Citation Nr: 0005774 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 94-14 506A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for degenerative disc disease and osteoarthritis of the lumbar spine as secondary to service-connected chronic low back pain and residuals of injury. 2. Entitlement to an increased disability rating for chronic low back pain, residuals of injury, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The veteran had active military service from December 1942 to May 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. A November 1993 rating decision denied the veteran's claim for a disability rating in excess of 10 percent for his service-connected back condition. Thereafter, an April 1996 rating decision assigned a 20 percent disability rating for this condition. However, this was not a full grant of the benefit sought on appeal because a higher disability rating is available under Diagnostic Code 5295. On a claim for an original or an increased rating, the claimant is generally presumed to be seeking the maximum benefit allowed by law and regulation, and such a claim remains in appellate status where a subsequent rating decision awarded a higher rating, but less than the maximum available benefit. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, this issue remains before the Board. In December 1996, the Board remanded the veteran's claim for an increased rating for additional development. The RO substantially complied with the Board's Remand instructions. While this case was in remand status, a June 1999 rating decision denied the veteran's claim for secondary service connection for degenerative disc disease and osteoarthritis of the lumbar spine, and the veteran also perfected his appeal as to that issue. In January 2000, a videoconference hearing was held before the undersigned, who is the Board member making this decision and who was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7107(c) (West Supp. 1999). FINDINGS OF FACT 1. There is no medical evidence of a nexus, or link, between the veteran's current degenerative disc disease and osteoarthritis of the lumbar spine and his service-connected chronic low back pain as a residual of injury, and the claim for service connection is not plausible. 2. The veteran's claim for an increased rating for his service-connected back disorder is plausible, and the RO has obtained sufficient evidence for correct disposition of this claim. 3. The veteran's service-connected back disorder is manifested by subjective complaints of pain and objective evidence of slight restriction of motion, but with no objective and/or credible evidence showing functional loss. 4. The majority of the veteran's current back-related symptomatology is attributable to nonservice-connected degenerative disc disease and osteoarthritis of the lumbar spine. CONCLUSIONS OF LAW 1. The claim for service connection for degenerative disc disease and osteoarthritis of the lumbar spine as secondary to service-connected chronic low back pain, residuals of injury, is not well grounded, and there is no statutory duty to assist the veteran in developing facts pertinent to this claim. 38 U.S.C.A. § 5107 (West 1991). 2. The veteran's claim for an increased disability rating for his service-connected back disorder is well grounded, and VA has satisfied its duty to assist him in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). 3. The criteria for a disability rating in excess of 20 percent for chronic low back pain, residuals of injury, are not met. 38 U.S.C.A. §§ 1155 and 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, and 4.71a, Diagnostic Code 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all the evidence of record, which consists of the veteran's service medical records; his contentions, including those raised at a personal hearing 2000; a letter from Marvin Richardson, M.D., received in 1947; VA records for treatment in 1992 and 1993; and reports of VA examinations conducted in 1950, 1994, and 1997. The evidence pertinent to each issue is discussed below. A. Secondary service connection for degenerative disc disease and osteoarthritis of lumbar spine Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1999). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (1999); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling, Leopoldo v. Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet. App. 34 (1991). In Allen, the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court) indicated that the term "disability" as used in 38 U.S.C.A. § 1110 "... refers to impairment of earning capacity, and that such definition mandates that any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service- connected condition, shall be compensated. The Court then concluded that "... pursuant to § 1110 and § 3.310(a), when aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Id. Thus, service connection on a secondary basis may be granted under one of two conditions. The first is when the disorder is proximately due to or the result of a disorder of service origin. In that case, all symptomatology resulting from the secondary disorder will be considered in rating the disability. The second is when a service-connected disability aggravates a nonservice-connected disability. In those cases, VA may only consider the degree of disability over and above the degree of disability prior to the aggravation. A well-grounded claim for secondary service connection for a disorder must include medical evidence that a connection or relationship between the service-connected disorder and the new disorder is plausible. Jones v. Brown, 7 Vet. App. 134, 137 (1994). Even if there is another plausible explanation for the origin of the new disorder, a claim for secondary service connection is well grounded if there is a plausible explanation, bolstered by sufficient medical evidence, of why the new disorder should be service connected. Reiber v. Brown, 7 Vet. App. 513, 517 (1995). The veteran's claim for secondary service connection for degenerative disc disease and osteoarthritis of the lumbar spine is not well grounded because there is no medical evidence showing that a connection or relationship between the service-connected chronic low back pain, residuals of injury, and these disorders is plausible. At no time has a medical professional indicated that the veteran's service- connected residuals of back injury with chronic low back pain have resulted in the development of degenerative disc disease and/or osteoarthritis of the lumbar spine. In fact, the medical evidence indicates that the current degenerative changes in the veteran's lumbar spine are due to the aging process and are not related to the service-connected low back strain or a residual of injury. The only evidence linking the veteran's current degenerative disc disease and osteoarthritis of the lumbar spine to his service-connected disorder consists of his current statements. He argues that he has experienced the same back- related symptoms for 50 years, so the current degenerative changes are, essentially, a natural progression of the service-connected disability. However, he cannot meet his initial burden under 38 U.S.C.A. § 5107(a) by simply presenting his own opinion. He does not have the medical expertise to render a probative opinion as to medical causation. See Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Without competent medical evidence establishing that there is a plausible relationship between the current degenerative disc disease and osteoarthritis of the lumbar spine and the service- connected chronic low back pain, residuals of injury, the claim for service connection on a secondary basis is not well grounded. See Jones, 7 Vet. App. at 137. The Board notes that the veteran's representative argued at the hearing that the Merck Manual contradicts the 1997 VA examiner's opinion, in that it apparently states degenerative changes are not an inevitable part of the aging process. The representative also argued that osteoarthritis can develop from an injury, such as that suffered by the veteran during his military service. He asked that the veteran be given the benefit of the doubt. The representative's statements do not, however, well ground this claim. First, the representative did not submit excerpts from the Merck Manual supporting his arguments. Second, even if the Merck Manual does state what the representative claimed, such statements are too general and inconclusive to well ground this claim. See Sacks v. West, 11 Vet. App. 314, 317 (1998). Any evidence from the Merck Manual would clearly not apply to this particular veteran, but, rather, would be general in nature. In this case, the 1997 VA examiner reviewed the claims file and rendered a definitive opinion. There is no contrary medical opinion of record and there is no reason for the Board to doubt the medical rationale underlying the examiner's opinion. Furthermore, the "benefit of the doubt" rule does not apply until the claimant meets the threshold burden of submitting a well-grounded claim. 38 C.F.R. § 3.102 clearly states that the claimant is required to submit evidence sufficient to justify a belief in a fair and impartial mind that the claim is well grounded. The Court has concluded that the "benefit of the doubt" rule does not shift the initial burden to submit a facially valid claim from the claimant to VA. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). For the reasons discussed above, the Board concludes that the veteran has failed to submit a well-grounded claim; therefore, he is not entitled to the benefit of the doubt. Until the veteran establishes a well-grounded claim, VA has no duty to assist him in developing facts pertinent to the claim, including providing him additional medical examinations at VA expense. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.326(a) (1999) (VA examination will be authorized where there is a well-grounded claim for compensation); see Morton v. West, 12 Vet. App. 477 (1999) (VA cannot assist a claimant in developing a claim that is not well grounded). When a claimant refers to a specific source of evidence that could make his claim plausible, VA has a duty to inform him of the necessity to submit that evidence to complete his application for benefits. See Epps v. Brown, 9 Vet. App. 341, 344-45 (1996), aff'd Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). VA has no outstanding duty in this case to inform the veteran of the necessity to submit certain evidence to complete his application for VA benefits. See 38 U.S.C.A. § 5103(a) (West 1991). There is no indication of any medical records that might well ground this claim. The veteran has not alleged that any medical records exist that would contain medical opinions associating the current degenerative disc disease and osteoarthritis of the lumbar spine with his service-connected condition. The presentation of a well-grounded claim is a threshold issue. Therefore, since the veteran has failed to present competent medical evidence that his claim for service connection for degenerative disc disease and osteoarthritis of the lumbar spine is plausible, the claim must be denied as not well grounded. Dean v. Brown, 8 Vet. App. 449 (1995); Boeck v. Brown, 6 Vet. App. 14, 17 (1993). There is no duty to assist further in the development of this claim, because such additional development would be futile. See Murphy, 1 Vet. App. 78. B. Increased rating for chronic low back pain, residuals of injury The first responsibility of a claimant is to present a well- grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). A claim for an increased disability rating is well grounded if the claimant alleges that a service-connected condition has worsened. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The veteran has complained of increased back pain; therefore, his claim is well grounded. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a well-grounded claim for an increase, but the medical evidence is not adequate for rating purposes, an examination will be authorized. 38 C.F.R. § 3.326(a) (1999). Reexamination will be requested whenever VA determines that there is a need to verify either the continued existence or the current severity of a disability. 38 C.F.R. § 3.327(a) (1999). Generally, reexaminations are required if it is likely that a disability has improved, if the evidence indicates that there has been a material change in a disability, or if the current rating may be incorrect. Id. In this case, the RO provided the veteran appropriate VA examinations in 1994 and 1997. The RO substantially complied with the Board's 1996 Remand instructions. The RO was unable to obtain the veteran's treatment records from Andrew Bishop, M.D., because the veteran provided an inaccurate address. It is unclear whether the veteran is currently receiving treatment for his service-connected back condition at the VA Medical Center; he only testified that he was provided pain medication from that facility. Regardless, it is not necessary to remand this case to obtain additional treatment records. The objective findings reported in the VA examination reports from 1994 and 1997 provide sufficient evidence to rate the service-connected disability fairly. The VA examination reports provide information as to range of motion and test results for functional abilities and neurological deficits. There is no objective evidence indicating that there has been a material change in the severity of the veteran's service-connected back disorder since he was last examined. Moreover, there is no indication that any records exist that would provide any additional information other than that already shown by the evidence of record. Accordingly, in the circumstances of this case, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90 (1990). Disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. The ratings are intended, as far as practicably can be determined, to compensate the average impairment of earning capacity resulting from such disorder in civilian occupations. 38 U.S.C.A. § 1155 (West 1991). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2 (1999). For a claim for an increased rating, the primary concern is the current level of disability. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Peyton v. Derwinski, 1 Vet. App. 282 (1991). It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (1999), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (1999). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). A regulation setting out principles relating to service connection, while not specifically addressed to rating service-connected disabilities, is instructive in assessing the evidence relating to the circumstances of this veteran's claim for increase. It provides that, when chronicity of a disease is established in service, subsequent manifestations of the same chronic disease, however remote, are service- connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999) (emphasis supplied). In considering the residuals of injury, it is essential to trace the medical-industrial history of the disabled person from the original injury, considering the nature of the injury and the attendant circumstances, and the requirements for, and the effect of, treatment over past periods, and the course of the recovery to date. 38 C.F.R. § 4.41 (1999). The veteran is currently evaluated under Diagnostic Code 5295 at 20 percent, which contemplates lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (1999). Diagnostic Code 5295 provides a maximum disability rating of 40 percent for severe lumbosacral strain with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Id. In evaluating this claim, the Board must consider whether a higher disability evaluation is warranted on the basis of functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40 (1999). A part that becomes painful on use must be regarded as seriously disabled. Id.; see also DeLuca. As regards the joints, factors to be evaluated include more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45(f) (1999). Under Diagnostic Code 5295, the 20 percent rating assigned by the RO contemplates a moderate level of symptoms. The recent findings have not shown that the veteran's back disorder is any more than slightly disabling, and the lack of objective findings preponderates against assignment of a higher disability rating. The recent medical evidence shows that, despite his complaints, the veteran is essentially normal from a functional standpoint. With respect to limitation of motion of the lumbar spine, the current range of motion findings show minimal limitation of motion overall. Moreover, the findings reported in 1997 showed significant improvement over those shown in 1994. The veteran did complain of pain with motion of the lumbar spine, but this is clearly not affecting his functional abilities to any degree, since he remains able to move the lumbar spine almost fully. Although muscle spasms were present in 1994, they were not shown upon examination in 1997. According to the diagnostic criteria, the current 20 percent rating contemplates characteristic pain on motion and muscle spasms. Although the evidence has shown that the veteran experiences these symptoms at times, the medical evidence does not show that the criteria for a 40 percent disability rating under Diagnostic Code 5295 have been met. There are no findings of listing of the spine or positive Goldthwaite's sign. The veteran does not have marked limitation of forward bending; he is, in fact, barely limited in that respect. It is true that he has osteo-arthritic changes and narrowing of joint space; however, these are clearly not due to injury, or part of his service-connected disability, as the VA examiner concluded in 1997. The current degenerative changes in the veteran's spine are a result of the natural aging process and are not part of the service-connected condition. The examiner's conclusion is supported by the fact that the current degenerative changes affect all levels of the veteran's lumbar spine and are therefore not limited to the site(s) of any prior trauma. He also does not have abnormal mobility on forced motion. Therefore, the criteria for an increased rating under Diagnostic Code 5295 are not met. Moreover, despite the veteran's complaints of increased back pain with certain activities, his actual functional impairment due to his service-connected back disorder is not shown to be more than slight, as indicated by the examiners' findings during the 1994 and 1997 examinations. There were no impairments with respect to motor strength, loss of sensation, or decreased reflexes. The veteran's gait is not impaired. There is no evidence of asymmetrical muscle wasting, which indicates that the veteran continues to use his muscles in a normal fashion. There is no evidence of leg weakness or tenderness of the back muscles. In fact, there have been few objective findings during the recent VA examinations. The determinative question, in this case, is whether the veteran's current complaints (i.e., inability to lift more than 4-6 pounds, constant back pain, etc.) are due to the service-connected residuals of inservice back injuries or the nonservice-connected degenerative disc disease and osteoarthritis of the lumbar spine. In order to make that determination, it is necessary to examine the medical evidence closely. See 38 C.F.R. § 4.41 (1999). The veteran had a congenital spina bifida defect which resulted in instability of the lumbar spine. During service, he complained of back pain, especially with physical activity. He was granted service connection on the basis of aggravation. Upon examination in 1950, he had increased normal lumbar lordosis, postural scoliosis, pain with motion, muscle spasm, and some spinal derangement. There is no evidence showing treatment for the veteran's back condition between 1950 and 1992. It was not until 1992 that the veteran began complaining of increased back pain, and the medical evidence shows diagnoses of degenerative disc disease and osteoarthritis of the lumbar spine at that time. Therefore, the evidence shows that prior to the onset of the veteran's nonservice-connected degenerative lumbar disease due to the aging process, his back-related symptomatology was not so disabling to him that he complained of it or sought treatment for it. The first indication of increased complaints was in 1992, more than 45 years after the veteran's separation from service. In light of the lack of objective findings showing a serious lumbar spine disorder between 1950 and 1992, the Board cannot conclude that the veteran's current impairment is related to his service-connected disability, and, as indicated above, a medical professional has concluded that the current degenerative conditions are not part and parcel of the service-connected disability. There is no doubt that the veteran currently has symptoms such as pain on motion and alleged functional impairment. However, these symptoms do not warrant an increased disability rating for his service- connected back disorder for the following reasons. First, it is more likely than not that the majority of his current symptoms are attributable to nonservice-connected lumbar spine disorders. The evidence clearly shows that the veteran's symptomatology as a result of his service-connected back disability is, at most, minimal. There were clearly minimal symptoms for more than 45 years after his military service. Only with the findings of degenerative disc disease and osteoarthritis of the lumbar spine have the veteran's complaints severely increased, and this fact is highly probative. Second, and most important, despite the increased complaints, there are few objective indicators of disability, as discussed above. Accordingly, the current 20 percent disability rating for the veteran's disability is appropriate. In this case, the current 20 percent disability rating adequately compensates for any functional loss the veteran has that is attributable to his service-connected back condition. The veteran's current limitation of lumbar spine motion and level of functional loss do not approximate the level of disability that would result from the criteria described above for an increased rating under Diagnostic Code 5295. There is a lack of objective medical evidence supporting any contention that the veteran suffers any additional functional loss and/or limitation of motion. The veteran has reported back pain, especially with motion. While the Board is required to consider the effect of the veteran's pain when making a rating determination, and has done so in this case, the rating schedule does not provide a separate rating for pain in this case. Spurgeon v. Brown, 10 Vet. App. 194 (1997). In this case, the 20 percent disability rating contemplates characteristic pain on motion, which adequately compensates the veteran for his pain and for any slight functional loss that he may experience during flare-ups. The objective medical evidence does not create a reasonable doubt regarding the level of his back disability. There are no findings indicative of a severe back disorder such as impairment of motor strength, muscle atrophy, neurological deficits, etc. Therefore, a disability rating higher than 20 percent is not warranted. The Board has considered all other potentially applicable diagnostic codes. Under Diagnostic Code 5292 a 40 percent disability rating is warranted for severe limitation of lumbar spine motion. However, as discussed above, and based on the findings reported by the physician who last examined the veteran in 1997, the reported range of motion findings are insufficient to support an increased rating. Under Diagnostic Code 5289 for ankylosis of the lumbar spine, a 40 percent disability rating is warranted for favorable ankylosis, and a 50 percent disability rating is warranted for unfavorable ankylosis. There is no medical evidence showing that the veteran has ankylosis of the lumbar spine. He is able to move the lumbar spine, so it is clearly not ankylosed. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (defining ankylosis as "immobility and consolidation of a joint due to disease, injury, surgical procedure") (citation omitted). Therefore, consideration of the veteran's service- connected disability under Diagnostic Code 5286 is also not warranted. Since the veteran is not service-connected for residuals of fractured vertebra, and there is no evidence showing that he has ever incurred such an injury to the lumbar spine, consideration of his service-connected disability under Diagnostic Code 5285 is not warranted. A diagnosis of intervertebral disc syndrome has not been rendered, and the veteran has no abnormal neurological signs that might support evaluation of the back disorder under Diagnostic Code 5293. Accordingly, the preponderance of the evidence is against assignment of a disability rating higher than 20 percent under all potentially applicable diagnostic codes. There is no reasonable doubt on this matter that could be resolved in the veteran's favor. ORDER Entitlement to service connection for degenerative disc disease and osteoarthritis of the lumbar spine as secondary to service-connected chronic low back pain and residuals of injury is denied. Entitlement to a disability rating in excess of 20 percent for chronic low back pain, residuals of injury, is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals