Citation Nr: 0003861 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 94-16 871 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to an effective date prior than August 11, 1992, for the assignment of a compensable evaluation for degenerative changes of the lumbar spine. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P.B. Werdal, Counsel INTRODUCTION The veteran served on active duty from January 1964 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) pursuant to a November 1999 decision of the United States Court of Appeals for Veterans Claims (Court) reversing and remanding a December 1997 Board decision that concluded that clear and unmistakable error (CUE) was committed in a 1969 Department of Veterans Affairs (VA) Regional Office (RO) decision that granted service connection for a lumbar spine disability, but rated it noncompensably disabling. In its December 1997 decision, the Board concluded that the disability should have been rated 10 percent disabling, effective November 15, 1968, and that a disability rating of more than 10 percent was not warranted based on the evidence of record at the time of the 1969 rating decision. In that same decision, the Board remanded the veteran's claim of entitlement to the disability rating of more than 20 percent that was in effect effective August 1992; the Court's November 1999 decision did not disturb the Board's decision regarding that remanded claim. In the rating decision dated June 12, 1998, the regional office increased the disability evaluation to 40 percent, effective August 11, 1992. In a statement dated June 22, 1998, the veteran declared that he was satisfied with that disposition. Accordingly, that issue is no longer on appeal. FINDINGS OF FACT 1. All available relevant evidence necessary for an equitable disposition of the appeal has been obtained by the RO. 2. Service medical records reflect complaints of back pain from March 1968 until the veteran's discharge from service, findings of pain with all extremes of spine motion, and limited motion. 3. In October 1968, a Physical Evaluation Board determined that the veteran was unfit for duty because of permanent disability, characterized as a herniated nucleus pulposus at L5, manifested by recurrent attacks of low back pain with radiation into the posterior aspect of the right leg and into the foot, requiring hospitalization, moderate. 4. Upon VA examination in January 1969, the veteran complained of intermittent episodes of lumbar spine pain, radiating down the lateral posterior aspect of the right leg. 5. In a February 1969 unappealed rating decision, the RO granted service connection for a history of a herniated nucleus pulposus at L5-S1, evaluated as noncompensably disabling. 6. The Court, in November 1999, directed the Board to grant a disability rating of 20 percent, effective November 15, 1968, for the veteran's service-connected degenerative changes of the lumbar spine. CONCLUSION OF LAW The February 1969 rating decision contained clear and unmistakable error, and a retroactive disability evaluation of 20 percent, effective from November 15, 1968, is warranted for degenerative changes of the lumbar spine, formerly characterized as a history of a herniated nucleus pulposus at L5-S1. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.105(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background Service medical records reveal that the veteran complained of a 2-year history of intermittent aching back pain in March 1968. Examination revealed a mild paravertebral muscle spasm. Several days later, he reported that his low back pain had gradually increased, radiating and extending into the right leg and ankle. He stated that his gradually worsening symptoms were aggravated by prolonged standing, bending, and twisting of the trunk. Examination revealed limited back motion, tenderness of the left paravertebral lumbar musculature, and slightly positive leg raising on the right. Upon hospitalization later that month, the veteran denied any numbness, tingling, weakness, or paralysis. Upon examination in May 1968, pain was observed with all extremes of spine motion. Flexion was limited to 80 degrees. Upon hospitalization in August 1968, the veteran complained of back and right leg pain. Examination revealed no paraspinous spasm, no spine tenderness, and no sciatic nerve tenderness. Negative straight leg raising was observed bilaterally, but there was pain on bending the trunk to touch the toes. There was no motor or sensory deficit. X-rays revealed a congenital fusion of the bodies of L4 and L5. Upon hospitalization discharge, a herniated nucleus pulposus at L5, treated and improved, was diagnosed. It was noted that the veteran's disability corresponded to VA Diagnostic Code 5293, intervertebral disc syndrome, moderate. Upon Physical Evaluation Board examination in October 1968, it was noted that, since March 1968, the veteran had experienced back pain and right leg pain whenever indulging in physical activity. The Physical Evaluation Board determined that the veteran was unfit because of permanent disability, characterized as a herniated nucleus pulposus at L5, manifested by recurrent attacks of low back pain with radiation into the posterior aspect of the right leg and into the foot, requiring hospitalization, moderate. A VA general physical examination in January 1969 yielded results within normal limits. Upon VA orthopedic examination, the veteran complained of intermittent episodes of lumbar spine pain, radiating down the lateral posterior aspect of the right leg. Examination revealed no limitation of motion of the leg. Straight leg raising was negative. There was no evidence of paravertebral muscle spasm. There was no muscle weakness. Sensation was intact with regard to the legs bilaterally. The reflexes were normal, including ankle jerks and knee jerks. The extensor hallucis longus muscle power was within normal limits bilaterally. The impression was of a herniated nucleus pulposus, L5-S1, by history, documented in service, with symptoms worsened with heavy work. In addition, it was noted that a congenital fusion of the L4-5 vertebral bodies had been described during the veteran's period of active service. X-rays of the lumbar spine revealed a loss of IV disc space at the L4-5 level. It was noted that there was an appearance of a congenital failure of segmentation of L4-5. It was observed that the L5-S1 interspace appeared normal. The impression was of a congenital failure of segmentation, partial, of L4-5. In a February 1969 rating decision, the RO granted service connection for a history of a herniated nucleus pulposus at L5-S1. A noncompensable evaluation was assigned under Diagnostic Code 5293, effective from November 15, 1968. The RO noted that a VA general physical examination had yielded results within normal limits, but that the veteran had complained of intermittent episodes of pain in the lumbar spine that radiated down the lateral posterior aspect of the right leg upon orthopedic examination. Service connection was denied for a congenital fusion at L4-5, on the basis that it was a constitutional or developmental abnormality and was not a disability under the law. In a statement received by the RO on August 11, 1992, the veteran reported that he was experiencing recurring service- connected medical problems. Subsequently, private medical records were associated with the claims file, and the veteran was afforded a VA examination. The private medical records include the August 1988 report of a magnetic resonance imaging scan and the January 1993 letter from a private physician who reported that he had evaluated the veteran on August 23, 1988 and August 25, 1992. In a July 1993 rating decision, the RO assigned a 20 percent evaluation for degenerative changes of the lumbar spine, with marked paravertebral muscle spasm (formerly rated as a history of a herniated nucleus pulposus at L5-S1), effective from August 11, 1992. In December 1997 the Board issued a decision in which it determined the 1969 decision was based on CUE, and granted an earlier effective date for a compensable evaluation, namely, a 10 percent rating, effective November 15, 1968, for the veteran's lumbar spine disability. That decision was appealed to Court, which reversed the Board's decision, and remanded the appeal to the Board with directions that the Board issue a decision granting a disability rating of 20 percent, effective November 15, 1968. II. Pertinent Law and Regulations Under 38 C.F.R. § 3.105(a), previous determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed and amended. The Court has propounded the following three-part test to determine whether clear and unmistakable error is present in a prior determination: (1) Either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made;" and (3) a determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) en banc). A finding of clear and unmistakable error requires that error, otherwise prejudicial, must appear undebatably. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). Under the rating criteria in effect at the time of the veteran's discharge on November 14, 1968, a 60 percent evaluation was warranted for pronounced intervertebral disc syndrome with persistent sciatic neuritis with characteristic pain and demonstrable muscle spasm, absent tendo achillis reflex, or other nerve pathology appropriate to the site of the diseased disc, with little intermittent relief. A 40 percent evaluation was warranted for severe intervertebral disc syndrome with recurring attacks and intermittent relief. A 20 percent evaluation was warranted for moderate intervertebral disc syndrome with recurring attacks. A 10 percent evaluation was warranted for mild intervertebral disc syndrome. A noncompensable evaluation was warranted for postoperative, cured intervertebral disc syndrome. 38 C.F.R. § 4.71a, Diagnostic Code 5293. III. Analysis When the RO assigned a noncompensable evaluation in its February 1969 rating decision, it was noted that a VA general physical examination had yielded results within normal limits. The service medical records and the report of the veteran's January 1969 VA examination constituted the only medical evidence of the disability at that time. Service medical records reflect complaints of back pain from March 1968 until the veteran's discharge from service. Upon examination in May 1968, pain was observed with all extremes of spine motion, and flexion was limited to 80 degrees. In October 1968, a Physical Evaluation Board determined that the veteran was unfit because of permanent disability, characterized as a herniated nucleus pulposus at L5, manifested by recurrent attacks of low back pain with radiation into the posterior aspect of the right leg and into the foot, requiring hospitalization, moderate. While there was no evidence of paravertebral muscle spasm or muscle weakness upon VA examination in January 1969, it was noted that the veteran complained of intermittent episodes of lumbar spine pain, radiating down the lateral posterior aspect of the right leg. Notably, there is no evidence of "postoperative" intervertebral disc syndrome, as there was no evidence of surgery. In light of the veteran's complaints, which continued post-service, it is not reasonable to assume that the disability arising from the veteran's herniated nucleus pulposus at L5 was "cured." The evidence clearly and unmistakably demonstrates that the veteran's herniated nucleus pulposus at L5 rendered him unfit for duty, and the evidence does not demonstrate that the condition was "postoperative" or "cured" at the time of the February 1969 rating decision. Thus, there is no reasonable conclusion but that the service-connected back disability was of at least mild severity, and, therefore, could not have been rated as less than 10 percent disabling. The assignment of the noncompensable rating constituted CUE in the application of the criteria of Diagnostic Code 5293 to the medical evidence of the disability available for consideration at that time. With regard to the compensable rating that was warranted based on the evidence of record at the time of that February 1969 rating decision, the Court noted that the record reflected that the examiner in 1969 reported the veteran's complaints of recurrent back pain that radiated down the right leg, and that the condition was documented in service. The Court further noted that the examiner also reported that the symptoms worsened with heavy work, and held that 38 C.F.R. § 4.40 should have been considered. The Court pointed out that the medical board finding of recurrent back pain that improved with bed rest and worsened with physical activity, although not binding on VA, is compelling evidence of the existence of continuing disability. Based on the foregoing, an pursuant to the Court's order, the Board finds that the record before VA in February 1969 reflected that the symptoms and manifestations of the veteran's service-connected back disability, then characterized as a history of a herniated nucleus pulposus at L5-S1, and now characterized as degenerative changes of the lumbar spine, were more accurately characterized by the criteria for a 20 percent rating under the rating criteria then in effect. Thus, the February 1969 rating decision is reversed and amended, pursuant to 38 C.F.R. § 3.105(a), to provide a 20 percent evaluation for degenerative changes of the lumbar spine, then characterized as a history of a herniated nucleus pulposus at L5-S1, from November 15, 1968. ORDER A 20 percent evaluation for the veteran's service-connected degenerative changes of the lumbar spine, then characterized as a history of a herniated nucleus pulposus at L5-S1, is granted, effective November 15, 1968, subject to the governing regulations applicable to the payment of monetary benefits. John E. Ormond, Jr. Member, Board of Veterans' Appeals