BVA9507392 DOCKET NO. 91-43 342 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES Entitlement to service connection for L5-S1 neuropathy, left L5 radiculopathy, right L4-5 disc degeneration, and osteoarthritis of the lumbosacral spine. Entitlement to service connection for functional overlay. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Keyes, Associate Counsel INTRODUCTION The veteran served on active duty from January 1951 to October 1952. This matter comes before the Board of Veterans' Appeals (Board) from a May 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied an increased disability rating for the veteran's service-connected lumbosacral strain disorder. A hearing was held in February 1992 at the Board, in Washington, D.C., before Jan Donsbach, a member of the Board who was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7102(b) (West 1991). In March 1992, the Board remanded the case to obtain additional clinical information. A rating decision in June 1992 awarded a 20 percent disability evaluation for the lumbosacral strain. The veteran indicated that he desired to continue with his appeal of the case in a July 1992 statement. The Board remanded the case again in May 1993 to obtain more clinical information, including private clinical records and VA orthopedic and neurological examinations. Following this development, the RO denied the claim for an increased disability rating in May 1994. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in denying his claim for an increased disability rating for his service-connected lumbosacral disorder, currently rated as 20 percent disabling. Specifically, he contends that peripheral neuropathy, osteoarthritis of the spine with loss of range of motion of the lumbosacral spine, and left L5 radiculopathy, which were noted on VA neurological examination July 1993, and right L4-5 disc degeneration, which was noted on an August 1993 MRI, should be service-connected as secondary to his service-connected lumbosacral strain disorder. Moreover, in a February 1995 statement of his representative, it is noted that the veteran is also service-connected for conversion disorder, that conversion symptoms often suggest neurological disorders, and that the VA neurologist expressed the opinion that there was some functional overlay with regard to the veteran's symptomatology. In light of these findings, the veteran contends, in essence, that the functional overlay should be service connected secondary to the service-connected conversion reaction. 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 evidence warrants entitlement to service connection for L5-S1 neuropathy, right L4-5 disc degeneration, osteoarthritis of the lumbosacral spine, and functional overlay. FINDINGS OF FACT 1. The veteran is service-connected for lumbosacral strain, currently rated as 20 percent disabling, and conversion reaction, currently rated as 10 percent disabling. 2. The veteran is shown to be have L5-S1 neuropathy, left L5 radiculopathy, right L4-5 disc degeneration, and osteoarthritis of the lumbosacral spine which cannot be disassociated from his service-connected lumbosacral strain disorder. 3. The veteran's service-connected conversion disorder is manifested by functional overlay involving the low back and lower extremities. CONCLUSIONS OF LAW 1. An approximate balance of positive and negative evidence in this case raises a reasonable doubt that L5-S1 neuropathy, left L5 radiculopathy, right L4-5 disc degeneration, and osteoarthritis of the lumbosacral spine are proximately due to or the result of the veteran's service-connected lumbosacral strain disorder. 38 U.S.C.A. §§ 1110, 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 3.310 (1994). 2. An approximate balance of positive and negative evidence in this case raises a reasonable doubt that the veteran's service-connected conversion disorder is manifested by functional overlay involving his low back and lower extremities. 38 U.S.C.A. §§ 1110, 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 3.310 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is service-connected for lumbosacral strain, currently rated as 20 percent disabling, and conversion reaction, currently rated as 10 percent disabling. He also has severe peripheral vascular disease and diabetes mellitus which are not service-connected. He has had a below-the-knee amputation of his right leg secondary to vascular changes due to his diabetes. The veteran has a long history of complaints of pain and numbness in his lower extremities. On an April 1992 VA examination, the examiner diagnosed severe peripheral neuropathy secondary to diabetes mellitus. Although there was no evidence of radiculopathy in April 1992, the examiner noted that a radiculopathy was noted following electromyograms and neurological examination in 1981. VA examination reports from August 1981 show diagnoses of L5-S1 neuropathy and L5 radiculopathy. One report showed sensory motor peripheral neuropathy possibly secondary to diabetes. August 1981 nerve conduction velocity and electromyogram tests confirmed a left L5 radiculopathy. The report stated that these findings were compatible with a peripheral neuropathy. The Board remanded this case for the second time in May 1993 with instructions for VA orthopedists and neurologists to determine whether the veteran's complaints of numbness below the waist was related to his service-connected lumbosacral strain disorder. In July 1993, the VA neurologist commented as follows: This is a very complicated case involving multiple factors. He certainly has severe peripheral vascular disease. . . . Certainly his vascular disease may be contributing to his numbness. In addition he has diabetes and almost certainly has diabetic peripheral neuropathy which again is contributing to the numbness in his legs. He has a history of left L5 radiculopathy by EMG criteria, however, currently does not appear clinically to have one. However, this could also be contributing to his feeling of numbness in his legs. I am unable to explain his apparent sensory level and numbness in his right thigh. . . . Certainly if he has a left L5 radiculopathy as documented there could be some component of this which might be related to his back sprain . . . . In addition to this report, a VA orthopedist diagnosed osteoarthritis of the spine with loss of range of motion of the lumbosacral spine in August 1993, and an MRI also conducted in August 1993 revealed findings consistent with right L4-5 and L5-S1 disc degeneration. In light of these findings, the Board concludes that the medical evidence is in equipoise as to whether veteran's left L5-S1 neuropathy, left L5 radiculopathy, right L4-5 disc degeneration, and osteoarthritis of the lumbosacral spine are proximately due to or the result of his service-connected lumbosacral strain disorder. Accordingly, the Board finds that service connection is warranted for these disorders on this basis. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, 3.310 (1994). In addition, the Board concludes that the medical evidence in this case is at least in equipoise as to the question of whether the veteran's service-connected lumbosacral disorder is contributing to his feelings of pain and numbness in his lower extremities, and, as the Board notes in the Remand below, the RO must take this factor into consideration when assigning a disability evaluation. In addition, the Board notes that the VA neurologist in 1993 expressed the opinion that there is some functional overlay with regard to the veteran's symptomatology. The veteran's representative has noted that "some of the most classic conversion symptoms are those that suggest neurological disorders." In this regard, the Board notes that a conversion disorder is defined as "a mental disorder characterized by conversion symptoms [which include] loss or alteration of physical function suggesting physical illness, usually of the sensorimotor system . . . ." Dorland's Illustrated Medical Dictionary 497 (27th ed. 1988). Moreover, the Board notes that upon VA neurological examination in October 1981, the examiner noted that a weakness of left ankle dorsiflexor of unknown cause "could be functional." Given this evidence, the Board finds that the functional overlay is proximately due to or the result of the veteran's service-connected conversion disorder. Accordingly, the Board finds that service connection is warranted for this disorder on that basis. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, 3.310 (1994). ORDER Service connection for L5-S1 neuropathy, left L5 radiculopathy, right L4-5 disc degeneration, and osteoarthritis of the lumbosacral spine is granted. Service connection for functional overlay is granted. REMAND In accordance with the grant of service connection in the decision above, the case is REMANDED to the RO for the following: 1. The RO should schedule the veteran for comprehensive VA psychiatric, orthopedic, and neurological examinations to determine the degree of impairment caused by the veteran's service connected disorders. The examinations are to be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. All indicated or recommended tests are to be conducted. The claims file must be made available to and reviewed by the examiners prior to the requested examinations. All necessary tests should be comducted and the examiners should review the results of all testing prior to completion of their reports. The reports of examination should include a detailed account of all pathology found. The examiners should, to the extent possible, differentiate any findings which are due to diabetes mellitus as opposed to the service-connected back disability and conversion disorder. If there are findings which cannot be disassociated from diabetes and the back condition and conversation disorder, they should be so identified. The examiners are requested to provide complete rationale for all conclusions reached. The examiners should review the pertinent history of the veteran's service-connected disorders including VA examination reports from 1981 and 1993. 2. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the requested examination does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinion requested, the report must be returned for corrective action. 3. In rating the manifestations of the service-connected conversion disorder, the RO should refer to 38 C.F.R. § 4.132, Diagnostic Code 9402, Notes (3) and (4) (1994). If the decision remains unfavorable following completion of these actions, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. No action is required of the veteran until further notice is issued. JAN DONSBACH 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).