BVA9505273 DOCKET NO. 92-55 983 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for lumbosacral disc disease as secondary to lumbosacral strain. 2. Entitlement to an increased evaluation for lumbosacral strain, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from April 1968 to April 1972. This appeal arose from a May 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO denied entitlement to an increased evaluation for lumbosacral strain. The RO affirmed the above determination when it issued a July 1991 rating decision. The Board of Veterans' Appeals (Board) REMANDED the case to the RO for further development in January 1993. The RO affirmed the prior denial of entitlement to an increased evaluation for lumbosacral strain and denied entitlement to service connection for lumbosacral disc disease as secondary to service-connected lumbosacral strain when it issued a rating decision in June 1994. The case has been returned to the Board for final appellate review. The issue of entitlement to an increased evaluation for lumbosacral strain will be addressed in the REMAND part of the decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection is warranted for lumbosacral disc disease as secondary to his service-connected lumbosacral strain. He argues that the degenerative disc disease process was already in evidence many years previously and proximate to the years following his separation from service. 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 record supports a grant of service connection for lumbosacral disc disease as secondary to service-connected lumbosacral strain. FINDING OF FACT Lumbosacral disc disease is causally related to service-connected lumbosacral strain. CONCLUSION OF LAW Lumbosacral disc disease is proximately due to or the result of service-connected lumbosacral strain. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310(a) (1994). REASONS AND BASES FOR FINDING AND CONCLUSION Initially the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that he has presented a claim which is plausible. The Board is satisfied that as a result of the January 1993 remand of the case to the RO for further development, all relevant facts have been properly developed, and that no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a). The service medical records show that on numerous occasions the veteran was treated for complaints of low back pain which were variously diagnosed as low back pain, low back strain, spina bifida occulta, and spondylolisthesis at L5-S1. A June 1972 VA examination concluded in diagnoses of low back pain, functional back strain secondary to spondylolisthesis, previously diagnosed but not found on x-ray, and obesity. The RO granted entitlement to service connection for residuals of lumbosacral strain which was assigned a noncompensable evaluation when it issued a rating decision in August 1972. On file is a medical certificate from a private physician dated in January 1975. The physician diagnosed spondylolisthesis at L5-S1 and residuals of low back pain. Complete neurological and orthopedic examinations were recommended. A February 1975 VA orthopedic examination concluded in a diagnosis of lumbosacral strain with spina bifida occulta. When seen at the local VA outpatient clinic in August 1976, the veteran reported that his low back pain had begun in 1972. He complained of stiff legs and stated that it was difficult to get out of bed. Low back pain was clinically diagnosed. On file is the report of an examination from a private physician dated in September 1976. The physician noted the veteran recounted having slipped and fallen in service in 1970, thereby injuring his back. His current pain was increased by prolonged sitting, standing, bending, lifting, and any kind of activity. A variety of analgesics had been of no help. X-rays of the lumbosacral spine disclosed an increased lumbosacral angle. There was a spina bifida of L5 and narrowing of the L5-S1 interspace with a subluxation at the apophyseal joint and some local sclerosis. On examination the veteran was described as moderately obese. He weighed 240 pounds and was 5 feet 8 inches tall. Forward flexion was to 70 degrees with increased back pain. Extension was to 10 degrees with back pain. Bending was to 15 degrees bilaterally with discomfort in the right lumbar paraspinal area at maximum bending. Rotation was full in both directions with some discomfort in the right lower back area with rotating to the right. In the sitting position the straight leg raising test was negative. In the supine position the appellant had low back discomfort with full hip flexion on both sides. The straight leg raising test was limited to about 70-80 degrees bilaterally by some tightness in the legs. Lasegue's test caused some increased tightness or discomfort in the buttock on the right; it did not particularly cause any symptoms on the left. There was no evidence of peripheral weakness. Deep tendon reflexes seemed equal and active. On sensory testing the veteran appeared to have decreased sensory appreciation on the medial calf and foot on the right side and in the interspace between the first and second toes when compared with the opposite side. The diagnostic impression was developmental abnormality of the low back with superimposed back strain. Nerve root irritation was to be ruled out. The physician commented that the veteran had some subjective complaints and findings suggestive of herniated nucleus pulposus and did have a narrowed disc space at L5-S1 with increased lumbosacral angle. An electromyographic study to be performed on the right lower extremity to check on the function of the nerves in this area was requested. A follow up report pertaining to the veteran's treatment in October 1976 is on file. A November 1976 VA general medical examination concluded in a finding of chronic lumbosacral sprain with possible spondylosis, and spina bifida occulta. The RO granted an increased evaluation of 10 percent for chronic lumbosacral strain when it issued a rating decision in January 1977. A March 1978 x-ray of the lumbosacral spine from a private radiologist noted there was no narrowing of any of the intervertebral disc spaces and no evidence of spondylolisthesis. An August 1984 private outpatient treatment report shows the veteran complained of discomfort in the right lower back. On examination there was tenderness in the right lower back with some mild spasm of the lumbar muscles on that side and a single point of maximal tenderness. Private treatment reports dated in April 1986 show the veteran presented with status post industrial injury to his neck and upper back. He reportedly was hit by a crate from behind while trying to adjust a lawnmower on the ground. He was diagnosed with acute severe cervical strain. An August 1987 VA medical certificate shows the veteran complained of back pain especially involving the right leg. The veteran noticed the pain more while sitting. In a May 1988 letter, a private physician noted his treatment of the veteran for complaints of low back pain with radiation into his right leg and of difficulty sleeping. X-rays of the lumbar spine revealed mild spondylolisthesis at L5-S1, degenerative disc disease, spina bifida occulta, trophism involving the facets at L5-S1, and a suggestion of an irregularity of the facet joints. Clinically, the veteran was noted to have problems involving his back and lower extremity with decreased range of motion and flexibility. Neurologically he appeared to be intact. An October 1988 VA computerized axial tomographic study of the lumbar spine revealed a mild generalized bulging disc at L3-L4, and also at L4-L5 with suggestion of lateralization to the right on multiple cuts. At L5-S1 there was a mild generalized bulging disc. The appellant was hospitalized by VA in November 1988. A computerized axial tomogram was interpreted as essentially normal without evidence of nerve root compression. It was felt the veteran might have mild to moderate degenerative joint disease of the lower spine. A March 1989 private medical report shows that a recent work up at a VA hospital disclosed the veteran had a mild bulging disc. A lumbosacral computerized axial tomogram and myelogram taken during a July 1989 hospitalization failed to reveal any significant evidence of nerve root compression or herniated disc. The RO granted entitlement to an increased evaluation of 20 percent for lumbosacral strain when it issued a rating decision in August 1989. An April 1990 medical statement from a private physician notes the veteran had sustained a back injury while in service in 1970. Since that time he had had increasing pain and problems with his back, pain down his right leg, and weakness in his right leg with numbness. Recent diagnostic studies had revealed L4-5 posterior protrusion with involvement of the thecal sac as well as evidence of internal disc disruption at L5-S1. In his February 1991 letter he provided similar clinical information. Previous diagnostic testing had demonstrated evidence of L4-5 posterior protrusion with involvement of the thecal sac as well as evidence for internal disc disruption at L5-S1. The claimant had gone into increasing problems which affected his job and activities of daily living. A physical examination revealed mild right gastroc and EHL weakness, marked diminution of range of motion, dysthesias of the entire right leg, trace ankle jerks compared to 1+ and equal knee jerk. A December 1990 electrodiagnostic study were noted to be indicative of right L4 and L5 lumbar radiculopathy. It was the opinion of the physician that the veteran had had this condition for several years and had been limited in his activities. Additional correspondence from this private physician pertaining to the veteran's treatment is on file. A March 1991 VA examination concluded in a diagnosis of moderate to moderately severe lumbosacral strain, chronic, with acute exacerbation. A private physical therapist discussed the veteran's treatment regimen in her April 1991 letter on file. The claims file contains a letter dated in April 1991 from a private physician who reported having treated the veteran for disorders including low back pain. A private medical report dated in November 1991 shows that a lumbosacral series revealed a Schmorl's node formation at L4-5 and L5-S1, and facet changes particularly down at L5-S1, with spina bifida occulta. In an April 1992 letter the veteran's wife provided her knowledge and observations pertaining to the veteran's back problems which were described as longstanding in nature. The claims file contains a report of a favorable determination for disability benefits from the Social Security Administration dated in September 1992. A January 1994 VA examination concluded in a finding of degenerative arthritis of the lumbar spine. The Board's evaluation of the evidence of record permits the conclusion that the veteran's lumbosacral degenerative disease resulted from his service-connected lumbosacral strain. In this regard the Board observes that the veteran's service and post service clinical history is consistent and continuous with respect to symptomatology. The veteran sustained injury to his back in service and ever since the injury has been experiencing progressively worsening low back symptomatology. Symptomatic lumbosacral strain can produce progressive disc pathology and apparently did so in this case. As early as September 1976, a private physician observed that the veteran was already demonstrating complaints and findings suggestive of a herniated nucleus pulposus and demonstrated narrowing of the disc space at L5-S1 with increased lumbosacral angle. The subsequently dated medical evidence of record shows that while at times contradictory, the VA and non-VA diagnostic studies have shown progressive development of lumbosacral degenerative disc disease, a process initially recognized as early as four years subsequent to the appellant's separation from active service. The medical evidence of record is devoid of any other apparent etiological cause to account for the veteran's progressively developing disc disease other than the back injury reported in service. The post service medical record does show additional injury in 1986, but that was to the cervical or upper part of the spine. Furthermore, degenerative disc disease in the lumbar or lower part of the spine was already in progress and sufficiently advanced to permit the conclusion that the veteran's lumbosacral disc disease cannot satisfactorily be dissociated from the veteran's service-connected lumbosacral strain. The record demonstrates that it appears to be a further development of chronic low back impairment set in motion with the service incurred injury. For the foregoing reasons it is the determination of the Board that the record supports a grant of entitlement to service connection for lumbosacral disc disease as secondary to service-connected lumbosacral strain. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.310(a). ORDER Service connection for lumbosacral disc disease as secondary to service-connected lumbosacral strain is granted. REMAND In view of the above favorable determination granting entitlement to service connection for lumbosacral disc disease as secondary to service-connected lumbosacral strain, the Board is referring the issue of entitlement to an increased evaluation for lumbosacral strain with lumbosacral disc disease to the RO for further adjudication. If the benefit requested on appeal is not granted to the veteran's satisfaction, the RO should undertake all appropriate appellate procedures including issuance of a supplemental statement of the case prior to a return of the case to the Board for additional appellate review. BRUCE KANNEE 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. Regarding the issue of entitlement to service connection for lumbosacral disc disease as secondary to lumbosacral strain: NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Regarding the issue of entitlement to an increased evaluation for lumosacral strain, 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) (1994).