Citation Nr: 0004982 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 98-10 015A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for status post right latissimus dorsi flap to correct congenital absence of the right pectoral muscle. 2. Entitlement to a higher evaluation for chronic muscular strain lower cervical and upper dorsal spine with degenerative changes of the cervical spine, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Kelli A. Kordich, Associate Counsel INTRODUCTION The veteran had active military service from June 1977 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1998 rating decision by the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). This rating decision denied service connection for status post right latissimus dorsi flap to correct congenital absence right pectoral muscle and granted service connection for chronic muscular strain lower cervical and upper dorsal spine with degenerative changes of cervical spine assessing a 10 percent evaluation effective July 1, 1997. The rating decision also granted service connection for residuals right patella tendon repair assigning a 10 percent evaluation effective July 1, 1997. A notice of disagreement was received in May 1998, a statement of the case was issued in June 1998, and a substantive appeal was received in July 1998. By a letter dated April 1999 the veteran withdrew his appeal as to the right patella tendon repair indicating that he was satisfied with the 10 percent evaluation. The Board notes that the veteran withdrew his request for a Board hearing. FINDINGS OF FACT 1. The veteran entered military service with a congenital absence of the right pectoralis muscle. 2. During the veteran's military service, there was no increase in the severity of the preexisting congenital absence of the right pectoralis muscle. 3. During his military service, the veteran underwent surgical transposition of the right latissimus dorsi to correct the congenital absence of the right pectoralis muscle. 4. The veteran's current right shoulder, right chest and right scapular pain complaints are shown to be the usual effects of the inservice surgical treatment which was performed for the purpose of ameliorating the congenital absence of the right pectoralis muscle. 5. The veteran's service-connected chronic muscular strain lower cervical and upper dorsal spine with degenerative changes of the cervical spine is manifested by slight limitation of motion and x-ray evidence of arthritis. CONCLUSIONS OF LAW 1. The inservice surgical transposition of the right latissimus dorsi was for the purpose of ameliorating the congenital absence of the right pectoralis muscle, and the preexisting congenital absence of the right pectoralis muscle was not otherwise aggravated by the veteran's active military service. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1999). 2. The criteria for entitlement to an evaluation in excess of 10 percent for service-connected chronic muscular strain lower cervical and upper dorsal spine with degenerative changes of the cervical spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § Part 4, including §§ 4.7, 4.40-4.45, 4.59, 4.71a, Diagnostic Codes 5003-5290 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for Status Post Right Latissimus Dorsi Flap. The first issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a),(b). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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 was incurred in service. 38 C.F.R. § 3.303(d). The Board initially finds the claim to be well-grounded under the particular facts of this case which show a preexisting disorder, medical intervention during service of a nature which would be expected to leave residuals, and pertinent post-surgery complaints during service. 38 U.S.C.A. § 5107(a). The veteran contends that his chronic right scapular pain is a result of surgery in service to correct a congenital absence right pectoral muscle. In October 1980 the veteran underwent surgery to correct a congenital absence of the right sternal head of the pectoralis muscle and had operative repair with latissimus dorsi flap. The clinical record indicated that the veteran had a benign postoperative course until the third day when he manifested temperatures to 102, and had a slight amount of edema under his surgical site. CBC was normal, chest x-ray was normal, however, the veteran was placed on antibiotics with resolution of the fever, edema, and tenderness within 72 hours and continued to do well. There was no evidence of complaints or treatment for chronic scapular pain. In July 1996, the veteran signed a document when qualifying to operate a mobile crane indicating that he had no problems lifting a 50-lb. object. Examination reports after the surgery mention no complaints or residuals. In a Report of Medical Assessment dated March 1997, the veteran noted a decreased utilization of his right arm and knee from surgery complications and old age. In a July 1997 VA examination the veteran reported a constant tight sensation and discomfort in his right arm and found it difficult to swing a mop or play baseball. The examination showed a 9-inch scar on the right anterior chest from surgical muscle transposition. He also had a 4.5-inch scar in the right lateral chest secondary to surgery with two small drainage tube scars below that scar. The scars were slightly tender on palpation. The veteran had full and painless range of motion of the shoulders and joints of the upper extremities. He did carry his right shoulder somewhat higher than the left shoulder. The examiner noted that the musculature around the right shoulder seemed much better developed than around the left shoulder in spite of the very good transplant of the latissimus dorsi over his right pectoral region. VA outpatient records dated May 1998 to November 1998 indicate that the veteran complained of pain in the area of the corrective surgery. The examiner noted that the etiology was unclear and offered the veteran a neurology/pain consultation which was refused. In a consultation report dated November 1998 the veteran reported that he has had chronic pain in the right scapular shoulder and chest for a long time and in the past few years it was getting worse. The examination showed full shoulder range of motion and shoulder abduction and flexion was 4/5. Tenderness was noted around the scapular upper, mid and lower trapezius. The tenderness was more along the scar at the inferior border of the scapular and lateral chest wall. The diagnosis was chronic pain right scapular post muscle transposition possible myofascial in origin. After reviewing the record, the Board believes it clear that the veteran entered service with a preexisting absence of the right pectoral muscle. He underwent a surgical procedure to correct this problem, and the totality of the medical records documenting the inservice procedure shows that the surgery was ameliorative in nature. As provided in 38 C.F.R. § 3.306(b)(1), the usual effects of such treatment are not to be service connected. There can, however, still be service connection on the basis of aggravation of the preexisting condition. However, service medical records show no such increase in severity. Medical records associated with the 1980 surgery show that he presented with no symptomatic complaints. Significantly, there were no complaints or treatment following surgery in 1980 until March of 1997 when the veteran indicated a decreased utilization of his right arm due to surgery and old age. In the July 1997 VA examination the veteran complained of a tight sensation and discomfort in his right arm. However, the fact that there may be some decrease in function of the right arm due to the surgery is contemplated under 38 C.F.R. § 3.306(b)(1) as a possible usual effect of the ameliorative surgery, as are the scars. In other words, the record does not show any increase in the severity of the preexisting disorder during service, only the usual of the surgical treatment accomplished for the purpose of ameliorating the preexisting condition. In reaching this determination, the Board has reviewed the evidence in light of 38 U.S.C.A. § 5107(b), but the positive evidence is not in a state of equipoise with the negative evidence to otherwise permit a favorable determination. II. Higher Evaluation for Cervical and Dorsal Spine Disability The veteran is appealing the original assignment of a disability evaluation following an award of service connection, and, as such, the claim for the increased evaluation is well-grounded. 38 U.S.C.A. § 5107(a); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. No additional action is necessary to meet the duty to assist the veteran. 38 U.S.C.A. § 5107(a). Moreover, since the present appeal arises from an initial rating decision which established service connection and assigned the initial disability evaluation, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 127 (1999). Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, 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. In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The veteran contends that his back disability is more severe than contemplated by the 10 percent evaluation. The veteran was afforded a VA examination in July 1997 in which he reported a burning sensation in the intermittent posterior aspect of the base of his cervical spine as well as radiating down into the mid dorsal back region where there was tenderness present along that general area. The symptoms were worse with rotation of the head and neck to the left, which was partially restricted, and more painful again in the lower cervical upper dorsal back region. He also had continued symptoms in this general area with attempts at full flexion at the neck. The veteran described intermittent tingling occurring once every two or three days involving his upper extremities, somewhat worse on the left than on the right, but no radiating pain and no significant weakness noted in the upper extremities. The examination showed tenderness to direct palpation in the general area of C7-D1 as well as in the upper portion of the dorsal back region from about D4 to D6 vertebrae. There was no significant tenderness or spasm present in the posterior cervical or trapezius musculature or along the paraspinous dorsal musculature. The veteran had excellent range of motion of the cervical spine with the exception of lack of 30 degrees of rotation of the head and neck to the left, which caused him some discomfort in the lower cervical upper dorsal back region. On attempts at full flexion/extension of the head and neck, which seemed to be quite good, there seemed to be a general straightening of the lumbar spine and lack of general motion present in the cervical area. Otherwise the veteran had full and painless range of motion of the shoulders and joints of the upper extremities. X-rays of the cervical spine showed good alignment of the cervical spine, but minimal early degenerative changes were present at the C6-C7 uncovertebral joints; no evidence of arthritic changes were present and no evidence of traumatic changes were present in the dorsal back region. There appeared to be a very minimal diminution of the C6-C7 disk interspace on the x-rays. The lateral views of the cervical spine demonstrated marked straightening of the cervical spine, elements of what appeared to be a slight anterior compression of the vertebral body of C6 and again, minimal diminution of the C6-C7 interspace. The lateral view of the dorsal spine demonstrated a normal dorsal kyphotic curvature. The vertebral bodies appeared to be all well maintained; the disk spaces were all well maintained. There were no traumatic or arthritic changes present. The diagnosis was chronic muscular strain problem in the lower cervical and upper dorsal back region with what appeared to have been a later small compression fracture of the vertebral body of C6 anteriorly, and slight diminution of the C6-C7 disk space. Pursuant to 38 C.F.R. § 4.71, Diagnostic Code 5290, limitation of motion of the cervical spine of a severe nature warrants a 30 percent evaluation. A moderate limitation of motion corresponds to a 20 percent evaluation and slight limitation of motion corresponds to a 10 percent evaluation. Under the schedular criteria, the evaluation of the veteran's arthritis of the cervical spine turns on the degree to which motion of the cervical segment is limited. 38 C.F.R. § 4.71a, Diagnostic Code 5003-5290. Under Diagnostic Code 5003 of the VA schedule for rating disabilities, a 20 percent evaluation is appropriate for degenerative arthritis with X-ray evidence of involvement of two or more major joints or two or more minor joints, with occasional incapacitating exacerbations and a 10 percent evaluation is appropriate for degenerative arthritis with X- ray evidence of involvement of two or more major joints or two or more minor joint groups. Diagnostic Code 5003 of the rating schedule provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is to be assigned for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. Part 4.71, Diagnostic Code 5003. The Board finds that the preponderance of the evidence is against the veteran's claim for an evaluation in excess of 10 percent for the veteran's back disability. The evidence does not show more than slight limitation of motion. There was no evidence of muscle spasm, radiating pain, weakness or atrophy, with only discomfort on rotation of the head and neck to the left. Accordingly, the Board concludes that the preponderance of the evidence is against a higher evaluation based on functional loss due to pain on use or due to flare- ups. The potential application of various provisions of Title 38 of the Code of Federal Regulations have also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the veteran that the service connected disorder at issue has resulted in marked interference with employment or necessitated frequent periods of hospitalization so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash, 8 Vet. App. at 227. Finally, with regard to the foregoing decision, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of equipoise of the positive evidence and the negative evidence to otherwise permit a favorable resolution of the present appeal. ORDER The appeal is denied as to both issues. ALAN S. PEEVY Member, Board of Veterans' Appeals