BVA9507948 DOCKET NO. 92-01 398 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a herniated nucleus pulposus, to include degenerative changes of the lumbar spine. 2. Entitlement to an increased (compensable) disability evaluation for a low back strain. 3. Entitlement to an increased (compensable) disability evaluation for tendinitis of the right leg hamstring. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD J.W. Engle, Counsel INTRODUCTION The appellant served on active duty from August 1952 to November 1955. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a decision in September 1990 by the Detroit, Michigan, Department of Veterans Affairs Regional Office (VARO). The Board remanded this case in January 1993 and again in March 1994 for additional development to include VA examinations. The requested development has been completed and the case returned to the Board for completion of appellate review. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he has a herniated nucleus pulposus as a result of a parachute jump during service in August 1955. He further argues that his service-connected low back strain and tendinitis of the right leg hamstring muscle have increased in severity and warrant higher disability evaluations. 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 appellant's claims to service connection for a herniated lumbar nucleus pulposus to include degenerative changes of the lumbar spine and a compensable disability evaluation for tendinitis of the right hamstring muscle. However, the record does support entitlement to a 10 percent disability evaluation for the low back strain. FINDINGS OF FACT 1. The service medical records reflect that in June 1953 the appellant was seen for complaints of back pain which started while he was digging a sump. No diagnosis was noted. 2. In January 1955 the appellant was seen for complaints of sciatic pain of two months duration after a parachute jump. The impression at that time was dislocated lumbar vertebral disc. 3. In August 1955 the appellant was seen for complaints of back pain after a parachute jump. Examination was significant only for moderate tenderness and some spasm in the lumbosacral area and x-ray examination of the lumbosacral spine was normal. The examiner noted that the appellant's clinical picture was "strongly compatible" with the diagnosis of an acute lumbosacral sprain. 4. On service separation examination in October 1955 a diagnosis of a mild chronic lumbosacral sprain was noted. There were no findings to support the presence of a herniated nucleus pulposus or degenerative changes within the lumbar spine. 5. On VA examination in December 1955 diagnoses of mild low back strain and mild tendinitis of the right hamstring were noted. There was no evidence of a herniated nucleus pulposus or degenerative changes within the lumbar spine. 6. The post-service medical records do not establish that the appellant sustained a herniated nucleus pulposus within the lumbar spine due to his activities during service. 7. Degenerative changes of the lumbar spine were first reported within the record in May 1989. 8. A VA physician in April 1994 noted that it was "highly unlikely" that a relationship existed between the degenerative changes of the lumbar spine and the service-connected low back strain. 9. The appellant's service-connected low back strain is manifested by subjective complaints of pain and morning stiffness and is productive of a slight limitation of motion in the lumbar spine. 10. The appellant's service-connected tendinitis of the right hamstring is manifested by a history of tendinitis with no current disability. CONCLUSIONS OF LAW 1. A herniated nucleus pulposus within the lumbar spine was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). 2. Degenerative changes of the lumbar spine were not incurred in or aggravated by service nor is there a basis upon which to presume the incurrence of degenerative changes of the lumbar spine in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. § 3.303, 3.307, 3.309 (1994). 3. Degenerative changes of the lumbar spine were not shown to be the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1994). 4. The schedular criteria for a 10 percent disability evaluation for a low back strain are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, Diagnostic Codes 5295- 5292 (1994). 5. The schedular criteria for a compensable disability evaluation for tendinitis of the right hamstring are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.31, Diagnostic Codes 8799-8724 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claims are well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Background The service medical records reflect that in June 1953 the appellant was seen for complaints of a backache of three weeks duration. He reported that the pain started while he was digging a sump. No diagnosis was noted. In January 1955 the appellant was seen for complaints of characteristic sciatic pain of two months duration after a parachute jump. The impression at that time was dislocated lumbar vertebral disc. In August 1955 the appellant was again seen for complaints of low back pain. It was noted that the physical examination was essentially negative except for moderate tenderness and some spasm in the lumbosacral area. No significant abnormalities were noted on neurological examination and x-ray examination of the lumbar spine did not reveal any abnormalities. The examiner indicated that the appellant's clinical picture was strongly compatible with the diagnosis of an acute lumbosacral sprain. On service separation examination the appellant reported pain on flexion of the lumbar spine. It was noted that a special orthopedic consultation was obtained and the diagnosis was mild chronic sprain, lumbosacral spine. In December 1955 a VA examination was conducted. The appellant reported complaints of dull pain over the lumbar region and in the right leg at the insertion of the biceps femoris and semimembranous and tendenosis muscles. On examination the appellant had a normal gait and posture. The examiner indicated that he had a normal appearing spine. Flexion of the lumbar spine beyond 100 degrees caused subjective complaints of localized pain in the lumbar area. There was no muscle spasm but subjective tenderness was noted at L4-L5. The right lower extremity was grossly normal in appearance and the knee and hip range of motion were complete. Passive hyperextension of the right knee caused pain at the insertion of the hamstring muscle. There also was some tenderness to palpation but no muscle spasm. X-ray examination of the lumbar spine revealed that the lumbosacral angle was increased. The diagnoses were mild low back strain and mild tendinitis of the right hamstring muscle. In January 1956 a rating decision granted service connection for mild low back strain with right hamstring tendinitis and assigned a noncompensable disability evaluation effective from November 4, 1955. Private treatment reports dated in 1989 and 1990 noted that the appellant was seen for complaints of neck and low back pain. X- ray examination of the lumbar spine in May 1989 noted normal vertebral alignment and normal intervertebral spacing. No fracture, dislocation or abnormal variation in bony density was found. However, small osteophytes at the adjacent anterolateral margins of L5-S1 were noted. The impression was minor hypertrophic changes, lumbosacral junction. In March 1990 the appellant reported complaints of pain shooting down his left leg. The impression included degenerative disc disease of the lumbar spine. In August 1991 a VA examination was conducted. The appellant reported complaints of back pain on a daily basis. On examination straight leg raising was normal and there was no muscle spasm but there was slight tension of the paravertebral muscles. Lumbar spine range of motion was forward flexion to 90 degrees and rotation and extension were normal. The diagnosis was low back pain. A VA examination was conducted in June 1993. The appellant reported that he injured his back in a parachute jump during service. He noted no complaints of leg pain, numbness, tingling or weakness in the legs. On examination he demonstrated lumbar forward flexion to 90 degrees and extension to 20 degrees. Straight leg raising was negative and he had 5/5 motor strength in the lower extremities. X-ray examination of the lumbar spine revealed significant narrowing and degenerative change at L5-S1 with early degenerative disc disease of L3-L4 and L4-L5. Increased calcifications in the disc space and irregularity of the vertebral endplates were also noted. There were no collapsed vertebral bodies or subluxation and the sacroiliac joints revealed early degenerative change in the inferior portions. The diagnosis was degenerative joint disease, L5-S1. In August 1993, a rating decision concluded that separate disability evaluations for the low back strain and the tendinitis of the right leg were warranted. Accordingly, the noncompensable disability evaluation for the low back strain were confirmed and continued and a noncompensable disability evaluation for the tendinitis of the right hamstring was assigned effective from January 1993. In April 1994 a VA examination was conducted. The appellant reported complaints of pain on walking long distances beyond 1/4 mile with spasm and cramping in the muscles. On examination the appellant's thighs were measured at 19 1/2" bilaterally in the same area of the mid-thigh. There was no muscle wasting and the strength in the quadriceps muscles was equal. There was no evidence of pain in the sciatic notch and no cramping or muscle tenderness. The diagnosis was muscle cramps in the hamstring muscles without associated atrophy, penetration or wasting. On examination of the spine, the appellant reported complaints of pain in the muscles of the lumbosacral area and paravertebral muscles. He denied numbness or tingling of his feet or hands. On physical examination there were no postural abnormalities and the musculature was considered to be well developed. The lumbar spine range of motion was forward flexion to 85 degrees, extension to 35 degrees, lateral flexion was to 40 degrees, bilaterally, and rotation to 35 degrees, bilaterally. Slight pain was noted on flexion beyond 85 degrees. The knee and ankle reflexes were slightly diminished, but equal and the Babinski was downward pointing. Fine touch and pinprick were within normal and no segmental radiculopathy was noted in the hands or feet. X-ray examination of the lumbar spine revealed that the height of the vertebral bodies was well maintained and small osteophytes were noted anteriorly, especially involving the lower three vertebral bodies. The joint spaces were well maintained and there was no spondylolisthesis or spondylolysis. The radiologic impression was early spondylosis of the lower three vertebral bodies. The overall diagnosis was mechanical low back pain syndrome, without radiculopathy. On follow-up VA examination in September 1994 the appellant reiterated his complaints of back pain and further noted that his right leg hurt. When questioned regarding his right leg symptoms he pointed to his right quadriceps muscle. On examination the appellant did not walk with a limp and did not wear any appliance or use crutches or a walker. Lumbar spine range of motion was forward flexion to 90 degrees, extension to 25 degrees, lateral flexion to 40 degrees, bilaterally and rotation to 35 degrees, bilaterally. No neurological abnormalities were noted and muscle strength of the lower extremities was within normal limits. Both thighs and calves measured the same, bilaterally and there was no area of tenderness, or other abnormality regarding the right lower extremity. When asked where the pain is in the right leg, he pointed to the area of the quadriceps and adductor muscles. X-ray examination of the lumbar spine revealed partial sacralization of L5 with small osteophyte formation anteriorly involving L4 and L5 as well as joint space narrowing at those levels with sclerotic changes. The radiologist noted that in comparison to the April 1994 x-ray study there probably was some progression of arthritis at the L5-S1 level. The overall diagnoses included mechanical back pain syndrome without radiculopathy and tendinitis of the right hamstring, no significant findings at this time. The examiner further commented that: ...it is entirely possible that with the passage of time and the advancing years, he (the appellant) has developed degenerative disease of the spine. Whether the original symptoms of muscle spasms in his back are directly related to the degenerative disk disease at this time, it is highly unlikely that that is so. In any event, the x-ray finding suggests that he has degenerative disk disease; however, there is no evidence of a prolapsed disk or symptoms referable to thecal root compression. Analysis Service Connection The appellant is seeking entitlement to service connection for a herniated lumbar nucleus pulposus. He has argued that he sustained a "slipped disc" as the result of a parachute jump injury during service. Under pertinent law and VA regulations, service connection may be granted if the facts, shown by the evidence, establish that the claimed lumbar herniated nucleus pulposus resulted from disease or injury incurred in or aggravated while on active duty. 38 U.S.C.A. § 1110 (West 1991). Furthermore, for the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1994). In addition, service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1994). After review of the evidence of record, the Board concludes that the weight of the evidence is against the appellant's claim to service connection for a herniated lumbar nucleus pulposus. While a diagnostic impression of a dislocated lumbar vertebral disc was noted in January 1955, during the appellant's period of active duty, that impression was not confirmed on subsequent examination. In August 1955 when the appellant was again seen for complaints of low back pain there were no findings to support the presence of a herniated lumbar nucleus pulposus and the examiner noted that the appellant's clinical picture was "strongly compatible" with the diagnosis of an acute lumbosacral sprain. On service separation examination in October 1955, a special orthopedic consultation was obtained which found no evidence of a herniated lumbar nucleus pulposus; however, a diagnosis of a mild chronic lumbosacral spine sprain was reported for which service connection was granted by a rating decision in January 1956. There is no additional objective medical evidence of record to establish that the appellant has ever sustained a herniated nucleus pulposus of the lumbar spine either during service or at any time thereafter. Therefore, based upon the evidence of record as summarized above, entitlement to service connection for a herniated lumbar nucleus pulposus has not been established. 38 U.S.C.A. § 1110, 1131 (West 1991). Further review of the record reveals that there is no objective medical evidence of record to establish the presence of degenerative changes of the lumbar spine either during service or within the initial post service year. While the appellant sustained injuries during service which resulted in a chronic low back strain, the first objective medical evidence of degenerative changes of the lumbar spine was in May 1989 when a private x-ray examination report noted minor hypertrophic changes of the lumbosacral junction. In view of the lack of evidence of degenerative changes during service or within the initial post service, as well as the lack of evidence to establish continuity of symptomatology from service discharge until 1989, the Board concludes that the May 1989 finding of minor hypertrophic changes of the lumbar spine approximately 34 years after service discharge is too remote in time to relate to the appellant's period of active duty. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. § 3.303, 3.307, 3.309 (1994). With respect to the appellant's contention that his current lumbar spine pathology is related to the service-connected low back strain, the VA examiner in September 1994, indicated that it was highly unlikely that the original symptoms of muscle spasm in his back were directly related to the degenerative disc disease. In view of the lack of objective medical evidence to the contrary, the Board concludes, based upon the opinion expressed by the VA examiner in September 1994, that the appellant's current lumbar spine pathology is not related to the service- connected low back strain. 38 C.F.R. § 3.310(a) (1994). Increased Disability Evaluations A.) Low Back Strain The appellant's service-connected low back strain is currently evaluated pursuant to Diagnostic Code 5295 which provides, in pertinent part, that a lumbosacral strain with slight subjective symptoms only warrants a noncompensable disability evaluation. Where characteristic pain on motion is found, a 10 percent disability evaluation is warranted and where muscle spasm on extreme forward bending and unilateral loss of lateral spine motion is demonstrated, a 20 percent disability evaluation is warranted. Furthermore, Diagnostic Code 5292 provides that a slight limitation of motion of the lumbar spine warrants a 10 percent disability evaluation, a moderate limitation of motion warrants a 20 percent disability evaluation and a severe limitation of motion warrants a 40 percent disability evaluation. The evidence of record reflects subjective complaints of low back pain and morning stiffness. However, while range of motion studies involving rotation and lateral flexion were normal, a slight limitation of forward flexion and extension of the lumbar spine was identified. In view of the lack of medical evidence to disassociate the slight limitation of motion of the lumbar spine from the service-connected low back strain, the Board concludes that a 10 percent disability evaluation is warranted pursuant to Diagnostic Code 5292. B.) Right Hamstring Muscle Tendinitis The appellant's tendinitis of the right hamstring muscle is currently evaluated as analogous to neuralgia of the internal popliteal nerve pursuant to Diagnostic Code 8724. These symptoms are evaluated as analogous to complete or incomplete paralysis of the internal popliteal nerve for which a mild incomplete paralysis warrants 10 percent a moderate incomplete paralysis warrants 20 percent and a severe incomplete paralysis warrants a 30 percent disability evaluation. Review of the record reveals that on the most recent VA examination in September 1994 the appellant reported complaints of pain in his right leg. However, when questioned further by the examiner regarding the specific location of the pain he pointed to his quadriceps and adductor muscles and not the hamstring. Furthermore, on physical examination, no abnormalities regarding the right hamstring muscle was found. The VA examiner indicated that there was no evidence of tendinitis, muscle rupture, loss of motor strength or avulsion of the hamstring muscle or muscle wasting. In view of the above, and the lack of objective evidence to establish the presence of functional disability associated with the service-connected tendinitis of the right hamstring muscle, the Board concludes that entitlement to a compensable disability evaluation is not warranted. The appellant's contentions and statements with regard to service connection for a herniated lumbar nucleus pulposus and a compensable disability evaluation for tendinitis of the right hamstring muscle have been carefully considered. However, they are found to be outweighed by the objective medical evidence of record. Furthermore, the Board finds that the evidence regarding these issues is not so evenly balanced as to require application of the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b) (West 1991). ORDER Service connection for a herniated lumbar pulposus to include degenerative changes of the lumbar spine is denied. A 10 percent disability evaluation for the low back strain is granted, subject to controlling regulations applicable to the payment of monetary benefits. A compensable disability evaluation for tendinitis of the right hamstring muscle 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.