BVA9507275 DOCKET NO. 93-11 887 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased (compensable) evaluation for cervical/thoracic muscle strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Nancy R. Kegerreis, Associate Counsel INTRODUCTION The veteran served on active duty from June 1981 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) from a September 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied a compensable evaluation for cervical/thoracic muscle strain. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, essentially, that while he was in the Navy, he had neck pain which was so severe that he was immobilized for two days and that the pain had recently recurred every time he tried to move his neck. He stated that he did not have any other symptoms in his neck or arms. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports a 10 percent disability evaluation for a cervical/thoracic muscle strain with pain on motion. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran's cervical/thoracic muscle strain is currently manifested by pain on motion and by x-ray evidence of kyphosis, but without muscle spasm, tenderness, loss of muscle strength or limitation of motion. CONCLUSION OF LAW The criteria for a 10 percent evaluation for cervical/thoracic muscle strain have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1-4.16, 4.40-4.54; 4.71(a), Diagnostic Code 5290 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that he has presented a claim which is plausible. We are also satisfied that all relevant and available facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). I. Background Service medical records reveal an episode of stiff neck and pain at the posterior base of the neck when turning the head in conjunction with lower back pain following heavy lifting in March 1983. There had been no history of back or neck pain or injury before. Range of motion in right rotation was 60 degrees and in left 80 degrees, with pain. Flexion and extension were within normal limits. The assessment was mild wry neck, resolving following rest, medication, and the application of heat. In May 1990, the veteran had a similar episode of acute neck pain and stiff neck after lifting boxes. He denied fever or upper respiratory symptoms. There was no radicular pain or headache. He was observed to hold his neck rigidly. The neck was very tender with spasm on the posterior/left trapezius area of the neck. The assessment was acute cervical/trapezius trauma. Several follow-up examinations noted bilateral shoulder and neck pain after heavy lifting, with reported gradual improvement. The neck continued to show mild bilateral trapezius spasm and tenderness, with decreased range of motion diffusely. Although the pain gradually decreased, the veteran still had some pain along the upper thoracic area when he bent or rotated his neck. He continued to deny neck injury, numbness, weakness, or fever or upper respiratory symptoms. Later in May, a follow-up examination showed the trapezius strain was much improved. The neck had a free range of motion on both forward flexion and lateral rotation. Some tenderness remained, but without spasm. The assessment was resolving trapezius strain. An x-ray, dated in May 1990 showed that the veteran had a kyphotic curve. There was no compression fracture or acute bony change. The thoracic spine showed that the bony alignment was anatomic. Vertebral body heights and disc spaces were well maintained. The pedicles were intact at all levels. The impression was normal thoracic spine. A September 1990 radiologic report showed that the cervical spine demonstrated straightening, but was otherwise unremarkable. The veteran was noted to have 13 thoracic vertebral segments, but otherwise, the thoracic spine appeared unremarkable. Impression was negative skeletal survey. The cervical spine straightening could have been secondary to muscle spasm or improper positioning. In August 1991, the veteran was afforded a neurologic examination for disability purposes, primarily for a right leg disorder. As to symptoms relating to his neck, he had had occasional pain in the right and left hand after doing a lot of driving and chipping in the service working on a ship. He had first noted some neck pain and stiffness associated with lifting 70 to 80 pound boxes about three years before. About one year previously, he had another flare-up, which was again associated with grinding and chipping and lifting similar weights on a ship. This was accompanied by some thoracic pain in the spine. He never had any numbness or tingling in the arms associated with this neck problem. Upon examination the veteran had a neck range of motion of 80 percent of flexion, 60 percent of extension, with some pain in the mid-thoracic area with that maneuver. There was 80 percent of rotation bilaterally and a positive Spurling test, giving right trapezius pain on right Spurling maneuver. There were 45 degrees of tilt bilaterally with the left tilt causing pain of the right trapezius as well. The neck demonstrated no tenderness on examination. The upper extremities had no sensory change and a negative Tinel's bilaterally. Muscle strength of the upper extremities was 5/5 throughout, indicating normal muscle strength. There was no evidence of continued cervical strain. At his January 1992 hearing, the veteran testified that he had no problems with reflexes in his upper extremities. He said that when he was in the Navy he had a stiff neck. He was immobilized for two days and could not move at all. Every move was painful; even lying down was painful. Then, three weeks prior to his hearing the neck pain recurred to a lesser extent, but still with some restriction and limitation of motion. The pain and stiffness lasted two weeks. The veteran took Advil to relieve his discomfort. The veteran underwent a special orthopedic examination in February 1992. Medical history revealed that the veteran had been a storekeeper in the Navy. In 1983 he began to notice wasting of his left lower extremity and began to have pain in his calf and in the ball on the plantar aspect of his first metatarsal phalangeal joint. He had noticed decreased dorsiflexion during the past several years, as well as significant atrophy of the right calf. He also stated that he had cervical neck pain, although this was not accompanied by decreased sensation or strength in his bilateral upper extremities. The pain did not radiate into his upper extremities, but was confined solely to his cervical neck region. The veteran believed that this problem began while he was in the Navy. Although the examiner's impression was that the veteran had motor neuron disease of the right lower extremity, he could find no significant neurological abnormality or limitation in range of motion of the cervical spine. In May 1992, the veteran underwent a VA examination for peripheral nerves. The examiner noted that he had seen the veteran the previous year for possible motor neuron disorder and that his condition had been essentially the same since that time. The veteran reported difficulty initiating movement in his hands and experienced a sharp pain in the wrists and middle digits of both hands, the left worse than the right. He noted that when he attempted to type, he experienced pain in his hands. A sensory examination was intact to light touch, vibration, and joint position sense. Tinel's sign was negative at the wrist and elbows. A motor examination of the upper extremities showed the muscles to be 5 bilaterally. No atrophy or fasciculations were noted visually. Deep tendon reflexes of the triceps and biceps were 2+ bilaterally. Brachioradialis was 2 bilaterally. Hoffmann's sign was positive on the right and negative on the left. The sole diagnosis, limited to the right leg, was motor neuropathy, cause unknown. The veteran underwent a special neurologic examination in January 1993 following electromyography (EMG) and magnetic resonance imaging (MRI) of the pelvis, leg, and lower back to determine the nature of atrophy in the right lower extremity. The examiner limited his observations to the lower extremities, but noted that the problem did not appear to be generalized, and it was unlikely that further degeneration of other extremities or the rest of his nervous system would occur. II. Analysis Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. See 38 U.S.C.A. § 1155 (West 1991). Each disability be evaluated in light of the veteran's medical and employment history, and from the point of view of the veteran's working or seeking work. See 38 C.F.R. §§ 4.1, 4.2 (1994); Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991). The veteran is currently evaluated under 38 C.F.R. § 4.71(a), Diagnostic Code 5290 (1994), pertaining to limitation of motion. Pursuant to this code, a severe limitation of motion of the cervical spine warrants a 30 percent evaluation, a moderate limitation of motion a 20 percent evaluation and a slight limitation of motion a 10 percent evaluation. Since the veteran has not been found to have any limitation of motion of the cervical or thoracic spine, a compensable evaluation under this code is not warranted. On the other hand, the Board notes that a May 1990 x-ray showed a kyphotic curve of the thoracic spine and a September 1990 radiologic examination revealed a straightening of the cervical spine. Additionally, during the veteran's August 1991 examination, pain on motion was objectively demonstrated. VA regulations provide that functional loss [of a part of the musculoskeletal system] may be due to. . . pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (1994). The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (1994). In weighing the medical evidence and in consideration of the veteran's hearing testimony, the Board finds that the veteran has a functional loss due to pain on motion of the cervical and thoracic spine. See Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). Accordingly, the Board finds that a 10 percent evaluation for a cervical/thoracic muscle strain is warranted. ORDER A compensable evaluation of 10 percent for cervical/thoracic muscle strain is granted, subject to regulations governing the payment of monetary benefits. WARREN W. RICE, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.