Citation Nr: 0006307 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 94-09 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an evaluation in excess of 20 percent for a T12 compression fracture, with anterior wedging and degenerative changes at T11, T12, and L1. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Carole R. Kammel, Associate Counsel INTRODUCTION The veteran served on active duty from February 1979 to February 1981, and from December 1981 to December 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied the veteran's claim for an evaluation in excess of 10 percent for residuals of a T12 compression fracture, with anterior wedging and degenerative changes at T11, T12 and L1. In May 1997, after receiving additional evidence, the RO increased the evaluation for the appellant's T12 compression fracture, with anterior wedging and degenerative changes at T11, T12 and L1, to 20 percent disabling. In doing so, the RO applied the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5285 (1999). As the 10 percent evaluation is less than the maximum available under the applicable diagnostic criteria, the veteran's claim remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). This issue listed on the front page of this decision was remanded by the Board in January 1998 for additional development. That development has been completed and the case has been returned to the Board for final appellate review. In January 1998, the Board also remanded the issue of entitlement to service connection for a psychiatric disorder, to include a panic disorder with depression. In September 1998, the RO granted service connection for a panic disorder with depression. Accordingly, that issue is no longer before the Board. 38 U.S.C.A. § 7104 (West 1991). FINDING OF FACT Residuals of a T12 compression fracture, with anterior wedging and degenerative changes at T11, T12 and L1 are not productive of more than a moderate limitation of dorsal motion and a demonstrable deformity of a vertebral body. CONCLUSION OF LAW The schedular criteria for an evaluation in excess of 20 percent for residuals of a T12 compression fracture, with anterior wedging and degenerative changes at T11, T12, and L1 are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.20, 4.71a, Diagnostic Codes 5285, 5288, 5291 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background An April 1991 attending Physicians Return to work statement reflects that the veteran was found to have been totally incapacitated because of low back strain. The veteran was given moist heat and medication. In a May 1991 report, submitted by William Niedermeier, M.D., of the Quinling Clinic, Madison, Wisconsin, it was indicated that the veteran would be off from work for two weeks. The nature of the disability was not reported. Records dated in May 1991 from Physician's Plus Medical Group, however, note that the appellant had reinjured his back in April 1991. His job entailed sewer cleaning and lifting weights routinely weighing 75-150 pounds. An August 1991 VA examination report reflects that the veteran had been on workman's compensation for the previous five months because of a back strain associated with his employment with a "roto rooter" company. The veteran reported that he had been employed by various employers over the previous five years and that the work involved heavy lifting. The report is silent with respect to any objective findings with regards to the thoracic spine. During a November 1991 VA examination, the examiner indicated that the veteran's history was extremely difficult to obtain as the appellant was very vague in responding to questions. The veteran related that his back had not improved. He indicated that he was employed as an instructor at a roto rooter company. It was noted by the examiner that the veteran took medication for his back. An examination of the spine revealed tenderness over the lower dorsal spine with no evidence of any actual scoliosis. A neurological examination was unremarkable other than muscle spasms and tenderness around the lower dorsal spine. The veteran was able to walk on his toes and heels. A Romberg's sign produced swaying (the veteran indicated that he was going to fall but did not). When the veteran bent forward, he reached out and extended himself towards a chair rather than forward down towards the floor. The veteran was able to bend forward to approximately 80 degrees but would not go any farther because of pain. Extension, lateral motion and rotation movements were normal. The veteran was diagnosed as having old compression fractures at T11-12 with possible transverse and spinous process fractures secondary to a second injury. Records from Meriter Hospital note that in July 1995, the appellant suffered severe injuries as the result of an elevator mishap during which he injured his cervical and lumbar spine, and incurred central disc herniations. Subsequent records show that in April 1996, the veteran underwent lumbar surgeries to include a diskectomy and hemilaminectomies due this work injury. In February 1998, while at Lake Edge Clinic, an examiner noted that the appellant's 1995 injury involved a three floor fall in an elevator, and that he injured his neck during this postservice fall. An April 1997 VA spine examination report reflects that the veteran reported having sustained a T12 compression fracture during service in 1980. He reported that in April 1996, he underwent an L4-5 diskectomy because of back and right leg pain. The veteran continued to complain of a numbness in his anterior thigh and of left buttock pain. The appellant related that he was employed in light custodial work but that he could only work thirty percent. The veteran reported that he had a difficult time sitting up straight, that he could not bend over without experiencing pain and that he had been given a permanent twenty pound lifting restriction. The examiner indicated that he had reviewed the appellant's claims file and that the veteran was very vague with regard to his history of a back injury during service. The examiner noted that while there was reference to a back injury prior to service, X-rays did not clearly diagnosis an acute compression fracture at any point. During the examination, the veteran walked slowly. He had a difficulty time sitting and getting into a supine position. The veteran had forward flexion to 40 degrees, extension to 10 degrees, bilateral side to side bending to 15 degrees, and bilateral rotation to 25 degrees. The examiner noted that pain limited the veteran's motion in all end points. There was no evidence of any spasm. There was an area of decreased sensation of light touch in the anterior right thigh but otherwise a neurological examination was normal. There was no evidence of any fixed abnormalities. Musculature of the back was normal. X-rays of the thoracic and lumbar spine showed anterior wedging and degenerative changes at T11, T12 and L1. A diagnosis of a history of anterior wedging of T11, T12 and L1 was entered. The examiner noted that there was no clear diagnosis of an acute compression fracture at any point and that such findings might have represented Scheuermann's kyphosis. The examiner indicated that the 10 percent rating assigned to the veteran's T12 wedging was appropriate. The examiner concluded that that a portion of the appellant's symptoms were a result of degenerative changes at the thoracolumbar junction and that a majority of his complaints were unrelated to his service-connected injury. It was reported that the veteran had had several post-service injuries to his back and that these were more proximately related to his current problems rather than his service- connected condition. Numerous VA and private medical reports, submitted by Medic East Immediate Care Center, Quinling Clinic, Meriter Hospital, Catholic Charities Diocese of Madison, Physicians Plus Medical Group, Madison Neurosurgical Consultants, S.C., and the Droessler Chiropractic Office, dating from 1981 to 1998, reflect that the veteran was primarily seen for psychiatric complaints, and for cervical, left arm and lumbar spine pain following an elevator mishap at work in July 1995. These reports reflect that the veteran had sustained a T12 fracture during service. However, they are silent with respect to any objective findings relating to the thoracic spine. During a June 1998 VA examination, the examiner reported the veteran's history with respect to his thoracic spine in detail. The veteran complained of pain in two areas in his back, mainly in the mid-back near the thoracolumbar junction but also in the lower lumbar area. The examiner noted that the appellant's back pain was sixty percent of his concern and that the other forty percent was related to pain down his right leg. The veteran also noticed numbness involving the right thigh and pain into the right testicle area. As a result of the veteran's discomfort, he was removed from his employment as a custodian. The examiner reiterated that the bulk of the appellant's complaints were related to the discomfort in the lower lumbar area but that there was some discomfort in the midback area of the thoracolumbar junction with flexion and extension. An examination of the lumbar spine revealed some tenderness to palpation at the T10-T12. There was no evidence of any paraspinous muscle spasm and no step-off deformities. There was a well-healed incision of the lower lumbar spine, which was almost hypersensitive to touch. There was exaggerated tenderness to palpation in the paraspinous musculature with no evidence of spasm. The veteran stood with a slightly exaggerated thoracic kyphosis and a lumbar lordosis He had forward flexion to 25 degrees without discomfort and extension to 5 degrees before he had pain. The veteran had bilateral side bending and rotation to 30 degrees without significant discomfort. The examiner concluded that while the bulk of the appellant's discomfort was located in the lower lumbar area, there was some at the thoracolumbar junction as well. The veteran had more discomfort with forward flexion in the thoracolumbar area than with extension. A strength examination of the lower extremities was 5/5. There was 1+ patellar tendon, 1+ Achilles tendon deep reflexes, bilaterally, with 0 Achilles tendon reflex on the right side. Sensation was intact to light touch of all dermatomes in the lower extremities. There was no clonus elicited with a negative extensor plantar response, bilaterally. X-rays of the thoracic spine showed wedging of the T12 vertebral body at approximately 25-30 percent loss of height anteriorly. The changes appeared to have been chronic and well healed with no change from previous X-rays. It was the examiner's opinion that the bulk of the veteran's complaints were related to his low back pain and radiculopathy, that the low back pathology limited the appellant's functional ability, and that the lumbar pathology was unrelated to his thoracolumbar junction discomfort. A September 1998 report, submitted by the Division of Unemployment Insurance, reflects that the veteran had permanent restrictions because of a work related accident. An October 1998 letter from the Social Security Administration reflects that the veteran was initially denied social security disability benefits. The report indicated that the veteran had sustained an injury to the back as a result of a work related accident in July 1995, and that he underwent surgery on the lower spine in April 1996 for a herniated disc. It was also noted that while the veteran had continued to complain of neck and arm pain since the 1995 accident, an examination showed no significant evidence of any weakness or neurological impairment. Therefore, it was concluded that the veteran was able to perform sedentary work. In a November 1998 addendum to the June 1998 VA examination, the examiner indicated that he had reviewed the veteran's claims file prior to the examination. The examiner noted in extensive detail the veteran's history with respect to his spine. An examination of the thoracic spine revealed mild kyphosis but no scoliosis. The thoracic spine was nontender until the thoracolumbar junction was palpated, which revealed mild to moderate tenderness. The veteran had 90 degrees of forward flexion, with mild discomfort. The majority of flexion was in the thoracic spine,. Extension was to 20 degrees, and there was 30 degrees of lateral bending with the majority of the movement located primarily in the thoracic spine. Several Waddle's signs were positive, to include pain with axial pressure and pain with rotation. A straight leg raise test was positive in the supine position but negative in the seated position. A neurological examination revealed poor patient effort and nonreproducible results when tested twice during the examination. At times, the appellant demonstrated 4/5 strength with ankle dorsiflexion, ankle plantar flexion and extensor hallucis longus function, and at other times, he had 5/5 strength. The veteran had poor effort with flexion and extension of the knee. He had subjectively decreased sensation in sporadic spots, to include a small area over the lateral aspect of the left ankle, a small area over the lateral aspect of the right thigh and a large area over the anterior shin throughout the right lower leg. The veteran also subjectively complained of a constant tingling in his left foot. There were 1+ patellar tendon and a 1+Achilles tendon deep reflexes, bilaterally. X-rays of the thoracic spine in the anterior-posterior and lateral views showed wedging of T12 and L1 measuring approximately twenty percent at T12 and ten percent at L1. There was no evidence of any significant focal kyphosis. There were degenerative changes at T11-12 and T12-L1, which were unchanged from pervious X- rays. It was the impression of the examiner, in pertinent part, that the veteran's service-connected T12 compression fracture produced little disability when compared to his lumbar spine condition, and that there was a mild level of constant pain and good motion. Voluminous VA and private medical records, submitted by the Department of Health and Human Services, Social Security Administration, Baltimore, MD, dating from 1986 to 1999, reflect that the veteran was seen primarily for his low back and cervical spine because of an elevator mishap at work in July 1995. A report, dated in September 1996, reflects that the veteran experienced mid-thoracic stiffness and tightening with aching at T10-11. A June 1998 medical report reflects that joint fixation was found to have been acute at T8-10 and that there was intrascapular muscle splinting with joint tenderness and fixation at T5. II. Analysis As a preliminary matter, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims (Court) has held that an allegation that a service- connected disability has increased in severity is sufficient to render the claim well grounded. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board is also satisfied that all relevant facts needed to adjudicate a schedular evaluation of the veteran's service-connected disorder have been properly developed, and that no further assistance is required on that issue to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). 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 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (1999). 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). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. When, after careful consideration of all the evidence of record, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3 (1999). According to Diagnostic Code 5285, where a veteran has residuals of a vertebrae fracture, but there is no spinal cord involvement, he is not bedridden, and does not require long leg braces or a neck brace, the disability is evaluated in accordance with the criteria provided in the regulations with respect to limited motion of the spine or muscle spasm. According to this code, residuals of a fractured vertebrae with definite limited motion or muscle spasm, a 10 percent rating is added for demonstrable deformity of vertebral body. Further, 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. 38 C.F.R. § 4.71a, Diagnostic Code 5285, Note. According to Diagnostic Code 5288, a 20 percent evaluation is warranted for favorable ankylosis of the dorsal spine. Under Diagnostic Code 5291, a moderate or severe limitation of motion of the dorsal spine warrants a 10 percent evaluation. 38 C.F.R. § 4.71a. In the present case, the Board is of the opinion that an increased evaluation for the veteran's residuals of a T12 compression fracture with anterior wedging and degenerative changes at T11, T12 and L1 is not warranted. In this respect, there is no evidence of spinal cord involvement associated with his dorsal injury. He is not bedridden as a result of his service connected disorder, and the condition does not require the use of a long leg brace or a neck brace. There is, however, evidence which shows that the veteran has a limited range of motion in the dorsal spine and that he suffers from a demonstrable vertebral deformity. Accordingly, the Board finds that Diagnostic Code 5291, and the "demonstrable deformity" provisions of Diagnostic Code 5285, are the proper provisions to be applied to evaluate the veteran's service-connected dorsal spine disability. The examination reports have indicated that the veteran's dorsal range of motion was moderate in severity. Under Diagnostic Code 5291, this level of limitation of motion is evaluated as 10 percent disabling. Because the evidence also shows that the veteran has a related demonstrable vertebral deformity of the thoracic spine he is entitled to an additional 10 percent evaluation under the "demonstrable deformity" provisions of Diagnostic Code 5285. Adding these two evaluations together results in a total evaluation of 20 percent, which is the veteran's current rating. However, these provisions do not support an increased evaluation. In this respect, the 10 percent rating is the maximum rating available for both limitation of dorsal spine motion and demonstrable deformity of a vertebral body. Further, an increased evaluation is not warranted under Diagnostic Code 5288, as there is no medical evidence of thoracic ankylosis. Based on the foregoing, the preponderance of the evidence is against an increased evaluation for the veteran's residuals of a T12 compression fracture with anterior wedging and degenerative changes at T11, T12 and L1. In denying an increased rating for a T12 compression fracture, with anterior wedging and degenerative changes at T11, T12 and L1, the Board considered the provisions of 38 C.F.R. §§ 4.40, 4.45 (1999) as interpreted in DeLuca v. Brown, 8 Vet. App. 202 (1995). Significantly, however, an increased rating under these regulations is not in order as there is no competent evidence of such symptomatology as disuse atrophy or incoordination due to the service connected disorder as would be expected to be associated with painful pathology warranting a rating higher than that currently assigned. In this regard, the VA examiner indicated in November 1998 that the veteran's T12 compression fracture produced little disability when compared to his nonservice connected lumbar spine condition, and that there was no more than a mild level of constant pain with the appellant able to demonstrate good motion. Accordingly, these regulations do not provide a basis for an increased rating. Finally, in reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An increased evaluation for residuals of a T12 compression fracture with anterior wedging and degenerative changes at T11, T12 and L1 is denied. DEREK R. BROWN Member, Board of Veterans' Appeals