the report of the veteran's separation examination, that he received further treatment for any lumbar or cervical disorders or that he was ever treated for chronic lumbar or cervical spine arthritis, during his service. Further review of the medical records reveals that there is no indication that the veteran was treated for or diagnosed with degenerative arthritis of either the lumbar spine or cervical spine within a year of his separation from active duty service. In fact, from a review of the evidence, the earliest records indicating that he suffered from degenerative arthritis of the lumbar spine and cervical spine are dated in September 1993. Specifically, records from Paul C Nau, M.D. from the Outpatient Diagnostic Center note that magnetic resonance imaging (MRI) studies showed, among other things, mild narrowing of the C3-4 lateral recess, moderate narrowing of the left C6-7 lateral recess, and marked narrowing of the L2-3 intervertebral disc. Regarding the third requirement of Caluza, the Board notes that the medical evidence of record does not demonstrate that the veteran's degenerative arthritis of the lumbar spine and cervical spine is related to his active duty service or to his service-connected connected residuals of a compression fracture of the 12th thoracic vertebra status post decompression surgery at T12-L1. This evidence includes private medical records from Crockett Hospital dated in January 1981 and September 1986, which indicate that the veteran suffered from degenerative disc disease of the lumbar spine and straightening of the normal cervical lordosis, respectively; private medical records from Leon Everett, M.D., who has seen the veteran intermittently since September 1984 for various ailments, including neck and back pain; private medical records from Joseph Huston, M.D., who treated the veteran from December 1990 to September 1993 for neck and low back pain; a June 1994 report of a computerized tomography (CT) scan of the low back conducted by Mark L. Born, M.D.; and the records from Dr. Nau. Further, records from Rex Arendall, M.D., who has seen the veteran intermittently since September 1993 for neck and back pain, among other things, and who performed an anterior cervical diskectomy and anterior cervical fusion in December 1993, do not demonstrate that the veteran's degenerative arthritis of the lumbar spine or cervical spine is related to his active duty service. It is noted that in a September 1993 record from Dr. Arendall the veteran gave a history of low back pain radiating to the lower extremities since the inservice accident. However, Dr. Arenall made no comment regarding the etiology of the low back disability or the propriety of the veteran's contention. As well, the veteran gave similar histories during visits with Stanley G. Hopp, M.D. in September 1993, but Dr. Hopp did not include this alleged etiology in his diagnosis. Moreover, there is no indication in the various VA outpatient treatment records contained in the claims folder that the veteran's degenerative arthritis of the lumbar spine or cervical spine is related to his active duty service or his service-connected residuals of a compression fracture of the 12th thoracic vertebra status post decompression surgery at T12-L1. As noted above, the veteran was diagnosed with these disabilities on VA examinations dated in March 1994 and March 1999. During the March 1994 examination, the veteran gave a history of low back, left extremity, and groin pain since the inservice accident. The veteran was examined and diagnosed with an old healed compression fracture of the 12th thoracic vertebra, recent decompression surgery T-12, L-1 level, with residual low back and groin pain, degenerative disc disease in the lumbar and cervical spine, and, as noted, degenerative arthritis of the lumbar and cervical spine. The examiner opined that the inservice spine injury was related to the old healed fracture of the 12th thoracic vertebra but that the degenerative arthritic changes throughout the remainder of the lumbar spine and cervical spine were not related to the compression fracture. During the March 1999 examination, the veteran complained of pain in the upper lumbar region that radiates to the left hip and groin, and down the left lower extremity to the lateral three digits. He also complained of neck pain which caused headaches and radiated to his upper extremities, and reported that he has had neck and low back pain since the inservice accident. Physical examination revealed degenerative joint disease and degenerative disc disease involving the lumbar and cervical spine, and the examiner noted that these disabilities were in no way related to the veteran's T-12 compression fracture or the T12-L1 diskectomy. Finally, it is noted that in a March 1981 letter, Robert H. Beaver, M.D. had indicated that the veteran appeared to have an old compression fracture of the lumbar spine with superimposed degenerative joint disease; however, it is clear from all of the evidence of record that the veteran in fact has an old compression fracture of the thoracic spine. Regarding the veteran's statements made during various examinations to the effect that his degenerative arthritis of the lumbar and cervical spine was related to service, and his apparent contention that the degenerative arthritis was caused by his service-connected connected residuals of a compression fracture of the 12th thoracic vertebra status post decompression surgery at T12-L1, the Board points out that such contentions, without supporting medical evidence, are not competent. Espiritu. As there is no medical evidence that the veteran suffers from degenerative arthritis of the lumbar spine or cervical spine that is related in any way to service or his service- connected residuals of a compression fracture of the 12th thoracic vertebra status post decompression surgery at T12- L1, or that he was diagnosed with this disability within a year of his separation from service, the latter two requirements set forth in Caluza, in order to make a claim well grounded, are not met. Accordingly, the Board is compelled to find that the veteran's claims of entitlement to service connection for degenerative arthritis of the lumbar spine and cervical spine are not well grounded. As stated previously, absent a well-grounded claim there is no statutory duty under 38 U.S.C.A. § 5107(a) (West 1991) to assist the veteran with the development of evidence. ORDER Entitlement to service connection for degenerative arthritis of the lumbar spine is denied. Entitlement to service connection for degenerative arthritis of the cervical spine is denied. REMAND The veteran and his representative also contend that a disability evaluation higher than that initially assigned following the grant of service connection for the residuals of a compression fracture of the 12th thoracic vertebra status post decompression surgery at T12-L1 is warranted. The Board finds that the veteran has submitted evidence that is sufficient to justify a belief that this claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v Derwinski, 1 Vet. App. 78 (1990); cf. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Therefore, VA has a duty to assist him in the development of facts pertinent to his claim. Id. The service-connected residuals of a compression fracture of the 12th thoracic vertebra status post decompression surgery at T12-L1 is currently and has been rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5285 (1999). A 60 percent evaluation under Diagnostic Code 5285 contemplates vertebra fractures without cord involvement but with abnormal mobility requiring a neck brace. In other cases, this disability is to rated in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrative deformity of vertebral body. A review of the file, including the evidence received pursuant to the October 1996 Board remand, reveals that radiculopathy may be a residual of the compression fracture of the 12th thoracic vertebra status post decompression surgery at T12-L1. It is noted that the medical records are replete with references to the veteran's complaints of pain in the thoracic spine region radiating to his left groin area and down his left lower extremity. However, from a review of the objective evidence, it is unclear that such is the case (i.e. that pain in the groin and left lower extremity is a residual of the compression fracture of the 12th thoracic vertebra status post decompression surgery at T12-L1). For example, as a result of the March 1994 VA examination, the veteran was diagnosed with, among other things, recent decompression surgery T-12, L-1 with residual low back pain and left groin pain. On the other hand, an August 1994 outpatient treatment records makes reference to complaints of pain in the mid-lumbar area radiating to the left groin and thigh, and notes an assessment of possible L3 radiculopathy. Finally, during the March 1999 VA examination, the veteran complained of pain in the upper lumbar region which radiates to the left hip and groin, and down the left lower extremity to the lateral three digits of the foot. However, the examiner did not comment on these complaints. The Board finds that a more comprehensive examination is necessary in order to properly rate this disability. Finally, the Board points out that in the currently appealed April 1994 rating decision, service connection was established for this disability and a 10 percent disability evaluation was assigned from August 27, 1993, the day the veteran filed his claim for service connection. See 38 C.F.R. § 3.400 (1999). Recently, the Court noted that there was a distinction between a claim based on the veteran's dissatisfaction with the initial rating (a claim for an original rating) and a claim for an increased rating. It was also indicated that in the case of an initial rating, separate ratings can be assigned for separate periods of time based on the facts founds, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In readjudicating this claim, the RO should consider the application of "staged ratings" as enunciated in Fenderson. Under the circumstances, the Board finds this case must be REMANDED to the RO for the following actions: 1. The veteran should be scheduled for a VA neurologic examination in order to ascertain whether the residuals of a compression fracture of the 12th thoracic vertebra status post decompression surgery at T12-L1 include pain radiating to the groin and lower extremity, or whether these complaints are related to or part of a separate disability. The claims folder must be made available to the examiner for review. The examiner should be asked to provide detailed findings regarding any neurological involvement associated with the compression fracture of the 12th thoracic vertebra status post decompression surgery at T12-L1. 2. The RO should then review the claim for an increased initial rating for the service-connected residuals of a compression fracture of the 12th thoracic vertebra status post decompression surgery at T12-L1. In adjudicating this claim, consideration should be given to all applicable diagnostic codes, 38 C.F.R. § 4.7 (1999), and all other applicable regulations. Consideration should also be given to the application of "staged ratings" as enunciated in Fenderson. If the decision is adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and the case should be returned to the Board. No action is required by the veteran until he receives further notice. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals