Citation Nr: 0005377
Decision Date: 02/29/00	Archive Date: 09/08/00

DOCKET NO. 98-04 951               DATE FEB 29, 2000

On appeal from the Department of Veterans Affairs Regional Office
in Boise, Idaho

THE ISSUES

1. Entitlement to service connection for depression.

2. Entitlement to an evaluation in excess of 40 percent for
service-connected, post- operative, degenerative disc disease of
the cervical spine, with a history of thoracic outlet syndrome.

3. Entitlement to an evaluation in excess of 20 percent for
service-connected degenerative disc disease of the lumbar spine.

4. Entitlement to an evaluation in excess of 10 percent for
service-connected degenerative disc disease of the thoracic spine.

5. Entitlement to a total disability evaluation based on individual
unemployability due to service-connected disabilities (TDIU).

REPRESENTATION 

Appellant represented by: Disabled American Veterans

WITNESSES AT HEARING ON APPEAL 

The veteran and T.T., a social worker 

ATTORNEY FOR THE BOARD 

J.M. Daley, Associate Counsel 

INTRODUCTION

The veteran had service from August 1974 to April 1991.

These matters are before the Board of Veterans' Appeals (Board) on
appeal from the Department of Veterans Affairs (VA) Regional Office
(RO), located in Boise, Idaho. In connection with this appeal the
veteran testified at a personal hearing before an RO Hearing
Officer in June 1998; a transcript of that hearing is associated
with the claims file.

The Board notes that during the pendency of this appeal the RO has
increased the evaluations assigned to the veteran's cervical,
thoracic and lumbar spines, effective December 1, 1996, the date of
receipt of her claim for increases. Although each increase
represented a grant of benefits, the veteran has not withdrawn her
increased rating claims pursuant to 38 C.F.R. 20.204(b), (c)
(1999). The United States Court of Appeals for Veterans Claims
(known as the United States Court of Veterans Appeals prior to
March 1, 1999) (hereinafter, "the Court") has held that a "decision
awarding a higher rating, but less than the maximum available

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benefit ... does not ... abrogate the pending appeal ...... AB v.
Brown, 6 Vet. App. 35, 38 (1993). Accordingly, the veteran's
increased rating claims continue before the Board.

The Board further notes that subsequent to the supplement
statements of the case of record, additional pertinent medical
evidence has been received. The veteran has submitted a written
waiver of her right to have that evidence initially considered by
the RO. 38 C.F.R. 20.1304(c) (1999).

FINDINGS OF FACT

1. The evidence is in relative equipoise with respect to the
question of whether the veteran has an acquired depressive disorder
that is related to service-connected disability.

2. The competent and probative evidence demonstrates that
degenerative disc disease of the lumbar spine is manifested by a
limitation of lumbar spine motion and subjective complaints of
pain, productive of no more than moderate disability.

3. The competent and probative evidence demonstrates that
degenerative disc disease of the thoracic spine results in
subjective complaints of pain and spasm, productive of no more than
mild disability.

CONCLUSIONS OF LAW

1. All benefit of the doubt being resolved in the veteran's favor,
a depressive disorder is proximately due to or the result of
service-connected degenerative joint disease of the cervical,
lumbar and thoracic spine. 38 U.S.C.A. 5107 (West 1991); 38 C.F.R. 
3.303, 3.310 (1999).

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2. The criteria for an evaluation in excess of 20 percent for
service-connected degenerative disc disease of the lumbar spine
have not been met. 38 U.S.C.A. 1155, 5107 (West 1991); 38 C.F.R.
4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5293 (1999).

3. The criteria for an evaluation in excess of 10 percent for
service-connected degenerative disc disease of the thoracic spine
have not been met. 38 U.S.C.A. 1155, 5107 (West 1991); 38 C.F.R.
4.71a, Diagnostic Code 5293 (1999).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Factual Background

The veteran served from August 1974 to April 1991, and was placed
by the military on the temporary disability retired list from April
to September 1991. She filed a claim for service-connected
compensation benefits in April 1991. At that time she provided a
list of claimed disorders; neither depression nor any other
psychiatric disorder was listed on that initial claim.

As a result of the veteran's lengthy service, extensive service
medical records are associated with the claims file. Service
records beginning in the 1970s reflect the veteran's complaints of
neck and back pain. In March 1977, cervical spine and neurologic
examinations were stated to be within normal limits. In October
1978, the veteran was examined for complaints to include numbness
and aching in both arms. The examiner opined that there was no
significant thoracic outlet syndrome and recommended exercises to
build up the veteran's tolerance to the job requirement of lifting
files and charts. After lifting a box in November 1978, the veteran
again complained of back pain. Examination revealed tenderness in
the lumbosacral area and a questionable decreased pinprick on the
left inner calf, the impression was left sciatica. Such was noted
to be resolving later in November. Service records indicate that
the veteran was placed on a lifting profile.

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Service records dated in September 1980 show complaints of cervical
spine pain. The veteran was evaluated in the mental health clinic
in April 1982; the impression was that she should come for help
coping effectively with financial issues and issues of child-
rearing and "as of now unknown" personal problems. The impression
in April 1982 was a situational reaction. The evaluation shows the
veteran's complaints of work problems and fear of doing physical
harm to her stepson. A May 1982 record shows a diagnosis of low
back strain with radiation down the left sciatic nerve. In May
1983, the veteran was treated for cervical radiculitis. Her
cervical spine motion was restricted in all planes and examination
showed spasm and tenderness. The veteran was seen for daily
physical therapy and in June 1983 her pain was noted to be
resolving, with only a "slightly limited" range of cervical motion.

A service medical record dated in April 1984 indicates that the
veteran experienced intermittent paresthesia with complaints of leg
weakness. A June 1984 record shows an impression of facet
syndrome/sciatica, and other June records indicate the presence of
spasm. In July 1985, the veteran complained of muscle spasm of the
neck and upper back, from which she had received temporary relief
with the use of medications in the past. The impressions were
cervical ribs and cervical spine muscle spasm. Consultation in
August 1985 was to rule out thoracic outlet syndrome. A thoracic
surgery clinic report concludes that the veteran had no objective
findings of neurologic or vascular compromise, but that thoracic
outlet syndrome could not be ruled out. It was also stated that
cervical radiculitis remained a possibility. Electromyography and
nerve conduction studies were normal. The assessment by
neurosurgery in October 1985 was cervical radiculopathy, etiology
unknown. Records reflect that the veteran underwent surgical fusion
at C5 to C6 in December 1985.

Records dated from April to June 1987 continue to show the
veteran's complaints of cervical and back pain. Diagnostic testing
conducted in September 1988 showed no evidence of nerve root
involvement in the entire spine. The impression in October 1988 was
positional numbness, without evidence of consistent neuropathy

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by examination or evidence of radiculopathy by diagnostic testing.
A record dated in March 1989 indicates that the veteran had
"positional" numbness of the left inner arm and "positional"
dropping of tools. In May 1989, the veteran experienced an
"[e]xacerbation of chronic [low back pain with left sciatica]."

Service medical records show that in September 1989, the veteran
reported for neurosurgery consultation with complaints of pain and
numbness in the left arm, facial numbness on the left side, and
constant low back pain. The examiner indicated that the left arm
pain and numbness were perhaps related to cervical spondylosis;
that the facial numbness was perhaps related to migraines; and that
the low back and left leg pain was not currently a major complaint.

A February 1990 report shows moderate levoscoliosis of the upper
thoracic spine and findings of degenerative disc disease at T4 to
T5. In August 1990 the veteran underwent mental status evaluation
by a psychologist. That note indicates that the veteran was upset
when a physician "would not comply with her request to take charge
of her medical care and to orchestrate a comprehensive treatment
regimen for her back problems." The veteran later submitted an
explanation,, stating that personal stresses led up to the event in
question. In August 1990, Minnesota Multiphasic Personality
Inventory (MMPI) was accomplished and suggested, in part, that the
veteran fit into a pattern of individuals for whom
"[h]ypochondriacal adjustment patterns are usually chronic and
quite resistant to change" and where "[c]haracterological elements
are suggested." Testing was also interpreted to be consistent with
individuals who were "often mildly depressed, pessimistic and
worried." The conclusion was that testing did not rule out the
presence of significant levels of pain or actual physiological
disease process, but that significant psychological factors
contributed to the veteran's medical presentation and that the
veteran was "quite committed to chronic pain and illness as a major
factor in her lifestyle and this can be expected to persist."

Service medical records include a report of physical evaluation
conducted in September 1990. The evaluation report includes the
veteran's history of back pain since 1975 or 1976, at which time
she injured her back. The veteran specifically

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related a history of persistent pain in the neck, thoracic and
lumbar areas. The evaluation report includes note that the veteran
underwent cervical diskectomy at the C5 to C6 level in 1985, and
that approximately seven months afterwards fell when a chair
collapsed, re-injuring her neck. The veteran specifically
complained of numbness in the left arm with a loss of grasp,
persistent pain in the mid-thoracic region; intermittent lumbar
pain; pain radiating to the posterior lateral thigh to the knee;
and numbness in the left foot. She was working as a training
monitor and complained that she was unable to fulfill all
activities due to pain.

Examination in September 1990 that in a standing position the
veteran's right shoulder, scapula and pelvis were tilted downward
as compared to the left. Lumbar flexion was "hands to toes" with 10
degrees extension and 20 degrees lateral bending. There was pain at
the lumbosacral junction. Pinprick discrimination was intact and
straight leg raising was negative. There was stated to be
percussion tenderness in the thoracic and lumbar spine without
radicular symptoms demonstrated. X-rays showed scoliosis of the
thoracolumbar spine. Computerized tomography (CT) showed no
herniated nucleus pulposus at T3 to T5. CT of the lumbar spine
revealed no discogenic disease. A bone scan showed findings
consistent with minimal mild degenerative processes. The clinical
impressions were post cervical diskectomy at C5 to C6 and spinal
somatic dysfunction secondary to mild degenerative changes. The
examiner noted that there were no demonstrable neurologic deficits.
The Standard Form 88 "Report of Medical Examination" dated in
September 1990 summarizes mild dextroscoliosis; a full range of
back motion; and mildly decreased lateral flexion and rotation of
the neck.

A report of the Physical Evaluation Board (PEB) shows diagnoses of
undifferentiated somataform disorder; no personality disorder
diagnosis, borderline and histrionic traits; post-cervical
diskectomy at C5 to C6; and spinal somatic dysfunction secondary to
mild degenerative changes. An orthopedic surgeon confirmed that the
veteran's complaints were in excess of what was expected from the
physical findings. The PEB report also notes that the veteran's
assessment what that she was unable to safely perform her duties,
but that that assessment was "different from her supervisor's
assessment...." A February 1991 recommendation

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sheet from the PEB shows a diagnosis of status post cervical
diskectomy at C5 to C6 associated with somataform pain disorder
with considerable social and industrial impairment. The remarks
include note that the veteran's "condition is felt to be more
closely related to a somataform disorder as [her] complaints are in
excess of what is expected from physical findings. [She] has had
extensive workups that have not produced a specific etiology for
the degree of pain experienced ... this condition limits [her]
ability to perform her duties and renders her unfit for further
active duty."

In June 1991 the veteran presented for VA evaluation with
complaints to include left upper and lower extremity numbness and
tingling, and back pain. She stated that her numbness and tingling
in the left arm were more frequent, but that her back pain had
decreased in frequency. She reported that during aggravation of her
back pain it took three to five days to regain her full mobility.
The veteran reported that she was unable to reach above her head
without difficulty. She stated that her back pain varied and
increased and decreased from time to time, with "most of the time
it's just a minor ache." Lumbosacral spine films were unremarkable.
Thoracic spine films showed only "very minimal" degenerative
changes stated to be compatible with the veteran's age. Cervical
spine films showed moderate narrowing at C6 and mild narrowing at
C6 to C7 with minimal bilateral neuroforaminal narrowing at C6 to
C7. Examination of the back revealed good lateral flexion and good
rotation without marked increase in paraspinal muscle spasm. The
veteran was able to bend forward and touch her toes without
difficulty. The examiner noted that the veteran described all of
her symptoms in elaborate detail and that there was no evidence of
psychosocial adjustment problems.

The June 1991 VA examination diagnoses were, in pertinent part,
thoracic outlet syndrome and status post herniated cervical
intervertebral disk surgery with good function on examination and
very slight limitation.

In a rating decision dated in September 1991, the RO established
service connection and assigned disability evaluations as follows:
degenerative disc disease of the cervical spine, diskectomy with
fusion at C5 to C6 and a history of thoracic outlet

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syndrome, evaluated as 20 percent disabling; degenerative joint
disease and claimed arthritis of the thoracic and lumbar spine,
evaluated as 10 percent disabling; a gastric ulcer with dyspepsia,
evaluated as 10 percent disabling- bronchitis, evaluated as 10
percent disabling; and, for the following, each assigned a zero
percent evaluation: residuals of left hip abductor muscle strain;
left wrist scars from ganglion cyst excision; third and fourth
metatarsal fractures of the right foot; residuals of injury to the
left foot; right kidney nephrolithiasis; euthyroid nodular goiter;
and chronic sinusitis. All disability evaluations and service
connection grants were made effective April 10, 199 1.

In November 1991, the veteran continued to complain of neck and
mid-thoracic and lumbar pain, with left upper extremity numbness.

In March and April 1992, the veteran complained of continued pain
in the back, specifically the upper thoracic area, and also
complained of left upper extremity numbness. One April 1992 note
includes the statement that the veteran was "fixated on this,"
referring to her mid-thoracic back pain of uncertain etiology. The
examining physician noted that such had not previously been the
veteran's main focus of attention and noted questionable functional
overlay. Electromyography/nerve conduction studies completed in
March/April 1992 were reported to be normal and interpreted as
showing no evidence of radiculopathy. The veteran was seen at the
pain clinic for chronic pain complaints from May to July 1992.

A report of an MRI dated in October 1992 indicates a loss of
cervical lordosis and fusion at C5 to C6; osteophyte formation at
C4 to C5 and C6 to C7, with moderate thecal sac effacement but
without evidence of spinal cord impingement; and mild
neuroforaminal narrowing; and normal lumbar spine findings.

In August 1993 the veteran presented for treatment at a military
facility with a history of having wrenched her back lifting
groceries. She complained of mid-back pain with some radiation to
her left leg and upper back. Examination revealed left paraspinous
tenderness without sciatic nerve tenderness. Straight leg raising
was

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negative and reflexes and strength were equal. The impression was
mechanical low back pain. VA records dated in August 1993 reflect
that the veteran was seen at the pain clinic; she complained that
she was no longer able to handle her job. Other August records
include note of psychiatric triage, at which time the veteran
expressed frustration with VA relevant to her complaints of back
pain and need for medication. A record dated in September 1993
indicates that range of motion of the veteran's neck was limited in
all directions by pain; use of a TENS unit was prescribed. One
entry notes that the veteran had probable fascia tightening with
excessive muscular tightness in the back and little pain tolerance.
The examining physician noted that the veteran did not appear
motivated to decrease the pain level. Another September record
reflects the use of antidepressant trial medication and notes the
veteran's depressed mood and chronic pain.

A VA outpatient record dated in October 1993 notes an assessment of
chronic unrelenting thoracic spine pain. X-rays showed mild
degenerative changes compatible with the veteran's age and minimal
scoliosis stated to "may well be positional." In an October 1993
note, the veteran asked her physician if she should continue
working in her labor intensive job because of her excruciating
thoracic pain. Another October record indicates a past medical
history of cervical and thoracic degenerative joint disease with
chronic pain, and depression.

A report of x-ray of the cervical spine dated in December 1993
indicates "complete obliteration of the C5 to C6 disc space and
significant narrowing of the disc spaces at C6 to C7 and C4 to C5"
and mild narrowing between C4 and C7 bilaterally at multiple
levels.

VA outpatient records dated in May 1994 indicate that the veteran
complained of tenderness to touch of her upper back, shoulders and
neck, and of intermittent numbness and tingling in her hands.

The report of a CT scan conducted in September 1994 indicates that
the veteran "does appear to have significant lesion at T3-4 which
causes definite cord distortion." The report also notes a scoliotic
curvature of the upper thoracic spine

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with the cord somewhat tethered to the inside of this curvature."
A cervical spine CT showed an "[a]pparently congenital narrow
central canal with less than normal CSF spaces ... [c]entral canal
stenosis is the most prominent feature at all levels scanned ...
somewhat accentuated by the degenerative spurring...." An October
1994 treatment note shows an assessment of chronic pain.

In February 1995, the veteran's claim was remanded to the RO for
further development, in particular, contemporary examination
evidence. VA examinations of the veteran's spine were conducted in
May, June and July 1995.

The May 1995 report of VA neurologic evaluation reflects that
sensation was normal in the arms and legs. Muscle strength testing
was fully intact, without focal muscle wasting, and the veteran's
gait, balance and coordination appeared normal.

The June 1995 report of a VA spine examination notes the veteran's
complaints relevant to her neck, hands, forearms, and left wrist,
to include pain between her shoulder blades, the thoracic area and
her left knee. The examiner noted that the veteran had limited
extension of the neck, but that rotation, lateral bending and
flexion were about normal, "done very deliberately and slowly."
Shoulder motion was normal. Hand strength and small muscle tone
were normal. The examiner found no evidence of hypothenar or thenar
atrophy of either hand. The examiner summarized diagnostic testing
showing increased arthritic changes in the cervical spine, dorsal
scoliosis and "no obvious reason for her thoracic pain as far as
the findings on the MRI report." The examiner suspected that the
veteran had " a mild degree of radiculitis from surgery and
possibly from her fall which flared it up." The examiner also
wondered if the veteran had some trigger points seen with a
myofascial or myositis type picture.

The July 1995 report of spinal examination indicates diagnoses of
post cervical fusion of C5 and C6 with degenerative, spinal
stenosis of the cervical spine, scoliosis of D2 to D7, and evidence
of inflammatory or post-traumatic findings at the mid-section. The
examiner noted that the veteran had off-and-on symptoms of thoracic
outlet syndrome. There was stated to be no real evidence of small
muscle

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atrophy. The examiner suspected anterior scalenus syndrome,
occurring primarily when the veteran held her shoulders in one
particular position. Nerve conduction testing completed in August
1995 was normal, without evidence of median or ulnar neuropathy,
myotrophy or radiculopathy, or thoracic outlet syndrome.

In an April 1996 decision, the Board rating in excess of 20 percent
evaluation for the veteran's cervical spine disability. The present
appeal stems from a subsequent rating decision of the RO denying
the veteran an increased disability rating for her cervical spine
and other disabilities.

A psychiatry text excerpt includes note that "[m]any of the
patients with chronic pain syndrome may be depressed, and the
chronic pain may be an important symptom of their depression."
Another psychiatry text includes note that "[a]mong [pain-related
variables], longer duration of pain was associated with increased
depression" and that [d]epression (DP) is a common comorbidity
associated with chronic pain...."

VA medical records dated in July and August 1996 reflect
hospitalization of the veteran for a C6 to C7 diskectomy.

In a letter dated in October 1996, M.T., Psy.D., reported that the
veteran had been followed as an outpatient for four years,
suffering from chronic pain and recurrent major depression. Dr.
M.T. indicated that contributing to the veteran's depression was
her struggle with chronic pain and stated that "[i]t is likely that
there is an interaction between her emotional state and her
physical condition with depression both resulting from the chronic
pain as well as being an exacerbating factor of the pain.

In a letter dated in October 1996, J.L., M.D., related treatment of
the veteran for myofascial pain several times in the Boise VA pain
clinic, treated with trigger point injections affording the veteran
temporary relief.

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Vet Center records reflect the veteran's complaints of cervical
pain and a loss of tactile sense, with a history of major
depression. The assessment in November 1996 by T.T., M.S.W., a Re-
adjustment Counseling Therapist, was chronic pain from multiple
injury to spine and major depression.

The veteran was seen at a VA facility in November 1996. X-rays at
that time indicate that the cervical spine was essentially the same
as in September 1996, showing severe disc space narrowing at C5 to
C6, C6 to C7, and mild to moderate narrowing at C4 to C5.
Psychology records dated in October 1996 indicate that the veteran
was "unable or unwilling to discuss the current cause of her
distress..." In December 1996, she reported feeling useless since
being unable to work.

In a letter dated in November 1996, T.T., M.S.W., noted referral of
the veteran in July 1996 for treatment of major depression, and
that the veteran had multiple symptoms of major depression to
include ongoing depressed mood, anhedonia, and reports of recurring
thoughts of suicide. T.T. noted that the veteran "appears to relate
her depressed mood to a number of associated issues, some ongoing,
including: chronic pain, inability to work or to obtain a doctor's
release to return to work, and her belief that she is "being jerked
around. These complaints are related to her physical disability,
which I believe is currently a service connected condition. Other
issues are relatively recent, such as the death of a grand
daughter. Still it appears that the primary source of the
depression is rooted in [the veteran's] military service and
medical discharge."

A letter from K.B., M.D., dated in December 1996, indicates
treatment of the veteran at the Boise VA mental health clinic for
several years for chronic pain and depression and that the
veteran's disability "remains intractable."

A January 1997 letter from M.M., M.D., associated with VA, reports
care of the veteran since July 1995 for severe degenerative joint
disease, cervical and lumbar, and osteoporosis secondary to
premature ovarian failure, due to which the veteran was "physically
very restricted. She also suffers from depression, a lot of it
probably related to her chronic pain due to the above condition."

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VA records dated in April 1997 indicate that the veteran was doing
better, that she would not pursue further surgery and that she had
chronic pain syndrome. In June 1997 there were impressions of
chronic pain and depression. A June 1997 emergency note includes a
past medical history of chronic back pain, subsequent to surgeries
in 1985 and 1996; scoliosis; osteoarthritis; osteoporosis; major
depression; and a prior history of bleeding peptic ulcer -disease.
At that time the veteran was treated for complaints of pain in her
thoracic area; the impression was costochondritis versus chronic
pain exacerbation versus cholecystitis. In July 1997, she received
trigger point injections for her back pain.

A June 1997 letter from the RO indicates that the veteran was
denied vocational rehabilitation benefits as "it is not reasonably
feasible for you to achieve a vocational goal, nor do we believe
that you can benefit from a program of independent living service."

A letter from K.L., M.D., dated in July 1997, notes that the
veteran had marked fibrocystic changes in the left breast more than
the right.

A VA examination was conducted in August 1997. Severe progressive
degenerative disc disease of the cervical, thoracic and lumbar
spine was diagnosed Examination revealed that the veteran was
"quite tender" over T2 to T4. Lumbar examination revealed good
posture without seeming muscle spasm. There was minimal tenderness
at L3. There was increased pain in the lumbar area with straight
leg raising. There was slight anesthesia of the fourth and fifth
toes on the let. Muscle strength seemed "alright." The veteran
appeared without her crutch, having lost it. The examiner indicated
that the veteran was totally disabled by the sum of her problems.

The claims file contains a Social Security Administration (SSA)
decision dated in July 1997, which indicates that the veteran was
disabled based on depression and degenerative joint disease in the
cervical and lumbar spine. The evaluation records note that the
veteran had depressive syndrome, as characterized by a loss of
interest;

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appetite disturbance; sleep disturbance; decreased energy; and
suicidal thoughts. The evaluation report indicates that such
resulted in a marked restriction of activities of daily living, a
moderate difficulty in maintaining social functioning, and
continual episodes of deterioration or decompensation in work or
work-like settings, causing the veteran to withdraw from that
situation.

In a statement dated in June 1998, Dr. J.L., of the VA Medical
Center, reported having cared for the veteran for a year and stated
that the veteran suffered from depression that was secondary to
chronic pain. Dr. J.L. opined that such pain "is derived from [the
veteran's] cervical spinal stenosis for which she has had surgeries
in the past."

An RO hearing was conducted in June 1998. The veteran complained of
muscle spasm on a daily basis in different areas of her back. She
reported a recent trip to the emergency room in June due to her
lumbar problem. She stated that any type of activity would bring on
spasm. She also reported daily pain on a scale of six-to- eight,
out of ten. She testified that she was unable to do activities such
as gardening or housecleaning and reported being able to walk only
across the parking lot. She reportedly used a cane and crutches as
her legs sometimes went out. The veteran stated that she was in
receipt of SSA benefits for her back and indicated that a 20
percent evaluation for her lumbar spine would make her happy. She
continued to express disappointment with her medical discharge from
service, relating that she would get turned down for jobs and thus
stopped applying. She testified that she was depressed due to her
inability to continue and complete her 20 years of service, and
also because of her pain. T.T., M.S.W., the veteran's therapist
also testified, stating that the veteran was not malingering and
that she suffered "significant depression related to pain ... also
depression related to her discharge from the service." T.T.,
M.S.W., also opined the veteran's depression played a significant
role in her inability to obtain or maintain employment.

In a rating decision dated in July 1998 the RO assigned a 20
percent evaluation for degenerative joint disease and claimed
arthritis of the lumbar spine; and a separate

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10 percent evaluation for degenerative joint disease of the
thoracic spine, effective December 1, 1996.

A VA examination of the veteran's spine was conducted in July 1998.
The examiner reviewed the claims file and noted that since
examination in August 1997 the veteran had had two episodes of
"especially severe pain," one in December 1997 and one in June
1998. The examiner noted that the veteran had been taking pain
medication since 1975 and that since 1991 she had been treated for
depression. The report states that "[a] major element in the
etiology of her depression has been considered to be her chronic
pain." The examiner noted that the veteran was able to walk from
her car to her house without her crutch, and part of the time
around her house without a crutch. The veteran reported having
people help her with activities such as doing her hair. The veteran
complained of more significant pain in the thoracic than in the
lumbar or cervical area, that cervical pain was accompanied by
radiating pain into the ulnar aspect of her hands, and that she had
minimal breast pain compared to her back problems.

Examination in July 1998 revealed good posture with a normal lumbar
curve. The veteran had flexion to 80 degrees, extension to zero
degrees, lateral flexion to 30 degrees bilaterally, and rotation to
20 degrees bilaterally. Straight leg raising produced posterior
thigh pain on the left at 40 degrees but no back pain. There was
evidence of cervical tenderness. The veteran was tender to thoracic
examination but not over the lumbar spine. The examiner summarized
that there was continuing severe cervical disability of about the
same degree as osteoporosis, with continuing severe disability of
the thoracic and lumbar spine. There was no disability of the
breasts.

A Social and Industrial Survey was completed in August 1998. The
report notes the veteran's background information and history, to
include her military history and multiple medical problems. That
report indicates that the veteran was on 100 percent SSA
disability. The veteran reported that she was limited due her back
pain and had extreme difficulty coping with lifestyle changes as a
result. The interviewer noted that "[t]he veteran decompensated at
this point in the interview,

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stating that she is unable to talk further about her limitations as
a result of her chronic pain and depression with the exception of
stating that she can't make it through a day without lying down. In
summary, the veteran's social and industrial functioning is
severely limited related to her chronic pain and depression."

In August 1998, a VA mental status examination was conducted. The
veteran reported feelings of depression, subjectively stated to
have begun during active duty and to have gotten worse with her
medical problems. She reported poor sleep, a poor appetite,
suicidal ideation, poor memory and trouble concentrating. The
examiner commented that "on the surface the veteran does meet the
criteria for major depressive disorder. The question has been
raised as to the etiology of the depression. This examiner cannot
render an opinion at this time as to cause ... It is this
examiner's clinical hunch that the veteran may have a chronic
personality disorder which predisposes her to depression and that
her depression that is personality based may have been accentuated
by her physical condition." After further review of the veteran's
medical history and claims file, as well as additional testing by
B.C., Ph.D., in September 1998, the examiner, in a September 1998
addendum, indicated that the veteran did not warrant an Axis I
diagnosis of depression but rather an Axis 11 diagnosis of
personality disorder not otherwise specified with borderline and
schizotypal features. A report of Dr. B.C.'s testing is attached
and concludes that the veteran had a mixed personality disorder
characterized by features of borderline (poor affective control,
exaggerated dependency needs, lack of interested in people, and a
suggestion of use of splitting as a defense,) as well as schizoid
or schizotypal features.

The claims file contains VA outpatient records dated from July 1997
to October 1998. Those records reflect that the veteran was on
hormone replacement therapy, subsequent to her hysterectomy. An
undated problem list indicates that she has a pain medication
contract and notes chronic pain from scoliosis. In December 1997
the veteran complained of mid-thoracic pain after lifting a heavy
bag. In February 1998, the veteran reported sleep difficulties due
to pain and indicated taking more Valium than recommended by her
physician. A February 1998 note states "[s]till unclear as to cause
of worsening pain."

- 17 - 

March 1998 testing reports note that the veteran's report of
sensation loss in her upper extremities was inconsistent with
testing and function. An April 1998 report indicates that the
veteran primarily complained of being unable to feel her hands.
That report references an evaluation in March. The physician noted
that there was "no evidence of emotional lability that was present
previously." She was able to perform upper extremity ranges of
motion, "[o]ccasional grimacing and volitional limitations with
testing were noted though they were not a predominant part of the
examination today." The impressions were significant
deconditioning; chronic pain syndrome; subjective complaints of
sensory and motor impairment, bilateral upper extremities; and
prior significant thoracic pain not shown on examination that date.
In June 1998, the veteran reported that her back "went out" that
afternoon. She complained of chronic pain. Examination revealed her
gait to be hesitant but normal. Outpatient notes dated in July and
August 1998 show impressions of "chronic pain, depression." In
September 1998, the veteran was seen at the pain clinic for repeat
trigger point injections in her right parascapular region. That
record indicates that despite the veteran's "multiple somatic
complaints and heavy psychological over-lay, she does possess
legitimate [left] hip pain..."

In a letter dated in March 1999, T.T., M.S.W., summarized the
veteran's history and evidence in the claims file, particularly the
report of VA examination conducted in August 1998, with its
September 1998 addendum. T.T. stated that when she spoke with the
August/September 1998 VA examiner he did not recall having reviewed
material that he had previously deemed necessary to clarify the
"root of the depression," and that the September 1998 psychological
evaluation conducted by Dr. B.C. did not include reference to a
depression scale. T.T. expressed concern with the instructions
provided to Dr. B.C. in connection with the requested psychological
evaluation, and stated that if Dr. B.C. was asked to examine the
veteran for a personality disorder and not depression it would make
sense that he did not comment upon mood. T.T. related that the VA
psychiatric examiner had verbally indicated that the veteran had a
mixed personality disorder with depressed features. T.T. reported
being unable to separate the veteran's chronic pain from her
depressed mood. T.T. submitted records dated in November 1996 from
the Vet Center reflecting the veteran's complaints of sleep
disturbance, a poor appetite,

- 18 -

suicidal and homicidal thoughts and dissociative episodes. The Axis
I diagnosis was major depression, with the precipitating Axis IV
stressor noted as discharge from the Air Force resulting in a loss
of status and a loss of sense of competence. Also submitted was the
veteran's September 1996 account of a 1984 vacation and the
interaction between her, her spouse and her children at that time.
Also attached are progress notes dated from November 1996 to March
1999, which include note of the veteran's depression, anxiety and
panic attacks.

In a letter dated in April 1999, Dr. B.C. provided T.T., M. S.W..
with an explanation relevant to "the role of depression and
physical disability in association with" the September 1998 VA
examination of the veteran. Dr. B.C. indicated that he had been
asked to clarify whether the veteran's personality disorder
features contributed to her clinical presentation and he concluded
in the affirmative. Dr. B.C. stated that his former conclusion
implied that the veteran's capacity to cope with "the emotional
distress (depression) that stems from her chronic physical
disabilities is apt to be more complicated and problematic for
her."

Service Connection

Pertinent Criteria

In order to establish service connection for a claimed disability
the facts must demonstrate that a disease or injury resulting in
current disability was incurred in the active military service or,
if pre-existing active service, was aggravated therein. 38 U.S.C.A.
1110, 1131 (West 1991); 38 C.F.R. 3.303 (1999). Personality
disorders and mental deficiency as such are not diseases or
injuries within the meaning of applicable legislation. 38 C.F.R.
3.303(c); 4.9 (1999).

Where a veteran served for at least 90 days during a period of war
or after December 31, 1946, and certain chronic diseases, such as
psychoses, become manifest to a degree of 10 percent within one
year from the date of termination of such service, such diseases
shall be presumed to have been incurred in service, even

- 19 -

though there is no evidence of such diseases during the period of
service. 38 U.S.C.A. 1101, 1112, 1113 (West 1991); 38 C.F.R. 3.307,
3.309 (1999).

Where there is a chronic disease shown as such in service or within
the presumptive period under 38 C.F.R. 3.307 so as to permit a
finding of service connection, subsequent manifestations of the
same chronic disease at any later date, however remote, are service
connected, unless clearly attributable to intercurrent causes. 38
C.F.R. 3.303(b). This rule does not mean that any manifestation in
service will permit service connection. To show chronic disease in
service there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time, as distinguished
from merely isolated findings or a diagnosis including the word
"chronic." When the disease identity is established, there is no
requirement of evidentiary showing of continuity. When the fact of
chronicity in service is not adequately supported, then a showing
of continuity after discharge is required to support the claim. 38
C.F.R. 3.303(b).

The chronicity provision of 38 C.F.R. 3.303(b) is applicable where
evidence, regardless of its date, shows that a veteran had a
chronic condition in service and still has such condition. Such
evidence must be medical unless it relates to a condition as to
which, under the Court's case law, lay observation is competent. If
the chronicity provision is not applicable, a claim may still be
well grounded if (1) the condition is observed during service, (2)
continuity of symptomatology is demonstrated thereafter and (3)
competent evidence relates the present condition to that
symptomatology. Savage v. Gober, 10 Vet. App. 489 (1997); see also
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (where the issue
involves questions of medical diagnosis or an opinion as to medical
causation, competent medical evidence is required).

Service connection is also warranted for disability proximately due
to or the result of a service-connected disorder and where
aggravation of a nonservice-connected disorder is proximately due
to or the result of a service-connected disability. In the case of
aggravation, such secondary disorder is compensable only to the
degree of disability over and above the degree of disability which
would exist without such

- 20 -

aggravation. 38 C.F.R. 3.310(a); Allen v. Brown, 7 Vet. App. 439,
448, 449 (1995).

Service connection may also be granted for a disease diagnosed
after discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in service. 38
C.F.R. 3.303(d).

"[A] person who submits a claim for benefits under a law
administered by the Secretary shall have the burden of submitting
evidence sufficient to justify a belief by a fair and impartial
individual that the claim is well grounded." 38 U.S.C.A. 5107(a);
Carbino v. Gober, 10 Vet. App. 507 (1997); Anderson v. Brown, 9
Vet. App. 542, 545 (1996). A well-grounded claim is "a plausible
claim, one which is meritorious on its own or capable of
substantiation. Such a claim need not be conclusive but only
possible to satisfy the initial burden of [section 5107(a)]."
Murphy v. Derwinski, 1 Vet. App. 79, 81 (1990). In Tirpak v.
Derwinski, 2 Vet. App. 609, 611 (1992), the Court held that a claim
must be accompanied by supportive evidence and that such evidence
"must 'Justify a belief by a fair and impartial individual' that
the claim is plausible."

Generally, for a claim to be well grounded, there generally must be
(1) a medical diagnosis of a current disability; (2) medical or, in
certain circumstances, lay evidence of in-service occurrence or
aggravation of a disease or injury; and (3) medical evidence of a
nexus between an in-service injury or disease and the current
disability. See Anderson, supra,- Caluza v. Brown, 7 Vet. App. 498,
506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). In any
case, a claim for service- connection for a disability must be
accompanied by evidence which establishes that the claimant
currently has the claimed disability. Absent proof of a present
disability there can be no valid claim. See, e.g., Gilpin v. West,
155 F.3d 1353 (Fed. Cir. 1998); Degmetich v. Brown, 104 F.3d 1328
(Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).

- 21 -

Medical evidence is required to prove the existence of a current
disability and to fulfill the nexus requirement. Lay or medical
evidence, as appropriate, may be used to substantiate service
incurrence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994);
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).

In a claim of secondary service connection, the question of the
relationship of one condition to another is not susceptible to
informed lay observation and thus, for there to be credible
evidence of such a relationship, medical evidence is required.
Reiber v. Brown, 7 Vet. App. 513, 516 (1995) (requiring medical
evidence showing a relationship between a fall due to a service-
connected left ankle disability and claimed secondary service
connection for a back condition).

For the purposes of determining whether this claim is well
grounded, the Board must presume the truthfulness of the evidence,
"except when the evidentiary assertion is inherently incredible or
when the fact asserted is beyond the competence of the person
making the assertion." King v. Brown, 5 Vet. App. 19, 21 (1993).

If a claim is not well grounded, the application for service
connection must fail, and there is no further duty to assist the
veteran in the development of his claim. 38 U.S.C.A. 5107, Murphy
v. Derwinski, 1 Vet. App. 78 (1990).

Analysis

In this case, the veteran's claim of entitlement to service
connection for depression is well grounded in that there is
competent opinion from medical professionals to the effect that the
veteran has depression related pain resulting from her service-
connected spinal disabilities. See 38 C.F.R. 3.310 and Reiber,
supra. The Board is also satisfied that all relevant and available
facts have been properly developed. The veteran has been examined
by the VA in connection with her claim and has not identified any
additional, relevant evidence that has not been requested or
obtained. The Board finds all relevant evidence necessary for an
equitable disposition of the

- 22 -

appeal has been obtained, and no further assistance is required to
comply with the duty to assist mandated by 38 U.S.C.A. 5107.

The evidence in this case does not show that the veteran was
diagnosed with a depressive disorder during her period of service.
In fact, psychological evaluation in service showed only
impressions of situational reaction and suggested "hypochondriacal
adjustment patterns" and "characterological elements." Evaluation
reports, to include the report of the PEB, do not reflect a
diagnosed depressive disorder. Nor did the veteran claim such at
the time of her initial claim for VA compensation benefits. Rather,
her claim for depression came later, at which time she argued that
it had developed as a result of her medical discharge and/or
secondary to the chronic pain she experienced as a result of her
service- connected disabilities, mainly her spinal disorders.

The Board notes that the claims file contains extensive treatment
records that mention the veteran's depressed mood and depression
symptoms and chronic pain. Some progress and treatment notes
contain the word "depression" as among the veteran's noted
problems. Also, the Board recognizes the submitted medical texts
pertinent to the rise of depression coincident with chronic pain.
Finally, a number of healthcare professionals, to include M.D.'s,
Ph.D.'s, and M.S.W.'s, have provided opinions that the veteran has
depression secondary to chronic pain resulting from her spinal
disabilities.

There is no question that the veteran suffers from depression. The
question raised by the record is whether such depression is a
symptom and a factor of the veteran's identified personality
disorder, for which service connection is not in order, see 38
C.F.R. 3.303, 4.9; or, whether she meets the diagnostic criteria
for an acquired depressive disorder, which is service-connectable
if shown to have been incurred as a result of service or service-
connected disability. See 38 C.F.R. 3.303, 3.310. The evidence
referenced in the above paragraph supports the veteran's contention
that she has depression due to her pain, but leaves unclear the
question of whether depression as discussed in the varying records
is a symptom or diagnostic entity.

23 -

In the veteran's favor is the SSA decision awarding benefits based
on depression and spinal problems. That decision is based, in part,
on a report of psychiatric evaluation finding that the veteran
exhibited at least four of the symptoms requisite for a diagnosis
of an affective disorder. Also in the veteran's favor is the
opinion of T.T., M.S.W., who provided an Axis I diagnosis of major
depression after ongoing treatment and evaluation of the veteran.

Against the veteran's claim is the report of August 1998 VA
examination, showing that the VA examiner initially opined that the
veteran did meet the diagnostic criteria for a depressive disorder
on the surface, but revised that opinion and concluded that based
on a review of psychological testing the veteran had a personality
disorder and did not warrant an Axis I diagnosis of depression.

The Board notes the dialogue between T.T., M.S.W., and Dr. B.C.,
the psychologist who conducted the September 1998 testing. Their
correspondence reflects a continued lack of clarity as to whether
the veteran's depression is considered adequate by medical
professionals to constitute an acquired psychiatric disorder as
opposed to a trait of a personality disorder or a symptom, not
attributable to any diagnosed psychiatric disorder. Such lack of
clarity is further complicated by evidence suggesting that the
veteran's personality disorder has predisposed her to depression.

Also significant in this discussion are the aforementioned opinions
by varying health care professionals stating that the veteran has
depression related to the pain caused by her service-connected
disabilities. Those individuals did not specify whether the veteran
met the diagnostic criteria for any depressive disorder, just
concluding that she has "depression."

Upon reviewing the evidentiary record, the Board finds that there
is an approximate balance of positive and negative evidence
regarding the merits of the issue. See Gilbert v. Derwinski, 1 Vet.
App. 49, 53 (1990. Thus, the Board will resolve any doubt in the
veteran's favor and conclude that service connection for depression
is

- 24 - 

warranted as a disability causally related to her service-connected
spinal disorders. See 38 C.F.R. 3.310(a).

Increased Ratings

Pertinent Criteria

Disability evaluations are determined by the application of VA's
Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4
(1999). The percentage ratings contained in the Schedule represent,
as far as can be practicably determined, the average impairment in
earning capacity resulting from diseases and injuries incurred or
aggravated during military service and the residual conditions in
civil occupations. 38 U.S.C.A. 1155; 38 C.F.R. 4.1 (1999). In
determining the disability evaluation. the VA has a duty to
acknowledge and consider all regulations which are potentially
applicable based upon the assertions and issues raised in the
record and to explain the reasons and bases for its conclusion.
Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing
regulations include 38 C.F.R. 4.1, 4.2 (1999), which require the
evaluation of the complete medical history of the veteran's
condition.

Where entitlement to compensation has already been established and
an increase in the disability rating is at issue, the present level
of disability is of primary concern. Francisco v. Brown, 7 Vet.
App. 55, 58 (1994). 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 for that rating. Otherwise the lower rating will be
assigned. 38 C.F.R. 4.7 (1999). All benefit of the doubt will be
resolved in the veteran's favor. 38 C.F.R. 4.3 (1999).

Disability of the musculoskeletal system is the inability to
perform normal working movement with normal excursion, strength,
speed, coordination, and endurance, and that weakness is as
important as limitation of motion, and that a part which becomes
disabled on use must be regarded as seriously disabled. However, a
little-used part of the musculoskeletal system may be expected to
show evidence of disuse, through

- 25 -

atrophy, for example. 38 C.F.R. 4.40. The provisions of 38 C.F.R.
4.45 and 4.59 contemplate inquiry into whether there is
crepitation, limitation of motion, weakness, excess fatigability,
incoordination, and impaired ability to execute skilled movements
smoothly, and pain on movement, swelling, deformity, or atrophy of
disuse. Instability of station, disturbance of locomotion, and
interference with sitting, standing, and weight-bearing are also
related considerations. It is the intention of the rating schedule
to recognize actually painful, unstable, or mal-aligned joints, due
to healed injury, as at least minimally compensable.

38 C.F.R. 4.71a, Diagnostic Code 5285 (1999) contemplates
disability arising from residuals of vertebral fracture. Under this
code, with cord involvement, bedridden or requiring long leg
braces, a 100 percent disability rating is assigned. Without cord
involvement; abnormal mobility requiring neck brace (jury mast), a
60 percent disability rating is assigned. In other cases, rating is
in accordance with definite limited motion or muscle spasm, adding
10 percent for demonstrable deformity of the vertebral body.

Limitation of motion of the dorsal spine warrants a maximum 10
percent evaluation where such limitation is moderate or severe
under 38 C.F.R. 4.71a, Diagnostic Code 5291 (1999).

Slight limitation of the lumbar spine is evaluated as 10 percent
disabling; moderate limitation is evaluated as 20 percent disabling
and severe limitation is evaluated as 40 percent disabling. 38
C.F.R. 4.71a, Diagnostic Code 5292 (1999).

38 C.F.R. 4.71a, Diagnostic Code 5293 pertains to intervertebral
disc syndrome. Under that code, a zero percent evaluation is
applied to a post-operative, cured condition. A 10 percent
evaluation requires mild symptoms. A 20 percent evaluation is for
moderate symptoms and recurring attacks. A 40 percent evaluation is
applied for severe symptoms characterized by recurring attacks with
intermittent relief. A 60 evaluation is the maximum evaluation for
this diagnostic code, requiring evidence of a pronounced condition,
with persistent symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable

muscle spasm, absent ankle jerk, or other neurological findings
appropriate to the site of the diseased disc, with little
intermittent relief.

Lumbosacral strain is evaluated under 38 C.F.R. 4.71a, Diagnostic
Code 5295 (1999). With muscle spasm on extreme forward bending,
loss of lateral spine motion, unilateral, in a standing position,
a 20 percent evaluation is warranted. Where symptoms are severe
with listing of the whole spine to the opposite side; positive
Goldthwaite's sign, marked limitation of forward bending in a
standing position, a 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, a maximum 40
percent evaluation is warranted.

38 C.F.R. 4.71a, Diagnostic Code 5010 (1999) applies to traumatic
arthritis and provides that such is evaluated based on limitation
of motion of the affected part, like degenerative arthritis. See 38
C.F.R. 4.71a, Diagnostic Code 5003 (1999). Where the limitation of
motion of the specific joint or joints involved is noncompensable,
under the applicable diagnostic codes, a rating of 10 percent is
warranted where arthritis is shown by x-ray and where limitation of
motion is objectively confirmed by evidence of swelling, muscle
spasm, or painful motion.

The Court, in DeLuca v. Brown, 8 Vet. App. 202 (1995), held that
where evaluation is based on limitation of motion, the question of
whether pain and functional loss are additionally disabling must be
considered. See 38 C.F.R. 4.40, 4.45, 4.59. Consideration of
functional loss due to pain is not required when the current rating
is the maximum disability rating available for limitation of
motion. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The VA
Office of the General Counsel has issued a precedent opinion that
appears to mandate such consideration even where the veteran is in
receipt of the maximum percentage under the diagnostic codes
pertaining to limitation of motion. See VAOPGCPREC 36-97 (December
12, 1997).

Pyramiding, that is the evaluation of the same disability, or the
same manifestation of a disability, under different diagnostic
codes, is to be avoided when rating a

- 27 - 

veteran's service-connected disabilities. 38 C.F.R. 4.14 (1999). It
is possible for a veteran to have separate and distinct
manifestations from the same injury which would permit rating under
several diagnostic codes. The critical element in permitting the
assignment of several ratings under various diagnostic codes is
that none of the symptomatology for any one of the conditions is
duplicative or overlapping with the symptomatology of the other
condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

Initial Matters

In general, allegations of increased disability are sufficient to
establish well- grounded claims seeking increased ratings.
Proscelle v. Derwinski, 2 Vet. App. 629 (1992). In the instant
case, there is no indication that there are additional records that
have not been obtained and which would be pertinent to the lumbar
and thoracic claims. The claims file contains records of VA and
private treatment and evaluation, as well as multiple reports of VA
examination of the veteran's spine. She has not identified further
relevant evidence that has not been requested or obtained. Thus, no
further development is required in order to comply with VA's duty
to assist mandated by 38 U.S.C.A. 5107(a).

Also, pertinent to each area of the spine discussed below, the
Board notes that the words "slight," "moderate" and "severe" as
used in the various diagnostic codes are not defined in the
Schedule. Rather than applying a mechanical formula, the Board must
evaluate all of the evidence to the end that its decisions are
"equitable and just." 38 C.F.R. 4.6 (1999). It should also be noted
that use of terminology such as "mild," etc. by VA examiners and
others, although an element of evidence to be considered by the
Board, is not dispositive of an issue. Rather, all evidence must be
evaluated in arriving at a decision regarding an increased rating.
38 C.F.R. 4.2, 4.6 (1999).

- 28 - 

Analysis

Thoracic Spine

The veteran is currently assigned a 10 percent evaluation for her
thoracic spine disability. That 10 percent evaluation is the
maximum available for the thoracic spine under 38 C.F.R. 4.71a,
Diagnostic Code 5291 pertaining to limitation of motion, or under
38 C.F.R. 4.71a, Diagnostic Codes 5003, 5010, pertaining to
arthritis.

The RO has evaluated the veteran as 10 percent disabled by virtue
of her thoracic symptomatology using 38 C.F.R. 4.71a, Diagnostic
Code 5293. The Board recognizes that diagnostic test reports show
impressions of degenerative disc disease at multiple levels of the
spine, including the thoracic spine. In that regard, the Board
notes that service records are consistent in noting no evidence of
radiculopathy or other neurologic impairment resulting from
thoracic spine disease. Rather, such records show subjective
complaints of pain with retention of a full range of back motion as
of September 1990, and, in connection. with the PEB, service
personnel noted that objective work-ups had not revealed a specific
etiology for the degree of pain expressed by the veteran. Service
records instead note a somataform pain disorder.

Post-service records continue to suggest functional overlay in the
degree of pain expressed by the veteran relevant to her thoracic
spine. In April 1992 the examiner noted such and referenced testing
negative for radiculopathy. October 1993 notes indicate that the
veteran's symptoms might be "positional," with testing showing only
mild degenerative changes stated to be consistent with the
veteran's age. A CT in September 1994 did reveal what appeared to
be a lesion in the thoracic spine causing cord distortion; however,
testing in June 1995 was again stated to show "no obvious reason"
for thoracic spine pain. The grant of SSA benefits is based on
disability of the cervical and lumbar spine, not the thoracic
spine. An April 1998 treatment record notes that significant
thoracic pain was not shown on examination, and examination in July
1998 showed only subjective thoracic

- 29 -

tenderness. In short, the competent evidence of record does not
show spasm, neurologic impairment, or other symptomatology beyond
complaints of pain that has been attributed to the thoracic
disability. Thus, despite several notations in medical reports that
the veteran suffered from "severe" disability of each area of her
spine, there is no competent evidence of objective pathology beyond
pain resulting from degeneration. In particular, there is no
evidence of neurologic impairment of the thoracic spine. As such,
no more than a 10 percent evaluation for mild disc syndrome
manifested by pain is warranted. See 38 C.F.R. 4.71a, Diagnostic
Code 5293.

Consideration has also been given to the potential application of
the various provisions of 38 C.F.R. Parts 3 and 4 (1998), whether
or not they were raised by the veteran, as required by Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). However, the Board finds no
basis upon which to assign a higher disability evaluation.
Specifically, the competent evidence does not show that the
veteran's thoracic spine is ankylosed; that she suffered any
fracture of the thoracic spine with or without spinal cord
involvement; or that she has symptomatic thoracic spine scarring to
warrant consideration under 38 C.F.R. 4.71a, 4.118, Diagnostic
Codes 5285, 5288, 7803, 7804, 7805 (1999). See 38 C.F.R. 4.14.
Furthermore, as the veteran's thoracic spine is evaluated at the
maximum for limitation of motion, consideration of additional
functional loss is not warranted. Johnston v. Brown, 10 Vet. App.
80, 85 (1997).

Lumbar Spine

A 20 percent evaluation is currently assigned for the veteran's
lumbar spine disability, under 38 C.F.R. 4.71a, Diagnostic Code
5293. To warrant assignment of a 40 percent evaluation under that
code, there would have to be competent and probative evidence of
severe, recurring attacks of lumbar disc disease symptoms such as
sciatic neuropathy, absent ankle jerk or other neurologic findings,
with only intermittent relief. An MRI of the lumbar spine in
October 1992 was normal. August 1993 records suggest mechanical low
back pain and not sciatic involvement. More recent examination
reports or treatment records do not document sciatic

- 30 - 

neuropathy or severe lumbar symptomatology. In fact, there is no
objective pathologic or diagnostic evidence of sciatica or
neurologic symptoms attributable to disc disease of the lumbar
spine to warrant an increased evaluation under Diagnostic Code
5293.

Moreover, the competent evidence of record shows no severe
limitation of lumbar motion or other symptomatology resulting in
more than moderate lumbar disability. A review of the evidentiary
record shows that the veteran's complaints in connection with
treatment and/or examination focus mainly on the thoracic and
cervical portions of her spine. In June 1991 she was able to touch
her toes without difficulty. Her gait, coordination and balance
were normal in May 1995, without evidence of weakness, muscle
wasting or radiating symptomatology in the lower extremities. VA
examination in August 1997 showed good lumbar posture, without
evidence of muscle spasm. The examiner characterized any tenderness
as "minimal" and stated that muscle strength seemed all right. And,
at the time of most recent examination of the lumbar spine, in July
1998, there was no evidence of lumbar spine tenderness. The
examiner's characterization of the lumbar spine disability as
severe at the time of that examination, and other notations of
"severe" lumbar problems appears to be based on diagnostic evidence
and/or a history of severe spine problems. Moreover, the veteran
has stated that she would be satisfied with a 20 percent
evaluation, the evaluation currently assigned to her disability.
The medical findings in this case do not support assignment of more
than a 20 percent evaluation as there is no competent evidence of
a severe loss of lumbar spine motion, a loss of unilateral spine
motion, listing, lumbar spasm or sciatic neuropathy. See Diagnostic
Codes 5292, 5293, 5295. The Board also notes that the veteran's
currently assigned 20 percent evaluation is based on consideration
of limitation of lumbar motion with pain, and diagnostic evidence
of degenerative changes. As such, no separate evaluation is
warranted for arthritis, or based on consideration of 38 C.F.R.
4.40, 4.45, 4.59. See 38 C.F.R. 4.14. With respect to the latter,
the Board also points to ample evidence of functional overlay and
claimed symptomatology not consistent with and/or supported by
objective medical evidence. As such, no higher evaluation for
lumbar disability is warranted based on the evidence of record.

- 31 -

Consideration has also been given to the potential application of
the various provisions of 38 C.F.R. Parts 3 and 4 (1998), whether
or not they were raised by the veteran, as required by Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). However, the Board finds no
basis upon which to assign a higher disability evaluation.

ORDER

Service connection for depression is granted.

An evaluation in excess of 20 percent for service-connected
degenerative disc disease of the lumbar spine is denied.

An evaluation in excess of 10 percent for service-connected
degenerative disc disease of the thoracic spine is denied.

REMAND

The veteran's service connected disabilities are degenerative disc
disease of the cervical spine, evaluated as 40 percent disabling;
degenerative disc disease of the lumbar spine, evaluated as 20
percent disabling; degenerative disc disease of the thoracic spine,
evaluated as 10 percent disabling; a gastric ulcer with dyspepsia,
evaluated as 10 percent disabling; fibrocystic breast disease,
evaluated as 10 percent disabling; bronchitis, evaluated as 10
percent disabling; and left hip abductor muscle strain; scars on
the left wrist from excision of a ganglion cyst; residuals of
fracture to the third and fourth metatarsals of the right foot;
residuals of injury to the left foot; left kidney nephrolithiasis;
a euthyroid nodular goiter; and sinusitis, each evaluated as zero
percent disabling. Her combined rating is 70 percent. In addition,
the Board has granted service connection for depression, which will
have to be rated initially by the RO. In view of the percentage
ratings already in effect, the schedular criteria for TDIU have
been met. 38 C.F.R. 4.16(a). However, the

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veteran's claim of entitlement to TDIU is inextricably intertwined
with her appeal for an increased evaluation for the cervical spine
disability. Prior to adjudication of the increased rating issue,
further development is necessary. In that regard the Board notes
that the veteran has recently submitted records reflecting cervical
spine surgery in December 1999. Although she has waived her right
to initial RO consideration of such evidence, see 38 C.F.R.
20.1304(c) (1999), the post- operative status of her cervical spine
must be assessed. Thus, additional examination is warranted to
ensure proper adjudication of her claim. Hyder v. Derwinski, 1 Vet.
App. 221 (1991); Littke v. Derwinski, 1 Vet. App. 90 (1990).
Moreover, additional development is necessary for the RO to rate
the now service- connected depression and to consider the
industrial impairment resulting from depression and its role in the
veteran's ability to maintain gainful employment is warranted.

The medical records on file reflect, in part, that when the veteran
was seen for a neurologic consultation in October 1991 she was
noted to be "very emotionally unstable." Although she reported an
inability to use her left upper extremity and thus to find work and
that she would tell prospective employers that she was medically
discharged from service due to "inability to lift any objects of
any weight whatsoever because her arm will give way," the examiner
found good strength in the upper extremity and identified no
atrophy or fasciculations, and no loss of sensory modalities. Thus
the examiner indicated that there was a considerable amount of
functional overlay.

The record further reflects that in March 28, 1996, it was noted
that frequent movement of heavy equipment at work had aggravated
the veteran's spinal condition, and that surgery on her cervical
disc would allow her to be employed without significant
limitations. VA medical records show that in mid- 1996 she
underwent a C6 to C7 diskectomy. In December 1999 the veteran
underwent additional cervical spine surgery, as reflected in the
most recent medical evidence.

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That evidence also notes that the veteran "has a long-standing
history of narcotic dependence. She was notably on approximately
100 mg of morphine sulfate a day." The veteran's narcotic
dependence was noted to make post-operative pain control "a major
issue."

In view of the veteran's recent surgery and the Board's grant of
service connection for a psychiatric disorder, this case is
remanded to the RO for the following:

1. The RO should ensure that all records of VA treatment and
evaluation of the veteran's depression and cervical spine
disability to date are associated with the claims file. The RO
should also provide the veteran opportunity to identify private
medical evidence pertinent to those disabilities and/or her ability
to maintain gainful employment. With her consent, the RO should
obtain any identified records.

2. The RO should arrange for examination of the veteran by a panel
to include a psychiatrist, a neurologist and an orthopedist. If
possible each should be board-certified and not a current or former
treating physician of the veteran. The claims folder and a separate
copy of this remand should be made available to each of the
examiners and reviewed by each.

The psychiatrist is requested to comment on the nature and severity
of symptoms attributable to depression and to provide an opinion as
to the limitations and level of functional impairment resulting
from such depression. Any impairment that results from the noted
narcotic dependence or from any personality disorder if found must
not be considered.

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The orthopedic and neurologic examiners are requested to identify
the nature, frequency, duration and severity of all manifested
orthopedic and neurologic symptoms attributable to the veteran's
cervical spine disability, to include comment as to any resulting
functional loss. In view of evidence in the file suggesting that
there may be a non-organic component to the veteran's cervical
spine complaints, the panel is specifically requested to assess any
somatic dysfunction/functional overlay/exaggeration or the like,
along with the effect of the veteran's noted narcotics dependence,
and provide an opinion as to whether the physical limitations
claimed by the veteran are consistent and proportionate to the
pathology shown on examination and in the evidence of record. It is
essential that the medical board identify findings that do or do
not support the veteran's complaints and reported limitations, in
view of, for example, her admission that she informs potential
employers that she is incapable of lifting any weight above her
head.

The three examiners are additionally requested to comment jointly,
if feasible, on the impact of the veteran's service-connected
physical and psychiatric disabilities, in combination, on her
ability to maintain gainful employment, specifically setting out
the occupational limitations resulting from her disabilities.
Again, any work impairment resulting directly or otherwise from her
narcotic dependence should not be considered. The veteran's
credibility and that of the evidence should be considered in
reaching a conclusion.

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3. After the development requested above has been completed to the
extent possible, the RO should review the record to ensure that
such is adequate for appellate review. The RO is advised that where
the remand orders of the Board or the Court are not complied with,
the Board errs as a matter of law when it fails to ensure
compliance, and further remand will be mandated. Stegall v. West,
11 Vet. App. 268 (1998). After any indicated corrective action has
been completed, the RO should assign a disability rating to the
veteran's now service-connected depression. The RO should
thereafter re-adjudicate the veteran's claims of entitlement to an
increased rating for cervical spine disability and entitlement to
TDIU benefits. If any benefit sought on appeal remains denied the
veteran and her representative should be furnished a supplemental
statement of the case and given the opportunity to respond thereto.

Thereafter, the case should be returned to the Board, if in order.
The Board intimates no opinion as to the ultimate outcome of this
case. The veteran need take no action unless otherwise notified.
The veteran has the right to submit additional evidence and
argument on the matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment by the RO. The
law requires that all claims that are remanded by the Board or by
the Court for additional development or other appropriate action
must be handled in an expeditious manner. See The Veterans'
Benefits Improvements Act of 1994, Pub. L. No. 103-446, 302, 108
Stat. 4645, 4658 (1994), 38 U.S.C.A. 5101 (West Supp. 1996)
(Historical and Statutory Notes). In addition, VBA's ADJUDICATION
PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that

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have been remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.

JANE E. SHARP 
Member, Board of Veterans' Appeals