Citation Nr: 0003805 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 98-01 798A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased evaluation for a lumbar spine disability, currently evaluated as 60 percent disabling. 2. Entitlement to service connection for erectile dysfunction. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Valerie E. French, Associate Counsel INTRODUCTION The veteran served on active duty from July 1964 to November 1968, and from August 1970 to August 1986. This appeal arises before the Board of Veterans' Appeals (Board) from a January 1997 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA), in which an increased evaluation of 60 percent disabling was granted for degenerative arthritis in the lumbar spine. The veteran has indicated his continued disagreement with the assigned evaluation. By that same rating action, service connection was denied for impotence, claimed as secondary to service-connected lumbar spine disability. FINDINGS OF FACT 1. The veteran's back disorder is currently evaluated with the maximum allowable rating for a lumbar spine disability in the absence of ankylosis or residuals of vertebra fracture manifested by cord involvement, and there is no evidence of functional loss or unusual disability factors to such a degree as to warrant the assignment of a higher rating. 2. Service medical records show that when seen for urological consultation in April 1986, it was the opinion of the examining provider that the veteran's complaints of impotency and erectile dysfunction were etiologically related to radiculitis and resulting deactivation of the venous pulses, as symptoms of low back pain and a diagnosis of degenerative joint disease of the spine, which is now a service-connected disability. On VA examination in 1996, the examiner also provided an opinion that the veteran's initial impotency was caused by venous insufficiency. 3. The record demonstrates continuity of treatment for erectile dysfunction since the time of discharge as well as a current diagnosis of erectile dysfunction on VA examination in 1998. CONCLUSION OF LAW 1. An evaluation in excess of 60 percent disabling is denied for the veteran's lumbar spine disability. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 4.71(a), Diagnostic Code 5293 (1999). 2. The preponderance of the available evidence weighs in favor of a finding that erectile dysfunction was incurred in the veteran's period of active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Increased evaluation for service-connected lumbar spine disability Initially, the Board finds that the veteran's claim for an increased evaluation is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998) that is, the claim is plausible. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). The record does not indicate the need to obtain any additional pertinent records, and is accordingly found that all relevant facts have been properly developed, and that the duty to assist the veteran has been satisfied. Evidence Service medical records show frequent treatment for low back pain and a diagnosis of osteoarthritis of the spine. In November 1986, service connection was granted for degenerative joint disease of the spine, with assignment of a 10 percent evaluation under Diagnostic Code 5003. On VA examination in May 1987, the examiner provided an assessment of degenerative joint disease of the spine, hands, wrists, shoulders, and rib cage. On x-ray of the lumbosacral spine in May 1987, findings included mild compression fracture of the first lumbar vertebral body, undoubtedly old, and mild spondylosis. In June 1987, service connection was granted for degenerative joint disease of the multiple joints, without significant limitation of motion (formerly rated as degenerative joint disease of the spine). A 20 percent evaluation was assigned for this disability under Diagnostic Code 5003. In February 1993, service connection was granted for degenerative arthritis of the various joints as separate entities. An evaluation of 40 percent disabling was granted for degenerative arthritis of the lumbar spine under Diagnostic Code 5003-5292. The record includes reports of private medical treatment for back symptomatology. A September 1994 medical report shows an impression of probable mechanical back pain with facet joint disease. A therapeutic log record, dated November 1994, shows that the veteran reported that sacroiliac facet injections were unsuccessful in relieving back pain. Ambulation was difficult and diagnoses of possible fibromyalgia, sacroiliac joint dysfunction, and mechanical low back pain are shown. In an undated doctors' statement, Julia Fowler, M.D., indicated that the veteran was unable to achieve full extension of the back. It was noted that a CT scan had revealed a bulging disc at L5-S1 and x-ray findings in March 1996 showed degenerative changes in the lumbar spine. A diagnosis of low back pain with muscle spasm was given. The report of a March 1996 lumbar spine consultation shows that the veteran gave a history of the back freezing up for the past year and a half, whenever he attempted any motion and particularly on moving from one side to another. He was also experiencing pain down into his left thigh. On physical examination, he was not able to come to full extension of his lower lumbar spine. Straight leg raising was negative, reflexes were normal, and circulation in his feet was slightly diminished. There was diffuse tenderness in the lower back. On VA examination in March 1996, the veteran complained that his low back pain worsens progressively during the day. Objective findings included localized tenderness in the lumbosacral area. There were no postural abnormalities or fixed deformities, and the musculature of the back was normal for his age. Range of motion was to 52 degrees of forward flexion, 10 degrees of backward extension, 20 degrees of left lateral flexion, and 22 degrees of right lateral flexion. There was objective evidence of pain on motion and there were localizing neurological signs. A diagnosis of chronic lumbosacral strain is shown. In January 1997, an increased evaluation of 60 percent disabling was granted for degenerative arthritis of the lumbar spine, based on application of Diagnostic Code 5003- 5293. In a statement dated May 1997, Dr. Fowler indicated that the veteran had physical limitations which prevented him from operating equipment which requires twisting, turning or standing for long periods; lifting materials greater than 20 pounds; stooping or bending; or lifting materials above his head. She also indicated that he experienced extreme fatigue and pain after standing for 4-5 hours. In a September 1997 statement, Dr. Fowler indicated that the veteran had been under her treatment since 1993 for low back pain with spasms, bulging L5, and degenerative joint disease of the neck and shoulders. In September 1997, a VA physician indicated that the veteran had a long standing history of low back pain. VA outpatient treatment records, dated in 1997 and 1998, show that the veteran was followed in the chronic pain management clinic for chronic low back pain and degenerative disc disease. In January 1998, the veteran was afforded a VA examination. Findings included that the lumbosacral spine was stiff and showed some decrease in range of motion. Diagnoses included chronic degenerative joint disease of the lumbosacral spine with chronic pain syndrome of the lumbosacral spine. On VA spine examination, he indicated that precipitating factors in his pain included weather and activity, and alleviating factors included a recliner or bed. He did not use crutches, a brace, or a cane. On physical examination, he got up out of the chair with great caution and he walked well, and motion stopped when pain began. On range of motion evaluation, forward flexion was to 22 degrees, backward extension was to 14 degrees, flexion to the right was 14 degrees, and flexion to the left was 14 degrees. The examiner provided a diagnosis of degenerative joint disease, lumbar and cervical spine, with loss of function due to pain. X-ray examination of the lumbosacral spine revealed findings of five rib bearing lumbar type vertebra and in addition, an anterior wedge compression fracture deformity, age indeterminate, was seen at L1. In his VA Form 9 (substantive appeal), dated February 1998, the veteran indicated that he had arthritis in the spine in his cervical, thoracic, and lumbar regions as well as wedging in the lower thoracic region, malformation of the lumbar and cervical spine, and ankylosis. He indicated that overall, the spine caused him continuous pain and without medication he would be in continuous pain and unable to sleep. In April 1998, the veteran was afforded a hearing, in accordance with his request, before a local officer at the Montgomery RO. The veteran indicated that he had recently been receiving VA treatment for pain management. He described symptoms such as muscle spasms in the lumbar spine. He indicated that he cannot bend at the waist in any direction, and he reported that the pain is cumulative and progressive throughout the day. On the trip from Huntsville, which was approximately 200 miles, he had to stop 4 or 5 times to walk around. In September 1998, entitlement to a total rating based on individual unemployability was granted. Analysis Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule), 38 U.S.C.A. § 1155 (West 1991 & Supp. 1999); 38 C.F.R. Part 4 (1999). In making a determination in this case, the Board has carefully reviewed the pertinent medical evidence, including the veteran's entire medical history in accordance with 38 C.F.R. § 4.1 (1999) and Peyton v. Derwinski, 1 Vet.App. 282 (1991). 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). All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. § 4.2, 4.6 (1999). In evaluating service-connected disabilities, the Board looks to functional impairment. The Board attempts to identify the extent to which a service-connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.2, 4.10 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity or other pathology, or it may be due to pain, supported by adequate pathology and evidence by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (1998). See also DeLuca v. Brown, 8 Vet.App. 202 (1995). In making its determination in this case, the Board has carefully considered the claim in light of the provisions of 38 C.F.R. §§ 4.40, 4.59, (1998) and DeLuca. The veteran's service-connected lumbar spine disability is currently evaluated as 60 percent disabling under Diagnostic Code 5293. Diagnostic Code 5293 provides a 60 percent evaluation for pronounced intervertebral disc syndrome manifested by persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to site of diseased disc, with little intermittent relief. Having reviewed the record, the Board is of the opinion that the preponderance of the evidence weighs against a finding that the veteran is entitled to an evaluation in excess of 60 percent disabling for his lumbar spine disability. Specifically, this disability is currently evaluated with the highest rating allowable for intervertebral disc syndrome under Diagnostic Code 5293. Furthermore, the Schedule does not contemplate the assignment of ratings in excess of 60 percent for lumbar spine disabilities in the absence of bony fixation or ankylosis (under Diagnostic Code 5286) or residuals of vertebra fracture manifested by cord involvement, bedridden, or requiring long leg braces (Diagnostic Code 5285), and the veteran's back disability has not been shown to be productive of either ankylosis or cord involvement. The record indicates a history of lumbar spine compression fracture, and the veteran has pointed out that there is evidence of a wedging deformity of the lumbar spine. However, the current 60 percent rating for his lumbar spine already exceeds the rating that would be warranted for his disability on the basis of limitation of motion in conjunction with demonstrable deformity of a vertebral body under Diagnostic Code 5285. Furthermore, the assignment of separate evaluations for the veteran's lumbar spine pathology under two different diagnostic codes is prohibited by the anti-pyramiding provisions of 38 C.F.R. § 4.14 (1999). The veteran and his representative have argued that it would be appropriate to assign an increased evaluation for the low back disability on an extra-schedular basis or on the basis of functional loss due to pain. The Board finds that the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (1999). In this regard, the Board finds that there has been no showing by the veteran that his lumbar spine disability has resulted in marked interference with employment or necessitated frequent periods of hospitalization beyond that contemplated by the rating schedule. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet.App. 337 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). Likewise, the Board is of the opinion that the findings of pain on range of motion of the lumbar spine and functional loss as a result of pain are adequately compensated through the assignment of the maximum allowable rating of 60 percent for intervertebral disc syndrome under Diagnostic Code 5293. Thus, the Board finds that there is no basis for the assignment of an evaluation in excess of 60 percent disabling with consideration of DeLuca, supra, or 38 C.F.R. §§ 4.40, 4.45, and 4.59. For the reasons stated above, therefore, the Board finds that the preponderance of the evidence weighs against a finding that an evaluation in excess of 60 percent disabling is warranted for the veteran's service-connected lumbar spine disability. As the preponderance of the evidence is unfavorable, the veteran's claim for an increased evaluation must be denied. Service connection for erectile dysfunction The veteran contends that service connection is warranted for impotence, either on a direct basis or as secondary to his service-connected lumbar spine disability. The Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. VA has a duty to assist the veteran to develop facts in support of a well grounded claim. 38 U.S.C.A. § 5107(a) (West 1996) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). The veteran has not alleged, and the record does not indicate, the need to obtain any pertinent records which have not already associated with the claims folder. Thus, the Board finds that VA's duty to assist the veteran has been satisfied. Evidence An April 1986 service medical record shows that the veteran underwent a urology consultation based on complaints of intermittent impotency. The veteran reported painful or 1/2 erections and an inability to maintain fullness. The examiner provided an impression that the pain in the veteran's back was directly related to the fullness of his erection, and it was noted that he had a diagnosis of degenerative joint disease at T12-L1. It was the examiner's supposition that the veteran was experiencing a venous leak based on T12-L1 radiculitis, all secondary to degenerative joint disease. It was further indicated that radiculitis caused pain along the T12 nerves which in turn deactivated the venous pulses, resulting in a venous leak and ultimately in erectile dysfunction. On separation examination in May 1986, the veteran was clinically evaluated as normal on genito-urinary examination. An October 1991 VA medical certificate shows that the veteran complained of a 5-6 year history of impotence. A diagnosis of impotence was given. When seen for follow-up in March 1992, it was noted that he still had back pain that was no worse than before, and he was still having impotence problems. An assessment of impotence was given. On VA examination in September 1992, the veteran complained of difficulty with erections which had progressively worsened. He described noted difficulty with sustained erections which occurred infrequently and were less pronounced. Diagnoses included impotency, increasing in severity, with question as to whether or not it may be aggravated by degenerative disease of the lower back. In an undated medical statement, Michael W. Brown, M.D., indicated that he had treated the veteran on various occasions in 1994 during office visits and at the hospital, and he provided a diagnosis of organic erectile dysfunction, managed with penile prosthesis. On VA examination in December 1996, the veteran reported that he initially noticed problems with his erection in about 1980. He consulted with a physician at Noble Army Hospital, and after being placed on injection therapy his impotence became increasingly worse. In 1994, he consulted with a urologist in Huntsville and used injections until May 1995, at which time an inflatable prosthesis was inserted. Subjective complaints included some pain in his penis. Objective findings included a well-functioning penile inflatable prosthesis that showed no evidence of complications. There was no present loss since he had a functioning prosthesis, and 100 percent of erectile power was preserved. There was no penile deformity present. It was noted that the cause of his initial impotency was vascular loss. Diagnoses included erectile penile prosthesis in place and functionally well, no impotency present at this time. On VA examination in January 1998, diagnoses included erectile dysfunction, status post scrotal implant. At his April 1998 personal hearing, the veteran reported that he had an impotence problem while he was on active duty, at which time no treatment was attempted as he was supposed to retire a few months later. After his discharge, the condition worsened to the point where he could not have an erection, and treatment included injections and an implant. The veteran testified that he was able to father children and he never had a problem with testosterone. Analysis According to 38 U.S.C.A. § 1110, 1131 (West 1991 & Supp. 1999), service connection may be granted for a disability if it is shown that the veteran suffers from a disease or injury incurred in or aggravated by service. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service-connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (1999). Having reviewed the record, the Board has concluded that a preponderance of the evidence weighs in favor of a grant of service connection for erectile dysfunction. The evidence shows that the veteran was treated for complaints of difficulties in maintaining an erection during his active duty in 1986, for which he was referred for a urological consultation. At that time of that consultation, the medical examiner attributed the erectile dysfunction to radiculitis and resulting deactivation of the venous pulses, which was a symptom of chronic low back pain and the confirmed diagnosis of degenerative joint disease of the spine, which is now a service-connected disability. On VA examination in 1996, the examiner attributed erectile dysfunction to venous insufficiency, and thus, VA's opinion as to the etiology of the veteran's erectile dysfunction is consistent with the opinion shown by the examining provider at the time of the veteran's in-service urology consultation. In addition, the record demonstrates continuity of treatment for erectile dysfunction since the time of service, as well as a current diagnosis on VA examination in 1998. Thus, the evidence suggests that the veteran has a current erectile disability which is related to his period of active service and to his service-connected disabilities. For these reasons, the Board has concluded that a preponderance of the available medical evidence weighs in favor of the finding that erectile dysfunction was incurred during the veteran's period of active military duty. Accordingly, service connection is granted for erectile dysfunction. ORDER An evaluation in excess of 60 percent disabling is denied for the veteran's lumbar spine disability. Service connection is granted for erectile dysfunction. C. P. RUSSELL Member, Board of Veterans' Appeals