BVA9504269 DOCKET NO. 93-11 010 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for herniated nucleus pulposus at L4-L5. 2. Entitlement to an increased rating for low back strain, currently rated as 10 percent disabling. 3. Entitlement to a convalescent rating under the provisions of 38 C.F.R. § 4.30. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Associate Counsel INTRODUCTION The veteran served on active duty from March 1974 to February 1976. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse rating action by the Louisville, Kentucky, Regional Office (hereinafter RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the herniated nucleus pulposus at L4-L5 diagnosed in September 1991 should be considered to be part of the service connected low back disability because he has had disc "problems" ever since his period of active duty. Thus, he essentially argues that the currently assigned rating for his low back strain should be increased to 50 percent so as to include disability caused by his herniated nucleus pulposus. Because he feels that the herniated nucleus pulposus should be considered to be part of the service connected disability, he contends that he is entitled to a temporary 100 percent rating for convalescence under the provisions of 38 C.F.R. § 4.30 as a result of the diskectomy performed in October 1991. 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 veteran's claims for service connection for herniated nucleus pulposus and an increased rating for low back strain. It is also the decision of the Board that the veteran's claim for a temporary total rating for convalescence under the provisions of 38 C.F.R. § 4.30 is not well grounded. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. There is no objective clinical evidence of record showing an etiologic relationship between in-service pathology and the herniated nucleus pulposus at L4-L5 shown in September 1991. 3. There is no objective clinical evidence of record showing an etiologic relationship between the service-connected low back strain and the herniated nucleus pulposus at L4-L5. 4. No more than slight limitation of motion of the lumbar spine caused by the service-connected low back strain is shown. 5. No muscle spasms or loss of lateral spine motion caused by the service-connected low back strain is shown. 6. The appellant has not submitted a plausible claim for benefits under 38 C.F.R. § 4.30 for convalescence resulting from the October 1991 diskectomy because that procedure was not performed to alleviate symptoms of a service connected disability. CONCLUSIONS OF LAW 1. Herniated nucleus pulposus at L4-L5 was not incurred in or aggravated by service and was not the proximate result of the service connected low back strain. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.310 (1994). 2. The criteria for a rating in excess of 10 percent for low back strain are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DC) 5292, 5295 (1994). 3. A well grounded claim for benefits under 38 C.F.R. 4.30 has not been presented. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 4.30 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran has presented sufficient evidence to conclude that his claims for service connection for herniated nucleus pulposus and an increased rating for low back strain are "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled as there is no indication that there are other records available that would be pertinent to the veteran's appeal. In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). I. Entitlement to service connection for herniated nucleus pulposus at L4-L5. Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. For the showing of a 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). Service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The following is a summary of the relevant clinical evidence of record. During service in January 1976, the veteran reported to the clinic with complaints of low back pain that he said was caused by lifting heavy equipment. The impression was low back strain and the treatment consisted of the application of an analgesic balm. The veteran applied for service connection for a "bad back" in March 1976, shortly after separation from service. A VA examination conducted in May 1976 included a negative X-ray of the lumbar and dorsal spines. Shown upon examination was a postural slump of the dorsal vertebrae, a slight spasm of the paravertebral muscles of the dorsal spine, and forward flexion of the lumbar spine limited to 75 degrees, which was felt by the examiner to be marked limitation of motion given the veteran's age. No radiating pain associated with the veteran's back was reported and the diagnosis was low back strain. Based on the evidence summarized above, a June 1976 rating decision granted service connection for low back strain and assigned a 20 percent disability rating. A VA examination completed in March 1979 included another negative X-ray of the lumbosacral spine. There was no limitation of back motion and the diagnosis was low back strain by history with minimal to no physical abnormalities. The disability rating for the service connected back strain was accordingly lowered to a noncompensable rating. A report from a private physician dated in December 1981 indicated that the X-rays of the lumbar spine were negative except for a 5 degree congenital scoliosis. The diagnoses included back strain and "consider" degenerative disc disease. Another VA examination conducted in March 1982 again included a negative X-ray. Lumbar flexion was limited to 85 degrees and a neurological examination showed a moderately positive Lasegue's test in the right leg. The neurological diagnosis was possible mild right sciatic neuritis of unknown etiology. As a result of these findings, the disability rating for the veteran's service connected low back strain was increased to 10 percent disabling by an April 1982 rating decision. This rating has been continued to the present time. A March 1984 VA examination again included a negative X-ray and it was indicated that the veteran only had "minimal" residuals of lumbar strain. Similarly, a VA examination completed in August 1985 included a negative X-ray of the lumbar spine and the physical examination of the back was described as "normal." A June 1991 VA outpatient record showed the veteran reporting a three week history of back pain radiating down the right hip and right leg. A myelogram performed in September 1991 showed herniated nucleus pulposus at L4-L5 and the veteran underwent a bilateral diskectomy at L4-L5 at a VA medical facility in October 1991. By November 1991, the veteran was said to be "doing well" without any lower extremity pain or numbness. The veteran was told to refrain from heavy labor until January 1992. A report from a July 1992 VA examination showed the veteran complaining about persistent low back pain and right leg numbness. He was observed to walk stiffly with a limp to the right. Active ranges of motion of the lumbar spine were recorded as 35 degrees of flexion, 10 degrees of extension, 10 degrees of lateral flexion to each side and 15 degrees of rotation to each side. The straight leg raising test was negative and the deep tendon reflexes were active. An X-ray showed degenerative changes at L4, L5 and S1. The diagnoses were low back strain with degenerative changes, status post diskectomy at L4-L5 and history of herniated nucleus pulposus at L4-L5. In order to clarify the nature of the veteran's disability, an opinion from a VA medical rating specialist was obtained by the RO in November 1992. The physician who reviewed the clinical evidence contained in the claims file concluded that "[s]ince the initial [X]-rays of the lumbar spine for the low back strain were negative, it is unlikely that the low back strain exerted a causal effect on the herniated nucleus pulposus, which occurred 15 years later." This physician also concluded that "[s]ince the initial [X]-rays for low back strain were negative for any bone involvement, the arthritis [shown on the July 1992 X-rays] was probably secondary to the trauma of the disc surgery." With regard to the cause of the limitation of lumbar spine motion shown on the July 1992 VA examination, the VA physician/medical rating specialist stated that "[s]ince the degenerative arthritic changes are shown to be secondary to the disc surgery, this would result in decreased range of motion of the lumbar spine rather than the low back strain." The physician concluded by stating that "[l]umbosacral strain involving the vertebral facets, also known as a mechanical back, on rare occasions can cause a herniated nucleus pulposus. If purely muscle type strain, then association with herniated nucleus pulposus would be unlikely." Applying the relevant laws and regulations to the evidence summarized above, the Board concludes that the weight of the "negative" evidence of record, principally the November 1992 opinion from the medical rating specialist, is greater than the weight of the "positive" evidence of record, which is limited to the subjective contentions of the veteran and his representative. Accordingly, under Gilbert, 1 Vet. App. at 49, the veteran's claim for service connection for herniated nucleus pulposus must be denied. The Board notes that it was not until September 1991, over 15 years after separation from service, that the herniated nucleus pulposus at L4-L5 was shown. Every X-ray report and interpretation of record before that time was negative and the clinical evidence before that time showed no definitive evidence of herniated nucleus pulposus. While the veteran essentially contends that his back symptoms were the result of herniated nucleus pulposus that existed ever since service, such lay evidence as to medical causation is of insufficient probative value to equate with the negative objective clinical evidence before 1991 and the findings of the VA medical rating specialist, who is a trained physician. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). Therefore, service connection cannot be established for herniated nucleus pulposus on a "direct basis" under 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. There is no evidence of record that the veteran's lumbosacral strain involved the vertebral facets, and there is no competent, objective, "positive" evidence of record to equate with the conclusion of the medical rating specialist that a causal link between the service connected low back strain and the herniated nucleus pulposus is "unlikely." Accordingly, service connection for herniated nucleus pulposus on a "secondary" basis is also not warranted. 38 C.F.R. § 3.310. As there is no objective evidence to equate with the conclusion of the medical rating specialist that the arthritis first shown in 1992 was probably secondary to the disc surgery instead of the service-connected low back strain, service connection for arthritis is also not warranted. II. Increased rating for low back strain. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Slight limitation of lumbar spine motion warrants a 10 percent disability rating. Moderate limitation of lumbar spine motion warrants a 20 percent disability rating. 38 C.F.R. § 4.71a, DC 5292. Lumbosacral strain manifested by characteristic pain on motion warrants a 10 percent disability rating. Lumbosacral strain manifested by muscle spasm on extreme forward bending or a loss of lateral spine motion in the standing position warrants a 20 percent disability rating. 38 C.F.R. § 4.71a, DC 5295. The history of the service connected low back strain was summarized in the first section of this decision. The Board concludes that the weight of the evidence of record suggests that the majority of any current low back symptomatology is related to the veteran's herniated nucleus pulposus at L4-L5 and the diskectomy accomplished in October 1991, rather than the service- connected lumbosacral strain. This was essentially the conclusion of the VA physician/medical rating specialist, who concluded in November 1992 that the limitation of motion shown at the July 1992 VA examination was the result of degenerative arthritic changes associated with the October 1991 surgery rather than the service-connected low back strain. The veteran has presented no objective evidence that would place this conclusion in question, and the Board notes that the report from the last VA examination completed before the herniated nucleus pulposus were shown in 1991 showed essentially a normal back. (See report from August 1985 VA examination). Thus, the Board concludes that a 20 percent rating for the veteran's low back strain is not warranted under DC 5292 or DC 5295. 38 C.F.R. § 3.321(b)(1) provides that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service-connected disabilities, an extraschedular evaluation will be assigned. However, neither frequent hospitalization nor marked interference with employment due to the veteran's service-connected low back strain is demonstrated. Therefore, an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) is not warranted. III. Entitlement to benefits under 38 C.F.R. § 4.30. A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). There is no further duty to assist the veteran if a well-grounded claim is not submitted. Tirpak v. Derwinski, 2 Vet.App. 609 (1992); Murphy v. Derwinski, 1 Vet.App. 78 (1990). A total disability rating is for assignment when it is established by report at hospital discharge or outpatient release that treatment of a service connected disability resulted in surgery necessitating at least one month of convalescence, surgery with severe postoperative residuals including stumps of recent amputations, or immobilization by cast of one major joint or more. Entitlement to one, two or three month periods of convalescent ratings from the first day of the month following such hospital discharge or outpatient release may be granted. 38 C.F.R. § 4.30. The veteran contends that he is entitled to benefits provided by 38 C.F.R. § 4.30 for a period of convalescence following the October 1991 diskectomy. However, as the Board determined in the first part of this decision that service connection is not warranted for the disability, herniated nucleus pulposus, that necessitated the October 1991 surgery, the veteran is not entitled to benefits under this regulation as a matter of law. See Sabonis v. Brown, 6 Vet.App. 426 (1994). Accordingly, the Board concludes that the claim for benefits under the provisions of 38 C.F.R. § 4.30 is not well grounded. ORDER Entitlement to service connection for herniated nucleus pulposus at L4-L5 is denied. Entitlement to an increased rating for low back strain, currently rated as 10 percent disabling, is denied. The claim for a convalescent rating under the provisions of 38 C.F.R. § 4.30 is dismissed. (CONTINUED ON NEXT PAGE) HOLLY E. MOEHLMANN 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.