BVA9501466 DOCKET NO. 92-04 201 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a lumbar disorder. 2. Entitlement to an increased rating for thoracic kyphoscoliosis at T7-T8 with limitation of motion, currently evaluated as 10 percent disabling. 3. Entitlement to an increased (compensable) rating for cervical strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William H. Hickman, Associate Counsel INTRODUCTION The veteran had active duty military service from May 1984 to March 1990. The matters of increased ratings came before the Board of Veterans' Appeals (Board) on appeal from a January 1991 rating decision of the Department of Veterans Affairs (VA) Chicago, Illinois, Regional Office (RO). In a Remand dated in May 1993 the Board assumed jurisdiction of the issue of service connection for a lumbar disorder and returned all issues to the RO for further development. The case is now before the Board for appellate review. Inasmuch as the Board is remanding herein the issues of increased ratings to the RO for further development, the sections in the decision labeled "Contentions of Appellant on Appeal", "Decision of the Board", "Findings of Fact", "Conclusion of Law", "Reasons and Bases for Findings and Conclusion", and "Order" will only address the issue of service connection for a lumbar disorder. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that he injured his lower back during a motor vehicle accident in service, and that since that time he has had chronic low back symptomatology and, therefore, a grant of service connection for a lumbar disorder is warranted. 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 evidentiary record supports the veteran's claim for service connection for a lumbar disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran sustained trauma to his back in service in October 1989 as the result of a motor vehicle accident. 3. The evidentiary record demonstrates that the veteran has chronic lumbosacral muscle strain as the result of the motor vehicle accident that occurred in service. CONCLUSION OF LAW Chronic lumbosacral muscle strain was incurred in service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(b) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim for service connection for a lumbar disorder is well grounded; that is, it is a claim which is plausible and capable of substantiation. With respect to this claim, all relevant facts have been properly developed and no further assistance to the veteran, to include additional VA examinations, is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). Under the applicable law and regulations, service connection may be established for a chronic disability resulting from personal injury suffered or disease contracted during peacetime service in the line of duty. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(b) (1993). Review of the service medical records reveals that in October 1989 the veteran was admitted to a service medical facility as the result of injuries sustained in a motor vehicle accident. Initial diagnosis was hyperextension injury to the cervical spine. The following week the veteran was again seen for complaints of neck and back pain. In November 1989 he had complaints of low back pain and was diagnosed as having the same. The low back pain was said to have persisted since the motor vehicle accident. Between November 1989 and March 1990 the service medical records reflect continuing complaints of, and treatment for, back pain At time of service separation the veteran complained of back pain. He was referred to a service orthopedic clinic for evaluation. The orthopedic clinic's evaluation apparently is not part of the record. In August 1990 the veteran filed a claim with the VA for service connection for a back injury. In October 1990 he submitted into evidence medical records dated in May and September 1990. It is not clear from the record who prepared the May 1990 records. They do reflect that the lumbar spine exhibited pain on all ranges of motion, and had restricted range of motion on extension and side to side bending. The medical records dated in September 1990 include the report of radiographic studies conducted by Hamilton Memorial Hospital. These indicate that studies of the lumbar spine were unremarkable and that the spine had normal vertebral alignment. In September 1990 the veteran underwent a VA examination. He complained of sharp pain in the middle of his back. Range of motion for the lumbar spine was reported as flexion to 30 degrees, extension to 10 degrees, lateral flexion to 10 degrees, and rotation to 5 degrees. There were diagnoses entered with respect to the cervical and thoracic spines, but none with respect to the lumbar spine. In October 1990 at a VA facility the veteran underwent a three phase bone scan of the thoracolumbar spine. This was negative for any lumbar spine disorder. An RO rating decision dated in January 1991 granted the veteran service connection for disorders of the thoracic and cervical spines. Service connection for a disorder of the lumbar spine was not granted. The veteran appealed this denial of service connection and the case made its way to the Board which, in a decision dated in May 1993, remanded the case to the RO for further development to include another VA examination of the lumbar spine. The Board asked the examiners to express an opinion as to whether any current lumbar pathology was related (etiologically) to the trauma sustained by the veteran in the motor vehicle accident in service. In July 1993 the veteran submitted into evidence medical records from Drs. Strickland and Hill. The record from Dr. Strickland, dated in November 1991, does not refer specifically to any lumbar disorder. It does reflect a diagnosis of a compression fracture between T6-T8 and a statement that (the veteran's) disability is due to painful range of motion (the back's) due to a motor vehicle accident. The records from Dr. Hill reflect treatment of the veteran between May 1990 and July 1992 for back and neck pain. These records reflect that some of the veteran's complaints are for recurring low back pain and pain radiating down the left leg along with occasional numbness therein, and that the veteran complained of and received treatment for muscle spasm in the back. The veteran underwent two VA examinations in December 1993. The first examination reported that range of motion for the thoracolumbar spine was good. This examination was not productive of any diagnoses relating to the lumbar spine. At the time of the second examination the veteran complained of experiencing back pain ever since the motor vehicle accident in service, and of currently having intermittent pain radiating down the left leg. On physical examination palpation of the lumbar spine was productive of a finding of tenderness. Straight leg raising was negative for pain down the legs, but at 70 degrees was said to induce pain in the lower back. Pertinent diagnosis was chronic muscle strain in the paraspinal muscles of the lumbar spine. The examiner stated that it was not possible to state with one hundred percent accuracy whether the veteran's difficulties were related to the car accident (in service), but that the severity of the accident and the timing of the veteran's complaints in relation to the accident suggested that a large percentage of the problems the veteran was experiencing were related to the accident. The Board views the aforecited evidentiary record as demonstrating the existence of chronic low back symptomatology between the time of the in service motor vehicle accident and the date of the most current medical evidence of record, that is, December 1993. This evidentiary record reflects a diagnosis of low back pain in the month following the accident, treatment for symptoms stemming from the accident, to include the symptoms associated with the low back, between May 1990 and July 1992 (the records from Dr. Hill), and a diagnosis on the most current medical evidence of record of chronic muscle strain to the paraspinal muscles of the lumbar spine (the VA examination dated in December 1993). This establishes the required chronicity of the claimed disorder. 38 C.F.R. § 3.303(b) (1993). Furthermore, a VA physician has given an opinion to the effect that the current symptomatology is consistent with the medical history since the accident. This establishes, in our view, that the evidentiary record is predominantly in favor of the veteran as to the question of whether the etiology of the lumbar pathology is related to service. The veteran is, therefore, entitled to service connection for chronic lumbar muscle strain. 38 U.S.C.A. § 1131 (West 1991). ORDER Service connection for lumbar muscle strain is granted. REMAND In order to properly develop the evidentiary record for purposes of rating the veteran's service-connected disorders, the Board, in its Remand of May 1993, requested, in part, that the VA examinations undertaken on the veteran report the ranges of cervical, thoracic, and lumbar spinal motion in degrees. Additionally, the Board requested that all necessary testing to include radiographic studies be accomplished. A review of the two VA examinations undertaken by the RO in December 1993 does not indicate that the results contain ranges of spinal motion in degrees, or that x-ray studies were accomplished on the cervical and lumbar spines (X ray studies were performed on the thoracic spine). Therefore, the reports of these VA examinations are not adequate for rating purposes. Additionally, the record reflects that the VA examinations accomplished in December 1993 referred to the fact that the veteran was to be evaluated in January 1994 by a VA orthopedic clinic for the purpose of determining whether or not back surgery would be required. Such evidence is not part of the record, yet it is pertinent for purposes of rating the degree of disability, if any, of the veteran's service-connected spinal disorders. Therefore, the Board is of the view that further development of the evidentiary record is required Accordingly, the case is REMANDED for the following actions: 1. The RO should inquire of the veteran if he has received medical treatment at either VA or other medical facilities for any of the service-connected spinal disorders since December 1993. If so, the RO, after obtaining the necessary information and making the necessary arrangements, should associate with the claims folder those medical records not already of record. 2. Subsequently, the veteran should be scheduled for VA examinations of the cervical, thoracic, and lumbar spines by an orthopedist and neurologist to determine the nature and extent of the pathology present, if any, in each spine or spinal muscles, and in particular to determine if any neurologic abnormality is present as a result of the service-connected disorders. X-ray studies of each spine should be accomplished as well any other necessary testing. The examiners should review the results of all testing prior to completion of their reports. The physicians must record all ranges of motion for each spine in degrees, and pay special attention to the presence or absence of pain especially on motion and any weakness or instability. The reports of examination should include detailed accounts of all pathology present. The claims folder and a copy of this remand must be made available to and reviewed by the examiners prior to their examination. 3. Following completion of the above actions, the RO should review the examination reports and determine if they are adequate for rating purposes and in compliance with this REMAND. Special attention should be given to insuring that all ranges of motion have been accurately reported and that complete x-ray reports have been furnished. If not, the reports should be returned for corrective action. 4. Subsequently, the RO should assign a rating for the veteran's service-connected lumbar muscle strain, and readjudicate the veteran's claims for increased ratings for the service-connected cervical and thoracic spines. For any claim which remains denied, the veteran and his representative should be issued a supplemental statement of the case and be given the reasonable opportunity to respond thereto. Additionally, the veteran should be given the opportunity to file a notice of disagreement as to any rating assigned for the lumbar muscle strain, and a chance to include the issue of a higher rating for lumbar muscle strain as part of his current appeal if it is the veteran's desire to do so. The case should then be returned to the Board for further appellate review. The purpose of this REMAND is to further develop the evidence and afford the appellant due process of law. By this REMAND the Board intimates no opinion, either factual or legal, as to the ultimate disposition of the issues on appeal. No action is required by the veteran until he receives further notice from the RO. 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) (1993).