Citation Nr: 0007380 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 96-32 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the spine. 2. Entitlement to a temporary total convalescent rating based on laminectomy surgery performed on June 7, 1995 under the provisions of 38 C.F.R. § 4.30. 3. Entitlement to an increased disability rating for lumbosacral strain, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD Theresa M. Catino, Counsel INTRODUCTION The veteran served on active military duty from August 1954 to December 1957. This appeal arises from two separate decisions of the Philadelphia, Pennsylvania, regional office (RO). First, by a May 1996 rating action, the RO granted an increased disability evaluation for the veteran's service-connected lumbosacral strain from a noncompensable level to 40 percent, effective from November 1995. In addition, by an August 1998 rating action, the RO denied the issues of entitlement to service connection for degenerative disc disease of the spine and entitlement to a temporary total evaluation under the provisions of 38 C.F.R. § 4.30. FINDINGS OF FACT 1. The record contains no competent medical evidence associating the degenerative disc disease of the veteran's spine to his military service or to his service-connected lumbosacral strain. 2. On June 7, 1995, the veteran underwent L3-L4-L5 decompressive laminectomies for lumbar spinal stenosis, a nonservice-connected disability. 3. The highest possible schedular evaluation has been assigned for the veteran's severe lumbosacral strain. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for degenerative disc disease of the veteran's spine is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1999). 2. A temporary total convalescent rating based on laminectomy surgery performed on June 7, 1995 under the provisions of 38 C.F.R. § 4.30 is not warranted. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.30 (1999). 3. A disability rating greater than 40 percent for lumbosacral strain is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321, 4.71a, Diagnostic Codes 5293 and 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection For Degenerative Disc Disease Of The Spine The threshold question that must be resolved is whether the veteran has presented evidence that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well-grounded claim is a plausible claim, one that appears to be meritorious. See Murphy, 1 Vet.App. at 81. An allegation that a disorder is service connected is not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). In order for a claim of service connection to be well grounded, there must be proof of present disability. Brammer v. Derwinski, 3 Vet.App. 223 (1992); see also Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992) (requiring, for a well-grounded claim, competent evidence that a veteran currently has the claimed disability). In addition, there must also be evidence of incurrence or aggravation of a disease or injury in service. See Caluza v. Brown, 7 Vet.App. 498 (1995). The veteran must also submit medical evidence of a nexus between the in-service disease or injury and current disability. Id. Competent evidence demonstrating that a disability is due to, or was aggravated by, an already service-connected disability will also make a claim of service connection well grounded. 38 C.F.R. § 3.310(a). Where the issue is factual in nature (e.g., whether an incident or injury occurred in service), competent lay testimony, including the veteran's testimony, may constitute sufficient evidence to establish a well-grounded claim; however, if the determinative issue is one of medical etiology or a medical diagnosis, competent medical evidence must be submitted to make the claim well grounded. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). However, where the issue does not require medical expertise, lay testimony may be sufficient. See Layno v. Brown, 6 Vet.App. 465, 469 (1994). Throughout the current appeal, the veteran has essentially asserted that service connection for degenerative disc disease of his spine is warranted. In particular, he has contended that his service-connected lumbosacral strain has developed into an "osteoarthritic condition." See, e.g., August 1996 hearing transcript (T.) at 1, 8-10, 18. The service medical records reflect some complaints of back pain as well as a finding of right costovertebral angle tenderness in the veteran's back in September 1957. However, the service medical records are negative for complaints of, treatment for, or findings of degenerative disc disease of the veteran's spine. In fact, at the November 1957 separation examination, the veteran specifically denied ever having experienced arthritis or a bone, joint, or other deformity. Furthermore, this evaluation demonstrated that the veteran's spine was normal. The veteran was discharged from active military duty in December 1957. A June 1958 examination demonstrated marked tenderness over his lumbar region. During a one-and-a-half month hospitalization from July to August 1958 for genitourinary problems, a physical examination illustrated marked costovertebral angle tenderness of the veteran's back which was bilateral but especially noted on the left. X-rays taken of the veteran's lumbosacral spine were negative. The attending physician diagnosed musculoskeletal instability of the lumbosacral area. This diagnosis was later confirmed during a two-week hospitalization between September and October 1962 for chronic prostatitis. At a March 1965 VA examination, the veteran complained of a "back condition." X-rays taken of his lumbosacral spine were normal. In particular, the radiologist reviewing the radiographic films concluded that they showed no arthritic change, congenital anomaly, or intervertebral disc disease. The examiner who was conducting the examination concluded that the evaluation of the veteran's back was negative. At a VA orthopedic examination conducted two years later in March 1967, the veteran reported having continued pains in the lower part of his back "from time to time." X-rays taken of his lumbosacral spine was normal. The radiologist specifically stated the veteran's intervertebral spaces were "of normal width." The examiner concluded that no orthopedic back condition was discernible on examination that day. A December 1994 private medical record reflects the veteran's complaints of low back pain and the attending physician's suspicion of degenerative disc disease of the lumbosacral spine with possible lumbosacral stenosis and herniated nucleus pulposus. Another document dated in the same month includes a nephrologist's conclusion that the veteran's pain does not have a renal etiology but "could be secondary to degenerative disease of the spine." (In this regard, the Board notes that, subsequently, in December 1996, a VA examiner concluded that the veteran's back condition (as defined by the nephrologist in 1994) "has no relationship to his kidney disorder . . . [or] to his chronic prostatitis.") Magnetic resonance imaging completed on the veteran's lumbar spine in January 1995 showed multi-level disc bulges with central stenosis from L2-3 through L4-5 as well as bilateral neural foraminal stenosis from L3-4 through L5-S1. Electromyograph (EMG) and nerve conduction velocity (NCV) studies performed two months later in March 1995 revealed bilateral (right greater than left) L5, S1 lumbar radiculopathies. A private examination conducted in August 1995 resulted in the following pertinent diagnoses: status-post lumbar laminectomy for lumbar stenosis, disc disease and spinal stenosis of the lumbar spine, and cervical stenosis of the cervical spine. In March 1996, the veteran was accorded a VA spine examination. X-rays taken of his lumbar spine at that time showed minor spondylotic change with degenerative disc disease at L4-5, status-post laminectomy at L3 through L5, apophyseal joint sclerosis, and hypertrophy of the lower lumbar spine. The examiner diagnosed post-operative herniated nucleus pulposus as well as degenerative disc disease of the lumbosacral spine with decreased range of motion. In an August 1996 letter, a private physician explained that he had treated the veteran two months earlier. Additionally, the physician noted the veteran's history of back pain for many years and stated that the development of spinal stenosis necessitated laminectomies and laminotomies between the third, fourth, and fifth lumbar and first sacral vertebrae in 1995. The physician also stated that x-rays have shown, in pertinent part, these laminectomies as well as degenerative disc disease in the veteran's lumbar spine. In August 1997, the veteran underwent a VA spine examination. X-rays taken of his lumbar spine showed moderate degenerative joint disease and a laminectomy defect involving L3 through L5. The examiner, who appeared not to have access to the veteran's claims folder, stated that the veteran "has had back surgery, most likely a laminectomy, which proved to be largely unsuccessful" and that the veteran "continues to have low back pain which radiates into both of his legs." The examiner diagnosed "post-op" lumbosacral strain, "post-op" laminectomy with marked decreased range of motion, and degenerative disc disease with spinal stenosis and with marked decreased range of motion and pain radiating into the extremities. In a September 1997 document, a VA physician explained that neither he nor his colleagues knew "of . . . [any] medical literature to support any relationship between a long ago low back injury and present day degenerative disease of the lumbosacral spine. In fact, the causes of degenerative disc disease and hypertrophic bony changes are general and unknown." According to this physician, "[m]ost degenerative disease of the lumbosacral spine in this world comes about without any history of injury." The physician also expressed his opinion that the veteran "seems to be predisposed to degenerative disease of the spine because he has not only lumbar spine stenosis but also-by his reporting-cervical spine stenosis. The physician, therefore, diagnosed post lumbosacral spine surgery for lumbar spine stenosis. Subsequently, in April 1998, this physician confirmed these opinions. In particular, the physician expressly stated that the veteran has degenerative disc disease and that his degenerative disc disease is not related to his service-connected lumbosacral strain. Competent medical evidence of a nexus between current disability and the veteran's military service is required for a finding of a well-grounded claim. See Jones v. Brown, 7 Vet.App. 134 (1994). Such evidence is lacking in this case. In other words, no one with sufficient expertise has provided an opinion that the degenerative disc disease of the veteran's spine had its onset during service, was the product of continued symptoms since service, or was caused, or made worse, by an already service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). Consequently, the veteran's claim for service connection for degenerative disc disease of the spine is not well grounded. Caluza, supra. Paragraph 30 Benefits The veteran's claim of entitlement to a temporary total rating based on laminectomy surgery performed on June 7, 1995 which either necessitated at least one month convalescence or resulted in severe post-operative residuals is well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that the veteran has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. There is no indication of any outstanding pertinent records that could be obtained. The record is, therefore, complete. As sufficient data exist to address the merits of the veteran's claim, the Board concludes that the VA has adequately fulfilled its statutory duty to assist the veteran in the development of his claim. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). According to the pertinent regulatory provision, a temporary total disability rating will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to a non-bed care) or outpatient release that entitlement is warranted under paragraph (a)(1), (2), or (3) of this section effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. The termination of these total ratings will not be subject to § 3.105(e) of this chapter. Such total rating will be followed by appropriate schedular evaluations. 38 C.F.R. § 4.30 (1999). Total ratings will be assigned under § 4.30 if treatment of a service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a) (1999). A total rating awarded under § 4.30 may be extended as follows: (1) extensions of 1, 2, or 3 months beyond the initial three months may be made under paragraph (a)(1), (2), or (3) of this section and (2) extensions of 1 or more months up to 6 months beyond the initial 6 months period may be made under paragraph (a)(2) or (3) of this section upon approval of the Adjudication Officer. 38 C.F.R. § 4.30(b) (1999). Review of the claims folder in the present case indicates that, on June 7, 1995, the veteran underwent L3-L4-L5 decompressive laminectomies for relief of nerve root pressure. His pre and post-operative diagnosis was lumbar spinal stenosis. He was discharged two days after the surgery. Subsequent medical records illustrate follow-up care. Clearly, it was the veteran's lumbar spinal stenosis that necessitated the June 1995 surgery. Service connection has not been awarded for lumbar spinal stenosis. A complete and thorough review of the claims folder indicates that the veteran's only service-connected low back disability has been defined as lumbosacral strain. Because the condition requiring the surgery in June 1995 was not a service-connected disability, a temporary total rating for convalescence purposes cannot be awarded. See 38 C.F.R. § 4.30(a) (1999) (which stipulates that temporary total ratings will be assigned under § 4.30 if treatment of a service-connected disability results in (in relevant part) surgery necessitating at least one month of convalescence or surgery with severe postoperative residuals). The Board acknowledges that, throughout the current appeal, the veteran has asserted that his service-connected lumbosacral strain "worsened to the point where" it also resulted in spinal stenosis. See, e.g., T. at 7-10, 18. Significantly, however, the pertinent medical evidence which has been obtained and associated with the claims folder does not support this contention. In fact, in a January 1995 letter, a private physician expressed his opinion that the veteran's severe lumbosacral spinal stenosis, which necessitated the June 1995 surgery, "appears to be related to both congenital spinal stenosis and degenerative joint disease." The physician did not conclude that the veteran's lumbosacral spinal stenosis was caused by his service-connected lumbosacral strain. Increased Rating For Lumbosacral Strain Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Each disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27 (1999). The veteran's lumbosacral strain is currently evaluated as 40 percent disabling. Diagnostic Code 5295 provides that evidence of severe lumbosacral strain resulting in listing of the whole spine to the opposite side, a positive Goldthwaite's sign, marked limitation of forward bending in the standing position, 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 warrants the assignment of a 40 percent disability rating. 38 C.F.R. § 4.71a, Code 5295 (1999). (A 40 percent disability evaluation is the highest rating allowable for lumbosacral strain. Id.) At the August 1996 personal hearing, the veteran testified that he takes pain medication and wears a back brace constantly. T. at 6. According to recent pertinent post-service medical records, the veteran experiences pain and stiffness in his low back; wears a brace for lumbosacral support; and has bilateral (right greater than left) L5, S1 lumbar radiculopathies, weakened movement of his lumbosacral spine, and excessive fatigability. However, no evidence of motor, sensory, or reflex impairment in his lower extremities or incoordination has been shown. The veteran's lumbar mobility was described as markedly restricted in June 1996 and poor in January 1997. Thereafter, in May 1997, he showed functional range of motion in his lumbar spine without pain. Subsequently, however, at the August 1997 VA spine examination, the examiner concluded that, during flare-ups, the veteran's low back pain is greater, and the range of motion of his lumbar spine is even more decreased. Additional medical records illustrate the presence of other low back disabilities, including lumbar spinal stenosis requiring L3-L4-L5 decompressive laminectomies for relief of nerve root pressure in June 1995 as well as degenerative disc disease in the lumbar spine. As the Board has previously discussed in this decision, service connection has not been awarded, and indeed is not warranted, for either the veteran's lumbar spinal stenosis or the degenerative disc disease of his lumbar spine. In this regard, the Board notes that the examiner who conducted the August 1997 VA spine examination diagnosed "post-op" lumbosacral strain, "post-op" laminectomy with marked decreased range of motion, as well as degenerative disc disease with spinal stenosis and with marked decreased range of motion and pain radiating into the extremities. Clearly, this examiner has associated some of the marked decreased range of motion of the veteran's lumbar spine with his post-operative laminectomy residuals and some with his degenerative disc disease. Additionally, this examiner has associated the veteran's radiculopathy with his degenerative disc disease. The examiner did not refer either the decreased range of motion of the veteran's lumbar spine nor his radiculopathy with his lumbosacral strain. Regardless of the exact symptoms associated with the veteran's service-connected lumbosacral strain and the particular symptomatology related to his nonservice-connected lumbar spinal stenosis, post-operative laminectomy residuals, and degenerative disc disease of his lumbar spine, the fact remains that the veteran is currently receiving the maximum schedular rating allowable for his service-connected lumbosacral strain. See 38 C.F.R. § 4.71a, Code 5295 (1999). In this regard, the Board notes that, throughout the current appeal, the veteran has asserted that his service-connected low back disability should be evaluated under Diagnostic Code 5293, which rates impairment resulting from intervertebral disc syndrome. See 38 C.F.R. § 4.71a, Code 5293 (1999). In particular, at the August 1996 personal hearing, the veteran's representative cited the results of March 1995 EMG and NCV studies which provide evidence of radiculopathy. T. at 16, 18. (In this regard, the Board acknowledges that the report of these tests, which were completed in March 1995, reflect findings of bilateral (right greater than left) L-5, S-1 lumbar radiculopathies.) Significantly, however, as the Board has previously discussed in this decision, a VA physician initially expressed his opinion in a September 1997 document and subsequently confirmed his conclusions in an April 1998 statement that the veteran has degenerative disc disease and that his degenerative disc disease is not related to his service-connected lumbosacral strain. The physician explained that neither he nor his colleagues knew "of . . . [any] medical literature to support any relationship between a long ago low back injury and present day degenerative disease of the lumbosacral spine. In fact, the causes of degenerative disc disease and hypertrophic bony changes are general and unknown." According to this physician, "[m]ost degenerative disease of the lumbosacral spine in this world comes about without any history of injury." Based on this medical evidence, the Board concludes that evaluation of the veteran's service-connected lumbosacral strain under Diagnostic Code 5293, which rates impairment resulting from intervertebral disc syndrome, is not appropriate. See 38 C.F.R. § 4.71a, Code 5293 (1999). Therefore, because the veteran is currently receiving the highest allowable schedular rating for his service-connected lumbosacral strain, he may only receive a rating greater than 40 percent for this disability based upon extraschedular evaluation. In this regard, the Board acknowledges that the veteran testified at the August 1996 personal hearing that, as a result of his low back disability, he is unemployable. T. at 3. Additionally, the veteran's wife testified at this hearing that her husband does not lift anything, needs help taking out the garbage, cannot "put . . . up the food when . . . [they] go shopping," sits around the house, and falls when his legs give out on him (which she described was a "pretty constant" problem). T. at 11-13. In a March 1999 document, a former employer of the veteran stated that the veteran had last worked for him (as a concrete/plaster finisher) in September 1994. The employer, however, did not give the specific reason for the termination of the veteran's employment. Nevertheless, the evidence does not show an exceptional or unusual disability picture as would render impractical the application of the regular schedular rating standards. See 38 C.F.R. § 3.321 (1999). The current evidence of record does not demonstrate that the veteran's service-connected lumbosacral strain has resulted in frequent periods of hospitalization or marked interference with employment. Id. It is undisputed that lumbosacral strain has an adverse effect on employment, but it bears emphasis that the schedular rating criteria are designed to take such factors into account. The schedule is intended to compensate for average impairments in earning capacity resulting from specified disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1 (1999). Moreover, in an August 1996 letter, a private physician expressed his opinions that the changes brought on by the veteran's condition (including his post-operative laminectomy residuals, the degenerative disc disease of his lumbar spine, and the severe degenerative changes in his cervical spine) "are sufficiently severe that . . . [the veteran] will not be able to engage in manual type of work in the future. He will not be able to lift more than 20 lbs. of weight." The physician did not mention the veteran's service-connected lumbosacral strain. Clearly, this statement indicates that any unemployability that the veteran may experience is the result of his nonservice-connected spine disabilities rather than his service-connected lumbosacral strain. Therefore, given the lack of evidence showing unusual disability not contemplated by the rating schedule (with regard to the veteran's service-connected lumbosacral strain), the Board concludes that an extraschedular evaluation is not warranted. A review of the evidence indicates, therefore, that an evaluation of no more than 40 percent is warranted for the veteran's lumbosacral strain. ORDER Entitlement to service connection for degenerative disc disease of the spine is denied. Entitlement to a temporary total convalescent rating under the provisions of 38 C.F.R. § 4.30 based on laminectomy surgery performed on June 7, 1995 is denied. Entitlement to a disability rating greater than 40 percent for lumbosacral strain is denied. JEFFREY A. PISARO Acting Member, Board of Veterans' Appeals