Citation Nr: 0006565 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-14 023A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a right foot drop disorder as secondary to the service-connected arthritis of the dorso-lumbar spine. 2. Entitlement to an increased evaluation in excess of 40 percent for arthritis of the dorso-lumbar spine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Spear Ethridge, Associate Counsel INTRODUCTION The veteran had active duty from October 1942 to April 1943 in the United States Coast Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating actions by the Los Angeles, California Regional Office (RO) of the Department of Veterans Affairs (VA). The Court in AB v. Brown, 6 Vet. App. 35, 39 (1993) held that on a claim for an original or increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulations. During the course of this appeal the veteran's disability was increased from 10 to 20 percent disabling, and from 20 to 40 percent disabling. The Court also stated that it follows that such a claim remains in controversy "where less than the maximum available benefit is awarded." Id. at 38. Accordingly, the issue of entitlement for an evaluation in excess of 40 percent for arthritis of the dorsal-lumbar spine must be addressed by the Board. After a careful review of the record, as is discussed in the decision below, the Board determines that a right foot drop disorder has been identified as one of the veteran's primary complaints. That is, throughout the contention pleadings, the veteran has argued that he has a right foot drop disorder which resulted from his service-connected dorso-lumbar spine disability, and that a medical opinion of the same showed a plausible relationship between the two. In a December 1998 rating decision, the RO denied entitlement to service connection for a bilateral lower extremity condition secondary to the service-connected dorso-lumbar spine disability because it determined that current evidence showed no disability of the right and left leg associated with the veteran's service-connected dorso-lumbar spine condition. But, the RO determined that there was neurological impairment consisting of bilateral radiculopathy and spinal stenosis associated with the veteran's service-connected arthritis of the dorso-lumbar spine which warranted an increase in the schedular rating for that condition; and that there was no credible evidence showing a disability of the lower extremities as being casually related to the service- connected dorso-lumbar spine condition. The Board observes that while the nomenclature for the claimed disability has changed slightly, the veteran's current claim for secondary service connection is, in substance, the same as that considered by the RO in its rating actions in preparation of this appeal. See Ashford v. Brown, 10 Vet. App. 120, 123 (1996) (a change in the nomenclature used in a claim does not constitute a new claim); but cf. Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) (holding that a claim based on a new diagnosis is a new claim). In that regard, the RO has considered all of the evidence necessary to determine whether secondary service connection is warranted for a residual disability of a right foot drop. Id. Thus, the crux of the veteran's claim is based on the theory that he is entitled to service connection for a right foot drop disorder as secondary to his service- connected arthritis of the dorso-lumbar spine, which could be interpreted as a claim for a separate rating (i.e., a basis for establishing a separate and distinct service-connected disability which, if granted, would be evaluated for purposes of increased compensation benefits). See Estaban v. Brown, 6 Vet. App. 259, 262 (1994) (holding that if the symptomatology is separate and distinct, the veteran is entitled to a separate rating); see also Bierman v. Brown, 6 Vet. App. 125, 129-132 (1994). Therefore, the Board will not discuss the issue in terms of one of a "bilateral lower extremity" disorder, but will construe the issue as listed on the title page of this decision. Lastly, it is noted that the United States Court of Appeals for Veterans Claims (hereinafter, "the Court") was known as the United States Court of Veterans Appeals prior to March 1, 1999. FINDINGS OF FACT 1. The veteran's right foot drop is etiologically related to his arthritis of the dorso-lumbar spine. 2. The evidence of record shows that the veteran's service- connected arthritis of the dorso-lumbar spine is principally manifested by pain and tenderness, deceased range of motion, degenerative joint disease and degenerative disc disease of the lumbar spine, and significant neurological findings consistent with lumbar radiculopathy and spinal stenosis, which are productive of pronounced impairment. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the veteran, a right foot drop disorder is proximately due to the veteran's service-connected arthritis of the dorso-lumbo spine. 38 U.S.C.A. §§ 501, 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.310(a) (1999). 2. Resolving all reasonable doubt in favor of the veteran, the criteria for a 60 percent evaluation for arthritis of the dorsal-lumbar spine, have been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5293 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Although originally denied in a July 1943 rating decision as not having been incurred or aggravated in service, service connection for arthritis of the lumbar vertebrae was granted by way of a November 1943 rating decision as being attributable to aggravation in service. A 20 percent rating was assigned. In a July 1944 Board decision, it was determined that evidence was insufficient to warrant service connection for injury to the left foot. Arthritis of the lumbar vertebrae remained 20 percent disabling. In a September 1945 rating decision, the 20 percent evaluation was decreased to 10 percent, for what was reclassified as "arthritis, hypertrophic, dorso-lumbar spine." The decision was based on improvement shown in the veteran's disability at an August 1945 examination. The 10 percent rating was confirmed and continued in a May 1948 rating decision. A January 1996 private x-ray report of the lumbosacral spine, revealed that there was marked sparring on the anterior aspects of the lumbar vertebrae. There was narrowing of the L2-L3 disc interspace. February 1996 private treatment records reveal that the veteran had a history of back pain with injury many years ago. On February 2, 1996, the veteran was seen for electromyogram (or EMG) evaluation due to complaints of right foot drop, weakness of the right leg, and vague numbness in both legs. The electromyogram results revealed that nerve conduction study showed a small right common peroneal compound motor action potential (CMAP) but no evidence of entrapment of the fibula bead. The H reflexes were absent bilaterally consistent with S1 roots dysfunction bilateral. The EMG showed evidence of chronic neurogenic changes bilaterally. February 23, 1996 private treatment records reveal that the veteran underwent a magnetic resonance imaging (MRI). The impression was severe central canal stenosis at L4-5, moderately severe central canal stenosis at L3-4, and mild central canal stenosis at L2-3 and L5-S1. Those were related to a combination of congenital short pedicles, bony spurring and circumferential disc bulge, and bilateral facet bony hypertrophy; and severe stenosis of the neural foramina at L4-5 and moderate at L4-5. From November 1997 to December 1997, the veteran was seen at VA. On November 10th, it was noted that the veteran had numbness of both feet, and he underwent a neurology examination. There was no dorsiflexion or plantar flexion. In December, he was seen in the "brace clinic." Physical examination revealed that there mild atrophy and sensory was decreased. The assessment was that the veteran had a history of right foot drop. An appropriate brace was molded to fit the veteran. In December 1997, the veteran initiated a claim for increased evaluation of his service connected back disability. He indicated that his condition had seriously deteriorated since 1948, to the point that he experienced major nerve involvement to the right buttock, left and foot. He indicated that his ability to walk was seriously impaired. In March 1998, the veteran underwent a VA examination for the spine. The examiner noted that medical records were reviewed. It was noted that the veteran was 80 years old, and that he had injured himself while on a ship in 1943. It was noted that the veteran did not have much back pain but that he complained of leg weakness. He complained of right foot drop or right foot weakness for the past 10 years. He also complained of having numbness of bilateral buttocks and below the knee sensations bilaterally, right worse than the left, for the past 5 years. The veteran further complained of loss of feeling of defecation for the past four months but no fecal incontinence except minimal swelling. No bladder control problems such as retention or urinary incontinence were noted. It was noted that the veteran had a MRI done at a VA Medical Center in February 1998, which showed severe degenerative joint disease and lumbar spine with severe spinal stenosis level L3 to 5, and x-ray of the lumbar spine showing severe degenerative joint disease and degenerative disc disease. The examiner reported that an EMG was done in January 1998, which was incomplete and inconclusive because the veteran was a "noncooperative" patient. Physical examination revealed that the lumbar spine was nontender and smooth and straight. Range of motion on right inclination was 25 degrees. Left inclination was 35 degrees. Flexion was to 90 degrees, and extension was to 20 degrees. The examiner reported that there was a burning sensation of the buttocks when the veteran was doing rotation to the right and the left. It was reported that there was no pain during the flexion, extension or inclination of the spine. There was no muscular atrophy of the back and no postural abnormality of the back. There was no evidence of pain or spasm during the range of motion of the back. Examination of the lower extremities showed muscular atrophy of the right calf, significant compared to the left calf which was normal. There was no evidence of muscular atrophy of the thighs bilaterally. Sensory examination of the lower extremities showed decreased tactile and pressure sensation of the dermatome L5-S1 bilaterally. Examination of the motor showed hip flexion and extension five over five, right knee extension one over five and flexion four over five; and left knee extension and flexion five over five. Right ankle motor flexion, extension zero out of five and left ankle flexion and extension five out of five. Deep tendon reflexes one plus at knee but absent at ankles bilaterally. The veteran walked limping with unsteady gait because of right leg weakness, according to the examiner. The diagnoses were degenerative joint disease and degenerative disk disease of lumbar spine, severe spinal stenosis at level L3 L5 and bilateral radiculopathy L5 S1. Corresponding laboratory reports are of record, as was a February 1998 lumbosacral spine x-ray. The impressions were osteoporosis, vascular calcification, and degenerative changes involving the thoracolumbar spine. Therein it was noted that discogenic changes most obvious at the L2 through L4 levels. There was bony impaction at the lumbar level. There was anterior Schmorl node formation involving the superior surface of L2 with posterior Schmorl node formation at the lower thoracic level. There was no evidence of osteoblastic or osteolytic bone disease. The corresponding MRI done at VA in February 1998 is also of record. The impression was that there was severe facet hypertrophy at L3 through L5 levels, and severe hypertrophy of the posterior elements with severe spinal canal stenosis and neural foraminal stenosis bilaterally. Anterior wedge compression of the vertebral body at L2 was also noted. In a March 1998 rating decision, the veteran's disability was increased from 10 to 20 percent disabling, for arthritis of the dorso-lumbar spine. The effective date was December 16, 1997. In a July 1998 rating decision, after receipt of additional VA outpatient treatment records described above, the RO continued the 20 percent rating and changed the effective date to November 10, 1997. The RO also indicated that favorable consideration for an extra-schedular grant under 38 C.F.R. § 3.321 was not warranted at that time, as an exceptional or unusual disability picture was not shown. In his August 1998 notice of disagreement, the veteran indicated that his disability evaluation should have been rated higher than 20 percent. In September 1998, the RO issued a Statement of the Case. In September 1998, the veteran submitted a statement and therein indicated that he wanted an adjunct claim for service connection for a right leg condition with nerve involvement extending to his foot and requiring the use of a leg brace. The veteran stated that his leg disability was "clearly secondary" to his service-connected back condition. He also indicated that he suffered problems with his left leg (weight bearing shift) due to his back disability, and that the same should be service-connected. In September 1998, the veteran also submitted his substantive appeal with similar argument and contentions. In October 1998, the veteran's private physician, Dr. Franklin Millin, M.D. wrote a letter to the veteran, and a copy of the same is of record. Dr. Millin stated that he had reviewed the veteran's medical record as requested. He stated: You have had a long history of back complaints due to traumatic back injury many years ago. In January 1996 you complained of weakness in the right foot and an examination was found to have right foot drop. An EMG/NCV study done in February 1996 suggested an L 3-5 radiculopathy on the right side. As a result/ an MRI of the L/S spine and consultation with a Neurologist were obtained. The findings indicated that your right foot drop is the result of a right L5 radiculopathy. I trust that this summary will be of help to you. In a December 1998 rating decision, the RO increased the veteran's rating from 20 to 40 percent disabling, effective November 10, 1997. The increase was based on the fact that the veteran had degenerative joint disease and degenerative disc disease of the lumbar spine with (L3 through L5 levels) with severe spinal stenosis and bilateral radiculopathy at L5-S1. The RO determined that there was no evidence of demonstrable muscle spasm or other neurological deficits greater than the bilateral radiculopathy which was associated with the diseased disc/joint site. The RO considered this a partial grant of the benefits sought on appeal. In a December 1998 rating decision, the RO denied service connection for bilateral lower extremity condition as evidence received in connection with that claim failed to establish any relationship between bilateral lower extremity condition and arthritis, dorso-lumbar spine. The RO determined that the claim was not well grounded, and advised the veteran to submit evidence showing a plausible relationship. In January 1999, the veteran submitted a notice of disagreement, and a duplicate copy of Dr. Millin's October 1998 opinion. The veteran argued that he was never specifically evaluated in conjunction with his claim for secondary service connection. In January 1999, the RO issued a statement of the case. January 1999 VA outpatient treatment records show that the veteran underwent VA neurological evaluation. The assessments were peripheral nerve disease, lumbar stenosis, and spinal stenosis. In February 1999, the RO requested specialist examinations to determine whether or not there was radiculopathy and right foot drop associated with the low back condition. It was not requested that the examiners be provided with the veteran's medical records for review. On February 25, 1999, the veteran underwent a fee for service VA examination with a Board certified neurologist. In the identification section, the physician stated that the veteran was an 81 year old man with a history as noted. He had diagnosis of arthritis of the dorsolumbar spine, and the physician had been asked to determine whether or not there was radiculopathy and a right foot drop associated with his lower back condition. It was noted that there were no medical records available for review. The veteran was given a short leg brace by VA in 1997, and he complained of a foot drop. He stated that without his orthotic device he tended to trip. The veteran currently complained of a more generalized weakness in the right leg. He noted difficulty with such things as ascending stairs. The veteran complained of constant paresthesia over the sole of the right foot spreading up the posterior calf. Over the last several months he had also developed complaints of paresthesia in the sole of the left foot, and constant paresthesia in the buttocks. The veteran complained of only occasional back pain which was precipitated with bending and stooping. The veteran stated that apart from his injury while in the military, there had been no subsequent injuries to the lower back. Physical examination of the lumbar spine revealed that there was minimal tenderness over the sacroiliac regions. No muscle spasm was noted. There was an approximately 10 degree loss of flexion and a 5 degree loss of rotation in either direction. There was no sciatic notch tenderness. Straight- leg raising sign was negative. An extensive neurologic examination incorporated review of the veteran's mental status, speech, cranial nerves, coordination, gait, strength, sensory and reflexes. Reported herein are the results pertinent to the back and lower extremities. Regarding coordination, there was a moderate decrease in distal fine coordinated movements of the right toes; they were normal in the left toes and bilateral fingers. Finger-nose-finger and heel-shin tests revealed no dysmetria or transverse tremor. Regarding gait, the veteran exhibited an obvious severe foot drop when ambulating. He had slight difficulty maintaining his balance. There was decreased takeoff on the right side due to some weakness of the plantar flexors. There was a mild pelvic tilt toward the right. The veteran could heel, toe, or tandem walk. Regarding strength, there was normal tone in the upper and lower extremities. No fasciculations were noted. There was definite mild to moderate atrophy in the anterior tibialis, as well as mild atrophy of the intrinsic foot muscles on the right side. There were no other areas of atrophy. Bilateral upper extremity and left lower extremity strength was 5/5 in all groups tested. The right quadriceps was -5/5; the hamstrings were 4+/5 to -5/5; the gastrocoels was 4/5 to 4+/5; and the right foot dorsiflexors were 1/5 to 2/5. Regarding sensory, there was a bilateral S1 sensory loss to soft touch with decreased vibratory sense in the toes. Regarding reflexes, the upper extremity reflexes were 2/4 and symmetrical. The lower extremity reflexes were absent. Toes were down going bilaterally. The physician noted that radiology information revealed that Nerve Conduction Studies/EMG revealed active radiculopathy. The examination impression was lumbar spondylosis with associated right L5-S1 and left S1 radiculopathy. In the Discussion and Comment section, the physician indicated that the objective findings included: 1. Slight decrease in range of motion of the lumbar spine. 2. Two separate EMG studies which apparently revealed at least a right L5 abnormality. 3. Two MRI scans of the lower back, the results of which are unknown. 4. Weakness of the right lower extremity. 5. Physiological bilateral sensory loss. 6. Atrophy of the right lower extremity. 7. Obvious foot drop when ambulating. On the basis of information currently available to me, the patient suffers from lumbar spondylosis. He is developing a polyradiculopathy. There is quite prominent weakness in the right lower extremity. I would attribute current radicular findings to the patient's degenerative arthritic low back condition or lumbar spondylosis. If in fact, as I would suspect, the patient's MRI reveals significant findings, especially at the L4-L5 levels, the EMG reveals evidence of an active radiculopathy, the patient certainly may require a surgical decompression procedure.... The patient benefits from the use of his short-leg brace. Due to weakness in the lower extremities he would probably have difficulty standing and walking more than three hours out of an eight hour day in 20 minute intervals. He can only occasionally bend and stoop. He would have difficulty operating foot controls on the right side. He cannot climb, balance, or work at heights. The patient would have difficulty lifting or carrying more than 20 to 25 pounds on an occasional basis. The patient suffers from lumbar spondylosis there may be gradual deterioration in his clinical and functional status over time. On February 26, 1999, the veteran underwent a fee for service VA examination with a Board certified orthopedist. In the corresponding report, the physician stated in detail the veteran history. It was noted that the veteran had sought help from VA one year earlier for what was then significant weakness of the right lower extremity from the knee down. It was noted that, associated with marked weakness of the right lower extremity were sensory changes in both lower extremities. Of late, the veteran had had some problems with his bladder and bowels. It was noted that the veteran was provided with a brace for the marked weakness of the right lower extremity that had improved his gait. At no time had he found it necessary to use a cane. The physician also noted that the veteran essentially denied any other problems referable to the musculoskeletal system. At that present time, the veteran ambulated with a short leg, double upright brace. The veteran took no medication for his orthopedic problem. The physician noted that physical examination included formal physical examination procedures and observations of the veteran's movements and action during the taking of the history and physical examination. The veteran was well- developed, well nourished and appeared younger than his stated age. He was in no acute distress. Examination of the uppers extremities was done, and is not reported here. Examination of the knees revealed that the veteran had normal range of motion for the knees, from zero to 135 degrees. Neurological knee examination of both knees revealed no evidence of abnormalities. Ankle dorsiflexion was normal at 15 degrees bilaterally, and plantar flexion was also noted to be normal at 40 degrees bilaterally. Examination of the back and lower extremities revealed that there was no evidence of scoliosis. The physician stated that the veteran's gait was classically that of a steppage type gait secondary to marked weakness of all muscle components distal to the knee joint. The veteran wore a double upright, short leg brace that provided him with ankle stability. With the brace, the veteran's gait was somewhat slowed and slightly antalgic on the right. No scars were noted. No evidence of any muscle spasm, swelling or masses. There was no tenderness in the paraspinal muscles. Range of motion for the back showed that fingers to the floor was 8 inches, and that normal range was zero inches. Flexion was 85 degrees on examination, and normal was noted to be 90 degrees. Extension was 15 degrees, and normal was listed as 20 degrees. Right bending was 15 degrees, and normal 20 degrees. Left bending was 15 degrees, and normal was 20 degrees. Right and left rotation were 20 degrees on each side. Extension and lateral rotation and bending were all productive of discomfort in the extreme ranges. Muscle strength on the back in flexion and extension appeared normal. There was significant, visual atrophy of the thigh and calf muscles on the right. Despite the atrophy of the quadriceps on the right, the veteran had muscle strength of 5/5 in the right quadriceps and hamstrings. On the right, from the knee down there was no motor activity of any muscle group. Left lower extremity appeared to be normal throughout and all groups demonstrated a strength of 5/5. X-rays of the back reportedly showed that the lumbar spine demonstrated severe multilevel degenerative disc disease extending from L5 through to the sacrum. It was most severe at the L3-4 disc space and the L5-S1 disc space. At the L3- L4 disc space, there was marked anterior lipping and spurring. There was facet arthropathy at all levels but most of it was lumbosacral. There appeared to be a significant spinal stenosis involving the entire lumbar area. The lateral view of L2 demonstrated some questionable anterior wedging of the vertebral body that could be interpreted as posttraumatic. That was difficult to assess because of the marked secondary hypertrophic lipping and spurring that contributed somewhat to the abnormal vertebral shape. The diagnosis was that the veteran had severe, multilevel degenerative disc disease of the lumbar spine. Range of motion for the lower extremities were as follows. Normal range of motion for the hips was listed as zero degrees of extension to 130 degrees of flexion. Range of motion for the veteran's hips was from zero degrees of extension to 130 degrees of flexion, bilaterally. Normal external rotation was noted to be 45 degrees, and the veteran had 45 degrees of external rotation, bilaterally. Normal internal rotation was noted to be 20 degrees, and the veteran exhibited 20 degrees of internal rotation, bilaterally. Normal abduction was listed as 35 degrees, and the veteran had 35 degrees of abduction, bilaterally. Neurological examination of the lower extremities revealed that straight leg raising (seating and supine), 80 degrees, Lasegue's test, cross straight leg raising and Faber test were negative, bilaterally. The deep tendon reflexes (patella) was 1+ on the right and 2+ on the left and (Achilles) absent on the right and 2+ on the left. Babinski was negative. There was no evidence of spasticity. There was significant reduced sensation on the right involving almost the entire right lower extremity beginning at the tibia tubercle level laterally and medially, approximately 5 inches distal to the tibia tubercle. From that point on down, the entire extremity was involved in sensory loss. The left lower extremity showed a sensory change involving primarily the lateral aspect of the left, ankle and dorsolateral aspect of the foot beginning at a level 6 inches distal to the knee and extending to the toes. The impression was that the veteran showed a significant peripheral neuropathy based primarily on his stenotic lumbar spine. There was no history of diabetes or any other contributing factor that had resulted in significant weakness of the right lower extremity necessitating the use of a brace. In the discussion section, the physician stated: The veteran at the present time carries the diagnosis of severe, diffuse, degenerative arthritis of the lumbar spine with associated spinal stenosis and peripheral neuropathy secondary to stenotic process. That was longstanding in nature. The veteran's symptoms of increasing pain and neuropathy manifested itself some thirty years following discharge. It would be nice to know from the records exactly how significant the 1943 injury to the lumbar spine was. The present x-rays are slightly suggestive of a vertebral body fracture but records would prove to be beneficial. Also of interest would be x-rays from around 1970. At the present time, I feel that the veteran's problems are the result of a longstanding, progressive degenerative process that has resulted in spinal stenosis and secondary peripheral neuropathy. In July 1999, the RO issued a supplemental statement of the case indicating the continued denial of entitlement to service connection for bilateral lower extremity condition as secondary to the service-connected disability of arthritis, dorso-lumbar spine. In March 1999, the veteran was seen privately for an EMG study of both lower extremities. Under the section for nerve conduction velocity test, it was noted that right peroneal motor and right tibial motor were tested. Under right peroneal motor, it was noted that evoked motor response could not be obtained from the extensor digitorum brevis on maximum stimulation of the peroneal nerve at the ankle, below the fibular head level and above the fibular head level. Motor nerve conduction velocity of the right peroneal nerve could not be obtained. Under right tibial motor, it was noted that evoked motor response could not be obtained from the abductor hallucis bravis on maximum stimulation of the tibial nerve at the ankle and knee. Motor nerve conduction velocity along the right tibial nerve could not be obtained. The actual corresponding test graphs were associated with the report. Secondary Service Connection Service connection may be established for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service- connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). However, a claim for secondary service connection, like all claims, must be well grounded. See Anderson v. West, 12 Vet. App. 491 (1995). Thus, as a preliminary matter, the Board must determine whether the veteran has presented evidence of a well grounded claim, that is, a claim that is plausible and meritorious on their own or capable of substantiation. See 38 U.S.C.A. § 5107(a); Chelte v. Brown, 10 Vet. App. 268, 270 (1997) (citing Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990)). The Court has stated repeatedly that 38 U.S.C.A. § 5107(a) unequivocally places an initial burden on the claimant to produce evidence that his claim is well grounded. See Morton v. West, 12 Vet. App. 477, 480-481 (1999) (citing Grivous v. Brown, 6 Vet. App. 136, 139 (1994)). The Court has stated the quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. See Groveitt v. Brown, 5 Vet. App. 91, 92 (1993). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Id. The veteran contends that his service-connected disability has caused or aggravated a nonservice-connected right foot drop disorder. In a supplemental statement of the case issued by the RO in July 1999, the RO stated that the reason the veteran's claim for secondary service connection remained denied was because the objective evidence showed that "the veteran has a bilateral lower extremity condition diagnosed as active radiculopathy due to lumbar spondylosis and stenosis with associated right L5-S1 radiculopathy." The RO's point being that service connection was established for traumas to the dorsal and upper lumbar spine, specified at the level of D10 to L1, and noted in hospital reports from 1945. The RO concluded that the objective evidence showed radiculopathy due to right L5-S1 and left S1 (a different part of the back), and that the evidence did not show the residual condition was associated with the injury at level D10 to L1. The Board disagrees with this analysis for the following reasons. First, the Board has reviewed the record in its entirety, and determines that the veteran has submitted a well grounded claim for entitlement to service connection for a right foot drop disorder as secondary to the service-connected arthritis of the dorso-lumbar spine. Secondly, the Board notes that the evidence of record supports service connection for a right foot drop disability, on a secondary basis, as being the proximate result of the veteran's service connected dorso-lumbar spine condition. Yes, while, as the RO pointed out, the veteran's original disability during the 1940's was classified as arthritis of the dorso-lumbar spine area, private x-rays in January 1996 showed marked sparring on the anterior aspects of the lumbar vertebrae of the lumbosacral spine, and an EMG in February 1996, done in conjunction of the veteran's complaints of right foot drop, showed a small right peroneal CMAP. This is important, because in October 1998, Dr. Millin, opined, after reviewing the veteran's medical record, that the veteran's traumatic history of back injury was related to his complaints of weakness in the right foot in 1996. Specifically, Dr. Millin stated that the veteran complained of weakness in the right foot in January 1996, and that the EMG done in February 1996 suggested an L3-5 radiculopathy on the right side. Dr. Millin is qualified to opine, which he did, that the neurological findings indicated that the veteran's right foot drop was the result of a right L5 radiculopathy. The L5 radiculopathy is shown to be related to the service-connected disability by the opinion provided by the neurologist in February 1999 when he stated that "there is quite the prominent weakness in the right lower extremity. I would attribute the current radicular findings to the patient's degenerative arthritic low back condition or lumbar spondylosis." Furthermore, the fee basis orthopedist in February 1999, indicated that the veteran's severe diffuse degenerative arthritis of the lumbar spine was "longstanding," and also described the veteran's problem as a progressive degenerative process that had resulted in secondary peripheral neuropathy, and spinal stenosis. These medical data show that the veteran has a longstanding, progressive degenerative process of the low back, of which current radicular findings are associated, and of which a right foot drop disorder has manifested. There is medical evidence that the radicular findings causing the right lower extremity weakness were possibly due to the lumbar spondylosis. On balance, however, the weight of the evidence points to an etiological relationship leading from arthritis of the dorso-lumbar spine to the right radiculopathy and finally to the right foot drop. The benefit of doubt under 38 U.S.C.A. § 5107(b) is therefore resolved in the veteran's favor, thereby warranting a grant of service connection for a right foot drop disorder secondary to arthritis of the dorso- lumbar spine. See 38 C.F.R. §§ 3.102, 3.310(a). Increased Rating Initially, the Board notes that the provisions of 38 U.S.C.A. § 5107 have been met, in that the claim for an increased evaluation is new, well grounded and adequately developed. The veteran's assertion that his disability has worsened is sufficient to state a plausible, well-grounded claim. See Arms v. West, 12 Vet. App. 188, 200 (1999), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA regulations require that disability evaluations be based upon the most complete evaluation of the condition that can be feasibly constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of the disability. Medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. Functional impairment is based on lack of usefulness and may be due to pain, supported by adequate pathology and evidenced by visible behavior during motion. Many factors are for consideration in evaluation disabilities of the musculoskeletal system and these include pain, weakness, limitation of motion, and atrophy. 38 C.F.R. § § 4.1, 4.2, 4.10, 4.40, 4.45. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (1999). Therefore, the Board will consider the potential application of the various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the history of the veteran's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The veteran's arthritis of the dorso-lumbar spine is currently rated as 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (for intervertebral disc syndrome). See, e.g., Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the VA's selection of a diagnostic code in a particular case may not be set aside unless "such selection is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law'"). Under this diagnostic code, a 40 percent evaluation is warranted where the disability is severe, with recurring attacks and intermittent relief. A 60 percent evaluation is warranted where the disability is pronounced, 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, and little intermittent relief. 38 C.F.R. § 4.71a. A 60 percent rating is the highest schedular evaluation assignable under Diagnostic Code 5293. In a precedent opinion, dated in December 1997, the VA Office of General Counsel held that because Diagnostic Code 5293 is based upon symptomatology which contemplates limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered when a disability is evaluated under that diagnostic code. VAOPGCPREC 36-97, 63 Fed. Reg. 31262 (1998); see also Johnson v. Brown, 9 Vet. App. 7 (1996). As noted above, 38 C.F.R. §§ 4.40 and 4.45 together make clear that pain, supported by pathology and behavior, must be considered capable of producing compensable joint disability. A 100 percent evaluation is warranted under Diagnostic Code 5285 for residuals of a vertebral fracture with cord involvement, if the veteran is bedridden, or if he requires long leg braces. Under Diagnostic Code 5286, a 100 percent evaluation requires complete bony fixation (ankylosis) of the spine at an unfavorable angle with marked deformity and involving major joints (Marie-Strumpell type) or without other joint involvement (Bechterew type). 38 C.F.R. § 4.71a. In reviewing the case, the Board observes that the evidence of record demonstrates that the veteran's disability picture for his service-connected dorso-lumbar spine disorder, although currently evaluated as 40 percent disabling more nearly approximates the criteria required for a 60 percent rating. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5293. In that regard, the evidence of records shows that the clinical findings contained in the examination reports dated between November 1997 and February 1999 (which are the most recent VA and private examinations of record) collectively show that the veteran has complaints of numbness and a burning sensation of the buttocks, decreased lumbar spine motion, with objectively confirmed pain on motion, no muscle spasm, and x-ray evidence demonstrating severe degenerative joint disease and severe degenerative disc disease of the lumbar spine. However, it is apparent from these same reports the veteran continues to suffer from decreased sensation, bilateral radiculopathy, and spinal stenosis, affecting the lumbar spine, and all of which have been characterized by VA and private examiners as residual disability stemming from the service connected spinal disability. In light of the substantial degree of neurological involvement of the low back, and the fact that the record shows weakness, an impaired ability to execute skilled movements smoothly, and pain on movement, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the Board finds that there is a question of whether the 40 percent or 60 percent evaluation most accurately reflects the degree of disablement. See generally, DeLuca v. Brown, 8 Vet. App. at 205-06; 38 C.F.R. § 4.7. Accordingly, after resolving all reasonable doubt in the veteran's favor, the Board determines that the medical data of record more nearly approximate the criteria for a 60 percent evaluation under Diagnostic Code 5293. Accordingly, a 60 percent evaluation for the veteran's service-connected arthritis of the dorso- lumbar spine is warranted. Significantly, however, the medical data of record do not indicate that the veteran's service-connected spinal disorder is manifested by a vertebral fracture with cord involvement. Further, there is no evidence of unfavorable ankylosis, with marked deformity, and joint involvement of either a Marie- Strumpell or, a Bechterew type. Therefore, an evaluation in excess of 60 percent is not warranted. ORDER Service connection for a right foot disorder, secondary to the service-connected arthritis of the dorso-lumbar spine, is granted. A 60 percent evaluation for arthritis of the dorsal-lumbar spine is granted, subject to the regulations pertinent to the disbursement of monetary funds. Deborah W. Singleton Member, Board of Veterans' Appeals