Citation Nr: 0003171 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 98-13 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased initial rating evaluation for service connected post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. 2. Entitlement to an increased initial rating evaluation for service connected residuals of fracture of L1 vertebra, currently evaluated as 20 percent disabling. 3. Entitlement to an increased (compensable) evaluation for service connected residuals of a fracture of the left wrist. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Associate Counsel INTRODUCTION The veteran served on active duty from August 1964 to August 1968. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO), in Montgomery, Alabama. The issues of entitlement to increased rating evaluations for the veteran's service connected PTSD and left wrist disability will be addressed in the REMAND portion of this decision. FINDING OF FACT The veteran's residuals of a fracture of L1 vertebra are manifested by limitation of motion with 40 degrees of flexion and 25 degrees of extension with complaints of pain. CONCLUSION OF LAW The schedular criteria for a rating in excess of 20 percent for residuals of a fracture of the L1 vertebra have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 5295 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board has found that the veteran's claims are well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991) in that they are plausible, that is meritorious on their own or capable of substantiation. This finding is based upon the veteran's assertion that the PTSD, low back disability, and left wrist disability are more disabling than reflected by their current rating. Proscelle v. Derwinski, 2 Vet. App 629 (1992). Once it has been determined that a claim is well grounded, VA has the statutory duty to assist the veteran in the development of evidence pertinent to that claim. The Board is satisfied that all relevant evidence is of record. Under the laws administered by VA, disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155. 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 (1999). A review of the service medical records reflects that in 1968 the veteran was involved in an automobile accident and sustained several injuries, including a compression fracture of the L1 vertebra. A VA examination was conducted in September 1968. X-rays of the lumbosacral spine showed an old minimal compression deformity of the body of the L1 with a 20 percent compression of the vertebra. The diagnoses included history of a compression fracture of the lumbar vertebra, asymptomatic. In November 1969 the RO granted service connection for residuals of a fracture of the L1 and assigned a noncompensable rating under diagnostic code 5285. A VA examination was conducted in July 1992. The pertinent diagnosis was chronic lumbar syndrome, old compression fracture L4-L5. In August 1992, the RO assigned a 20 percent rating for residuals of a fracture of the L1 under diagnostic code 5295. The 20 percent has remained in effect since that time. The veteran received intermittent treatment at a VA outpatient clinic from 1992 to 1994 for several problems, including low back pain. The veteran underwent a VA compensation and pension examination in June 1993. He reported to the examiner that he sustained an injury to the back secondary to a motor vehicle accident while in the service. He indicated that he had received conservative treatment and it has continued to bother him over the years. He reported difficulty bending, lifting, twisting or stooping, as well as prolonged sitting, standing or walking. He described pain radiation into the right leg down to about the level of the calf, with numb spots in the right leg. The examination revealed that he moved somewhat slowly with a slight limp on the right. The veteran was able to stand erect and there was no spasm or tenderness noted. Range of motion of the lumbar spine was 70 degrees of flexion and 25 degrees of extension. Heel and toe walk was fair, and he could squat less than one-half way down and arise again. Reflexes were 2+ at the knees and 1+ at the ankles. Sensation appeared to be intact in both feet. X-rays of the lumbar spine showed minimal chronic degenerative disc disease, L4 and L5 spaces with minimal rotary scoliosis, and extensive degenerative disease of the right hip. The impression was chronic low back syndrome - history of old injury with L1 fracture. On file are documents from the Social Security Administration (SSA) which show that the veteran was awarded disability benefits in July 1994. Of record is a report from the VA Vocational and Rehabilitation Service, dated in November 1994, which is to the effect that the veteran's service connected and nonservice connected disabilities combined are so severe as to preclude reasonable feasibility of achieving a vocational goal at this time. The veteran underwent a VA examination in November 1994. He reported chronic low back pain which varied in severity, and which was aggravated by bending, lifting, and prolonged sitting, standing or walking. He described pain radiation into the right leg down to the calf. The medical history revealed that he underwent a right hip replacement in June 1994. The examination revealed that he moved about somewhat slowly with a definite limp on the right. The veteran was able to stand erect and there was no spasm noted. Range of motion of the lumbar spine was 45 degrees of flexion and 10 degrees of extension with pain on motion of the back. He could heel and toe walk only for a few steps, and he could squat only one- third of the way down and arise again. Reflexes were intact at the knees and 1+ at the ankles, obtainable with distraction. Sensation appeared to be intact in the lower extremities. Private x-rays of the lumbar spine showed minimal osteoarthritic changes of the lumbar spine. The impression was chronic lumbar syndrome - history of injury with fracture of L1. The veteran continued to receive treatment at VA facilities for various disorders. The veteran underwent a VA examination in December 1996. He reported chronic low back pain which varied in severity, and which was aggravated by bending, lifting, carrying or stooping. He reported requiring position changes as prolonged sitting, standing or walking is bothersome. He described intermittent episodes of pain radiation into the right leg down to the calf. There was no loss of bowel or bladder control. The examination revealed that he moved about somewhat slowly with a slight limp on the right. The veteran was able to stand erect and there was no spasm of the back noted. There was mild tenderness to palpation over the back. Range of motion of the lumbar spine was no more than 10 degrees of flexion secondary to complaints of back pain, and no more than 20 degrees of extension secondary to back pain. He was not asked to heel and toe walk or to squat. Reflexes were 2+ at the knees, right ankle jerk was 1+ with augmentation and left ankle jerk was inconsistently present with augmentation. There was slight subjective decrease sensation to pinprick of the right foot, and he had a palpable pulse in the right foot. The impression was chronic lumbar syndrome - history of injury with fracture of L1. The examiner commented that the examination was somewhat limited by the recent nature of the veteran's coronary artery bypass graft surgery of July 1996. The veteran underwent a VA examination in October 1997. He reported chronic low back pain which varied in severity, and which was exacerbated by bending and lifting. He reported requiring frequent position changes as any prolonged sitting, standing or walking periods caused increased pain. Driving or riding in a car for extended periods caused increased pain. He described intermittent episodes of pain radiating out of the back and into the right leg down to about the level of the calf. He described numbness and tingling actually involving all four extremities. There was no bowel or bladder incontinence noted. The examination revealed that he moved about the room rather slowly, but otherwise with an unremarkable gait pattern. He was able to stand erect and there was no spasm or tenderness of the back noted. Range of motion of the lumbar spine demonstrated 40 degrees of flexion and 25 degrees of extension with pain on motion. On supine straight leg raising exam, there was no evidence of radicular type complaints, but he had back pain with raising of either leg. He performed fair heel-and-to walk and was able to squat and arise again. Reflexes and sensation were intact in the lower extremities. The impression was chronic lumbar syndrome - history of old injury with L1 fracture. The examiner commented that as far as functional loss, it was previously noted that the veteran had difficulty with activities such as bending and lifting, as well as prolonged sitting, standing or walking. Private x-rays, dated in October 1997, showed that lumbosacral spine was intact with no evidence of fractures or subluxations. The veteran testified at a hearing before a hearing officer of the RO in September 1997 and at a hearing before a member of the Board sitting at the RO in August 1999. He asserted that he experiences constant pain in his back. The pain radiated down to his legs and became worse every two to three weeks. He stated that he has muscle spasms. He is uncomfortable when he sits or walks for any length of time. He has difficulty bending over. He testified that about once a year his back will give out and can't straighten up for a period of up to seven days. He was last treated for his back at a medical facility about 10 years ago. He takes over the counter medications. He reported that he last worked 10 years ago as an insurance salesman. He indicated that he was drinking heavily at that time. The veteran has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5295 (1999), and his disability is currently rated as 20 percent disabling. Diagnostic Code 5295 provides the rating criteria for lumbosacral strain. Under this Code provision, the maximum 40 percent rating evaluation is warranted when the lumbosacral strain is severe with listing of the whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. A 20 percent evaluation is appropriate when the lumbosacral strain is accompanied by muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 10 percent evaluation is warranted when the lumbosacral strain is with characteristic pain on motion. A noncompensable evaluation is assigned when the lumbosacral strain is with slight subjective symptoms only. Diagnostic Code 5285 provides for the evaluation of a fracture of the vertebra. When there are residuals of a fracture of vertebra with cord involvement, and the veteran is bedridden, or requiring long leg braces, a 100 percent rating evaluation is appropriate. With lesser involvements the disability is rated for limited motion or nerve paralysis. Where the disability is without cord involvement and there is abnormal mobility requiring neck brace (jury mast), a 60 percent evaluation is appropriate. In other cases, the disability is rated in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body. The regulations note that under ankylosis and limited motion, ratings should not be assigned for more than one segment by reason of involvement of only the first or last vertebrae of an adjacent segment. Diagnostic Code 5292 provides for an evaluation for the limitation of motion of the lumbar spine. Pursuant to this Code provision, where the limitation of motion is severe, a 40 percent evaluation is appropriate. Where the limitation of motion is moderate, a 20 percent evaluation is assigned. Where the limitation of motion is slight, a 10 percent is appropriate. The United States Court of Appeals for Veterans Claims (Court) has held that when a diagnostic code provides for compensation based upon limitation of motion, that the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1998) must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet.App. 202, 205-07 (1995). Regulations define disabilities of the musculoskeletal system as primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (1999). Disabilities of the joints consist of reductions in the normal excursion of movements in different planes. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45 (1999). To summarize, the veteran's statements describing symptoms associated with his disabilities are considered competent evidence. However, these statements must be viewed in conjunction with the medical evidence of record. In this regard, the most recent x-rays, dated in October 1997 showed no abnormaility of the spine. The VA examinations showed no muscle spasms or listing of the spine. There was no loss of lateral spine motion. As such the Board finds the criteria required for severe lumbosacral strain has not been met nor is there current x-ray evidence of a demonstrable vertebral deformity. The December 1996 VA examination showed that the range of motion was 20 degrees of extension and 10 degrees of flexion. However, the examiner indicated that the examination was somewhat limited due to coronary by-pass surgery, which was performed several months earlier. In this regard the VA examination in November 1994 showed flexion to 45 degrees and extension to 10 degrees. Additionally the most recent VA examination showed flexion of 40 degrees and extension to 25 degrees. The Board finds that the limitation of motion of the lumbar spine is not severe pursuant to diagnostic code 5292. Thus, it is the judgment of the Board that the criteria for a rating in excess of 20 percent for the residuals of the compression fracture have not been met, and the preponderance of the evidence is against the claim for an increased rating. The Board also finds that the clinical data which has been assembled in connection with the veteran's claim adequately portrays the extent of functional impairment attributable to the veteran's lumbar spine disability as set forth in the DeLuca case and is consistent with the current 20 percent rating. In rendering this determination, the Board has considered all pertinent aspects of 38 C.F.R. Parts 3 and 4 as required by the Court in Schafrath v. Derwinski, 1 Vet.App. 589 (1991). However, no potentially applicable provision provides a basis for a compensable rating ORDER Entitlement to an increased rating for residuals of a fracture of L1 vertebra is denied. REMAND Initially, the Board finds that the veteran's claims for entitlement to an increased rating evaluations for service connected PTSD and his left wrist are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim that is plausible. Generally, claims for increased evaluations are considered to be well grounded. A claim that a condition has become more severe is well grounded where the condition was previously service connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). Pursuant to 38 U.S.C.A. § 5107(a) (West 1997), the Board is obligated to assist the veteran in the development of his claim. While this case was pending before the Board, additional medical records, including VA outpatient treatment records dated in 1998 and 1999 and June 1999 a letter from the veteran's readjustment therapist pertaining to treatment for his PTSD. The RO, at least in part, has not had the opportunity to review this evidence. These documents indicate that his psychiatric disability may have increased in severity. During the course of the appeal the criteria for rating mental disorders, including PTSD were amended. These amendments became effective on November 7, 1996. The Court has held that, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or permitted the Secretary of Veterans Affairs (Secretary) to do otherwise, and the Secretary did so. Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991). The record reflects that the veteran was furnished both the old and revised rating criteria. Since the most recent VA examination of the left wrist in June 1993, the veteran has received treatment at the VA outpatient clinic on a couple of occasions for left wrist pain. In September 1997 he received an intraarticular injection for left wrist symptoms. The evidence shows that the veteran was awarded SSA in July 1994. However, it appears that the complete medical records on which the decision was based are not on file. The Court has held that in claims for increased ratings, staged ratings may be warranted if the claim involves an original grant of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). In light of the Board's duty to assist the veteran in the development of his claim, it is the Board's opinion that additional development be undertaken prior to further disposition of this matter, to include VA examinations. See Littke v. Derwinski, 1 Vet. App. 90 (1990). Accordingly, the case is hereby REMANDED to the RO for the following actions: 1. The RO should furnish the veteran the appropriate release of information forms in order to obtain copies of all VA and private medical records pertaining to current treatment for his left hand and psychiatric disabilities, which have not been previously submitted. The RO should inform the veteran that he has the opportunity to submit additional evidence, to include current treatment records, and argument in support of his claim 2. The RO should request the VA medical facility in Mobile, Alabama, to furnish copies of any additional treatment records covering the period from April 1999 to the present. 3. The RO should take the necessary action to obtain copies of all of the medical records on which the SSA decision was based. 4. A VA examination by a psychiatrist should be conducted in order to determine the nature and severity of the service connected PTSD. The claims folder and a copy of this Remand are to be furnished to the examiner in conjunction with the examination. All necessary tests and studies deemed necessary should be conducted. The examiner should express an opinion on the extent to which the PTSD affects the veteran's occupational and social functioning. It is requested that the examiner include a Global Assessment of Functioning score (GAF). 5. The veteran should be afforded a VA examination by an orthopedist to determine the nature and severity of the left wrist disability. All indicated special studies, including X-rays, should be accomplished. The left wrist should be examined for degrees of limitation of motion. The examiner should also be asked to note the normal ranges of motion. Additionally, the examiner should be requested to determine whether the left wrist exhibits weakened movement, excess fatigability, or incoordination and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion lost or favorable or unfavorable ankylosis. Further, the examiner should be asked to express an opinion as to the degree to which pain could significantly limit functional ability during flare-ups or when the left wrist is used repeatedly over a period of time. See Deluca v. Brown, 8 Vet. App. 202 (1994). 6. Thereafter, the case should be reviewed by the RO, to include consideration for the old and the revised criteria for rating mental disorders and the Fenderson case. If the decision remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case and an opportunity to respond. The case should thereafter be returned to the Board for further review, as appropriate. No inference should be drawn regarding the final disposition of the claim as a result of this action. 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. ROBERT P. REGAN Member, Board of Veterans' Appeals