Citation Nr: 0000107 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 98-10 398A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to a compensable evaluation for residuals of tuberculosis of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nancy R. Kegerreis INTRODUCTION The veteran served on active duty from August 1953 to September 1955. This matter comes before the Board of Veterans' Appeals (Board) from a January 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied a compensable evaluation for tuberculosis of the lumbar spine. It appears by the evidence of record (see report of R. Alvarez, M.D. and February 1998 statement from the veteran's representative) that the veteran may wish to pursue a claim of entitlement to service connection for lumbosacral discogenic disc disease, L4-L5 with radiculopathy. The RO has not adjudicated such a claim, and it should take appropriate steps to clarify with the veteran whether he wishes to make a claim for that condition, and, if so, undertake appropriate adjudicative actions. FINDINGS OF FACT 1. The veteran's tuberculosis of the lumbar spine remains inactive. 2. There are no physical manifestations of residuals of tuberculosis of the lumbar spine, with the only current evidence of the disorder being x-ray evidence of a narrowing of the L1-L2 intervertebral disc space and subchondral sclerosis. 3. The veteran's current degenerative disc disease of L4-L5 has not been shown to be related to residuals of tuberculosis of the lumbar spine or to the L1-L2 disc narrowing due to tuberculosis of the lumbar spine. CONCLUSION OF LAW The schedular criteria for a compensable disability rating for residuals of tuberculosis of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.71a, Diagnostic Codes 5001-5289, 4.88b,c, 4.89 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The first evidence in the service medical records of a disorder involving the veteran's lumbar spine was noted in March 1955, when the veteran apparently had a spontaneous onset of pain in the right buttock. Examination revealed a marked list to the right with marked spasm bilaterally, but mostly on the right. Later that month, a record from the U.S. Naval Hospital in Portsmouth, Virginia, noted the onset of back pain for the past month, with no history of trauma. The pain had apparently had an insidious onset and was aggravated by lifting and sudden movement. Physical examination was normal, except for spasm in the right lower back and in the right buttock and a slight scoliosis. Neurological examination was normal, range of motion was full, except for diminution of flexion in the lower back, and x-rays of the back and spine were normal. A consultant's report in May 1955 had disclosed a history of back strain five months before when the veteran had felt pain in right hip while lifting a tire. Since then he had gradually had an increasing contracture of the right lower extremity, causing him to walk with his knee bent and back tilted to the right. The physician opined that, despite the fact that the disorder had started with exertion, a psoas abscess should be considered a possibility, although a herniated lumbar disc should first be ruled out. Following a review of x-rays, which showed a torsion and mild scoliosis of the lumbar spine but no spinal disease, the physician concluded that a tuberculous abscess in the psoas was more likely. In May 1955, the veteran was hospitalized at Rodriguez Army Hospital in Puerto Rico, where x-rays in June 1955 revealed a congenitally hypoplastic process, but no evidence of a fracture or definite bone destruction. The first lumbar interspace was considered narrow and consistent with an acid- fast psoas abscess. Subsequent x-rays revealed erosion of the bodies of the first and second vertebrae, although the scoliosis had largely been corrected. In August 1955, a large abscess was evacuated in the right side of the psoas muscle. The diagnosis was tuberculosis of bone, first and second lumbar vertebrae, active, affecting major joints. Following treatment at Rodriguez Army Hospital, the veteran was transferred to a VA hospital, where he was treated with antibiotics and his back put in a brace. He was discharged in October 1955 as improved. His first VA disability evaluation examination was in November 1956, at which time the veteran had no symptoms and appeared to be doing well. Reports of x-rays the previous January had revealed narrowing of the intervertebral space at L1 and L2 with slight sclerosis of the adjacent margins, as well as some deformity of the adjacent vertebral plates. The findings as described were compatible with the diagnosis of tuberculous spondylitis, which had healed. The examiner stated that the disease was apparently inactive, although he commented that no definite statement could be made concerning activity of the tuberculous lesion, since his personal opinion was that the only safeguard against reactivation was spinal arthrodesis. The veteran was examined again by VA in July 1957. At this time, tuberculous spondylitis, L1-L2, was considered to be old and clinically and radiologically inactive. Examination by Army physicians in September 1957 confirmed VA findings that the infection was inactive. The Army examiner stated that there had been no evidence of fusion of the involved vertebrae at the time of his examination and that it was doubtful that bony fusion would occur. He recommended that the veteran be presented before a Physical Evaluation Board for return to duty. In November 1957, the Army determined that the veteran was physically fit and removed him from the Temporary Disability Retired List. A VA examination in December 1997 for pulmonary tuberculosis and mycobacterial diseases noted that the veteran had never had any more back problems and concluded that there was no evidence of active pulmonary tuberculosis at present or in the past. VA outpatient treatment records, dating from July to September 1997 noted complaints of back pain when standing. Reports of x-rays were stated to have revealed degenerative disc disease. A VA examination of the spine in November 1997 reported that x-rays taken the prior July had noted narrowing of the L1-L2 intervertebral disc space and subchondral sclerosis. The veteran complained of mild low back pain with radiation to his whole body, including the posterior aspect of his legs, for which he saw doctors about once a month. He stated that the pain became worse with prolonged walking, standing, sitting or driving, but that he was able to perform his daily activities, although with discomfort. Physical examination revealed a range of motion of the lumbar spine of forward flexion to 40 degrees, backward extension to 15 degrees, and right and left lateral flexion and rotation to 35 degrees. The examiner commented that there was mild painful motion on the last degree of range of motion on all movements and that he believed the veteran was not exerting his full effort in performing these tests, partially due to pain. He wrote that he had found no additional limitation of motion due to pain, fatigue, weakness, or lack of endurance following repetitive use or during flare-ups. There was also no objective evidence of spasm, of weakness of the legs, or of tenderness to palpation on the lumbar paravertebral muscles. Additionally, he found no postural abnormalities or fixed deformity and no neurological abnormalities. The diagnosis was inactive tuberculosis of the lumbar spine. In December 1997, the veteran was seen by a private physician, Robert Alvarez Swihart, M.D. A reported medical history noted a back injury while in the Army at Fort Bragg. He had been discharged from hospitals with a diagnosis of tuberculosis of the vertebral bodies at L1 and L2. He presently complained of persistent pain that interfered with his daily activities and had caused an early retirement from his job as a salesman. Musculoskeletal examination revealed lumbosacral paravertebral myositis, with multiple trigger points. Back flexion was 60 degrees, extension 10 degrees, and lateral bending 10 degrees. Straight leg raise was positive at 45 degrees on the right and 35 degrees on the left. A CT scan had revealed diffuse intervertebral disc bulging at the level of L4 and L5. The diagnosis was discogenic disease at the L4-L-5 level with radiculopathy; vertebral body tuberculosis; arterial hypertension; and chronic back pain. Dr. Alvarez limited his comments to the etiology of the veteran's current discogenic disease at L4-L5, and the difficulties resulting therefrom. He made no mention of the vertebral body tuberculosis, other than to report that the veteran could have suffered both an injury to his spine and vertebral body tuberculosis. In March 1998, a VA physician reviewed the veteran's medical records at the request of the RO. He noted hospitalization in March 1955 for pain in the right lumbar region, which was later found to be due to active tuberculosis of the bone, first and second lumbar vertebrae. Following an operation for a psoas abscess, the veteran had been granted service connection at 100 percent for active tuberculosis of the lumbar spine. In June 1955, x-rays had revealed a narrowed first lumbar interspace, consistent with acid-fast psoas abscess. In August 1955, x-rays showed erosion of the first and second lumbar vertebrae consistent with tuberculosis. This physician also referred to a November 1957 rating decision which had found the tuberculous spondylitis, L1-L-2, clinically and radiographically inactive. The veteran, who had had a history of arthritis, had recently been seen in July 1997 for complaints of low back pain, following a period of 40 years in which he apparently had not received any treatment. The VA physician stated that he had reviewed and evaluated the opinion of Dr. Alvarez. It was his conclusion that Dr. Alvarez's findings of diffuse intervertebral disc bulging at the level of L4-L5 with radiculopathy were not related to the service-connected inactive lumbar tuberculous disease, because, anatomically, the vertebral levels noted by Dr. Alvarez were not the same vertebral levels as those involved by tuberculosis during service. II. Legal Analysis The veteran has presented a well-grounded claim for an higher disability evaluation for his service-connected tuberculosis of the lumbar spine within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A claim that a condition has become more severe is well grounded where the condition was previously service connected and rated and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the prior rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Since the Board is satisfied that all relevant and available facts have been properly developed, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Disability evaluations are administered under the Schedule for Rating Disabilities, which is designed to compensate a veteran for reductions in earning capacity as a result of injury or disease sustained as a result of or incidental to military service. Bierman v. Brown, 6 Vet. App. 125, 129 (1994). In evaluating a disability, VA is required to consider the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; Dinsay v. Brown, 9 Vet. App. 79, 85 (1996). Although the Board must consider the whole record, 38 C.F.R. § 4.2 (1999), where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. Therefore, those documents created in proximity to the recent claim are the most probative in determining the current extent of impairment. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The medical records reveal an RO determination that the veteran's tuberculous spondylitis had become clinically and radiologically inactive as of July 2, 1957. Regulations at the time, as indicated in 38 C.F.R. § 4.89 (1999), provided a 100 percent rating for two years after the date of inactivity, following active tuberculosis, which was clinically identified during service or subsequently. A 50 percent rating was granted thereafter for 4 years, or in any event, to 6 years after the date of inactivity. A 30 percent evaluation was granted thereafter for 5 years, or to 11 years after the date of inactivity. Thereafter, in the absence of a schedular compensable permanent residual, the rating was noncompensable. In accordance with the above prior VA regulations, the RO granted a 100 percent evaluation from October 1955 to July 1959; a 50 percent evaluation from July 1959 to July 1963; a 30 percent from July 1963 to July 1968; and a 0 percent evaluation from July 1968. Current regulations are found in 38 C.F.R. § 4.71a, Diagnostic Code 5001 for tuberculosis of the bones and joints. If the disease is active, compensation is at a 100 percent rating. An inactive disease process is rated under 38 C.F.R. § 4.88b and 4.89. The latter regulation notes that Public Law 90-493 had repealed the section of the United States Code which had provided graduated ratings for inactive tuberculosis. The repealed section, however, still applies in the case of any veteran who, on August 19, 1968, was receiving or entitled to receive compensation for tuberculosis. Since the veteran was validly not receiving compensation on that date, 38 C.F.R. § 4.89 does not apply to him. Accordingly, pursuant to 38 C.F.R. § 4.88b, he must be evaluated by analogy under Diagnostic Code 6311 for miliary tuberculosis, which in the inactive state, is referable to 38 C.F.R. § 4.88c, for initial entitlement after August 19, 1968. This code provides that, for one year after date of inactivity, following active tuberculosis a 100 percent evaluation is warranted. Thereafter, residuals are to be rated under the specific body system or systems affected. Residuals will be assigned under the appropriate diagnostic code for the residual preceded by the diagnostic code for tuberculosis of the body part affected. In applying the above regulation, the veteran may be rated under Diagnostic Codes 5001-5289. Diagnostic Code 5289 provides that ankylosis of the lumbar spine if unfavorable warrants a 50 percent evaluation and if favorable a 40 percent evaluation. A most careful review of the veteran's medical records throughout the years indicates that he has never developed any ankylosis or fusion whatever of his lumbar spine. Reports of x-rays in 1956 had revealed narrowing of the intervertebral space at L1 and L2 with slight sclerosis of the adjacent margins, as well as some deformity of the adjacent vertebral plates. Recent VA examination has also shown no postural abnormalities, no fixed deformity, and no evidence of bony fusion. Reports of x-rays taken in 1997 had noted narrowing of the L1, L2 intervertebral disc space and subchondral sclerosis, similar to the x-rays in 1956. The Board can thus find no evidence of the typical residuals of tuberculous spondylitis and no worsening of the condition. In considering the December 1997 examination and opinion of Dr. Alvarez, it is clear that this physician's opinions relate to a different issue than that before the Board. The opinion is not relevant to the issue before the Board, as it opines a relationship between a reported injury in service and the development of lumbosacral discogenic disease at L4- 5. The RO has not adjudicated the issue of entitlement to service connection for lumbar disc disease at L4-5. Dr. Alvarez's opinion does not support a higher evaluation for tuberculosis residuals, as it applies to a separate segment of the lumbar spine, and it does not relate the L4-5 lumbar disc disease in any way to the tuberculosis. That Dr. Alvarez's report does not support a higher evaluation for tuberculosis of the lumbar spine is bolstered by the VA examiner's opinion in March 1998. The VA physician pointed out that the veteran's discogenic disease did not involve the same vertebrae as those that had been affected by the tuberculosis. There has, moreover, been no evidence that tuberculosis of the bone has recurred or that the current diagnosis of degenerative disc disease bears any relationship to the tuberculous disease in service. The Board has also considered an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1), but finds that recent evidence does not show an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards for evaluation of inactive tuberculosis. Therefore, there is no reason to refer the issue to the RO for submission to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration. Neither is there an approximate balance of positive and negative evidence on the merits which would permit an increased evaluation based on the benefit of the doubt pursuant to 38 U.S.C.A. § 5107. Accordingly, the preponderance of the evidence is against the claim for a compensable rating for tuberculosis of the lumbar spine. ORDER A compensable rating for tuberculosis of the lumbar spine is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals