Citation Nr: 0001141 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 95-33 053 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Evaluation of an old compression fracture of the spine at T12, currently rated as 10 percent disabling. 2. Evaluation of a medial meniscal tear with entrapment and chronic anterior cruciate rupture of the right knee, currently rated as noncompensably disabling. 3. Entitlement to service connection for spina bifida occulta. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. W. Koennecke, Associate Counsel INTRODUCTION The appellant served on active duty from October 1983 to July 1995. This case comes before the Board of Veteran's Appeals (the Board) on appeal from an August 1995 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). Preliminary review of the record does not reveal that the RO expressly considered referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The U. S. Court of Appeals for Veterans Claims (known as the United States Court of Veteran's Appeals prior to March 1, 1999) (hereinafter Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC 6-96. FINDINGS OF FACT 1. A demonstrable vertebral body deformity is present at T12. 2. Residuals of an old compression fracture at T12 is manifested by no more than characteristic pain on motion. 3. The appellant underwent a right partial medial meniscectomy during service. 4. Postoperative residuals of a right partial medial meniscectomy include pain. 5. Spina bifida occulta of the lumbar and thoracic spine is a congenital defect. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating, and no more, for demonstrable deformity of a vertebral body at T12, in addition to the 10 percent rating of residuals of an old compression fracture at T12, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. Part 4, § 4.71a, Diagnostic Codes 5285, 5295 (1999). 2. The criteria for a 10 percent rating, and no more, for residuals of a right partial medial meniscectomy have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5259 (1999). 3. Spina bifida occulta of the lumbar and thoracic spine is not a disease or injury within the meaning of applicable law or regulations providing compensation benefits. 38 C.F.R. § 3.303(c) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Increased Rating Claims Service connection was granted in August 1995 for medial meniscal tear with entrapment and chronic anterior cruciate rupture of the right knee (noncompensably disabling), and an old compression fracture of the spine at T12 (10 percent disabling). The appellant has perfected an appeal as to his disagreement with the assigned ratings. He contends that the medical evidence supports a 30 percent rating for his back and a 20 percent rating for his right knee. Where the claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of an evaluation for the disability, the claim continues to be well grounded as long as the rating schedule provides for a higher evaluation and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 225 (1995). In reaching the determinations below, the Board has considered whether staged ratings should be assigned. We conclude that there has been no evidence, statements or testimony submitted that demonstrates that the conditions addressed have significantly changed, and therefore uniform ratings are appropriate in this case. Fenderson v. Brown, 12 Vet. App. 119 (1999). The RO has met its duty to assist the appellant in the development of his claim. under 38 U.S.C.A. § 5107 (West 1991). Service medical records were obtained. Furthermore, there is no indication from the appellant or his representative that there is outstanding evidence which would be relevant to this claim. The Board notes that the rating decision on appeal was issued in August 1995 and based on a claim filed immediately after the appellant's release from active duty. However, as neither the appellant nor his accredited representative has identified any outstanding treatment evidence through the time when the Written Brief Presentation dated in November 1999 was filed, the Board finds that the RO has fulfilled its duty to assist. Disability evaluations are determined by the application of a schedule of rating which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate diagnostic codes identify the various disabilities. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1999); Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board has also considered the application of 38 C.F.R. § 4.40 and 4.45 when rating these disabilities. Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997); DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnson v. Brown, 9 Vet. App. 7, 10-11 (1996). In assessing the functional loss, if any, of a musculoskeletal disability, inquiry must be directed towards findings of less movement that normal; more movement than normal; weakened movement; excess fatigability; incoordination; and painful movement. In September 1986, the appellant complained of swelling in his right knee after jumping rope. On examination there was swelling, effusion and increased warmth in the right knee. Range of motion was full. There was no crepitus. The knee was tender over the medial joint line. The joint was stable. The diagnosis was probable medial collateral ligament strain and slight meniscal injury. In October 1986 the knee was better and the medial collateral ligament strain was said to be well-healed. He began rehabilitation of the right knee and returned in November 1986 complaining of pain and swelling. On examination there was slight swelling medially with effusion and tenderness over the medial joint line. The medial collateral ligament was nontender. Range of motion was full. The injury was said to be healing. In December 1986 he was evaluated for a right medial meniscal injury and admitted for surgery. He underwent a right partial medial meniscectomy for a medial meniscal tear and chronic anterior cruciate rupture in the right knee. In April 1988 he complained that the right knee felt swollen after he had pain while playing basketball. Range of motion was reduced, from 70-170 degrees. Lateral and medial stability was intact with negative Lachmann's and McMurray's signs. Moderate effusion was present. Traumatic effusion was diagnosed. A service examination in June 1988 noted minimal crepitus and good range of motion without pain in the right knee, however right knee pain was noted in another part of the report. A healed scar on the right knee was also noted. In November 1988 the appellant fell about 30-feet and landed on his feet. X-ray evaluation revealed what appeared to be a compression fracture of one vertebral body which was counted to be T12 on the lateral study. In December 1988 he complained of low back pain. On examination he tolerated motion, and there was no evidence of obvious deformity or neurologic deficit. Mechanical back pain was diagnosed. X- rays revealed spina bifida occulta with an almost entire involvement of the lumbar spine and possibly the last two levels of the thoracic spine. There was also some suggestion of an increase of the interpediculate distance of the lumbar spine. In January 1989 he had continued back pain with a positive straight leg raising test and normal deep tendon reflexes. Neurologic evaluation in January 1989 revealed no evidence of neurological impairment. A computed tomography scan conducted in March 1989 revealed spina bifida occulta at multiple levels without evidence of meningomyelocele, and wedging of the T12 vertebral body which was consistent with an old fracture. On evaluation in April 1989, there was full range of motion and no detectable neurological involvement. There was no motor weakness or atrophy. X-rays revealed about a 15 percent wedging at T12 that was stable. The spina bifida occulta had never produced pain or any neurological symptoms. He was diagnosed with an old compression fracture at T12. The appellant complained of low back pain through August 1989. In September 1989 he was said to be essentially fully recovered. In January 1990 he was generally doing well with brief, mild episodes of thoracic-lumbar pain. X-rays revealed slight wedging at T12 and were otherwise normal. He was tried at full duty. In July 1990 the appellant complained of mild point tenderness at T12-L1. There was full range of motion and heel-toe walking was normal. In September 1991 the appellant complained of back pain that radiated into his leg. The pain began after lifting weights. On examination the back was symmetrical and without edema. He had limited active range of motion secondary to pain. He was neurologically intact, and had tenderness of the T12 area. Chronic low back pain was diagnosed. X-rays in February 1992 revealed spina bifida occulta deformities throughout the lumbar spine with the exception of L4. There was Grade I reverse spondylolisthesis of L4 in relation to L5. On April 17, 1992 the appellant reported lumbosacral pain that occasionally radiated to the region of both sacroiliac joints. He had no leg pain or bowel/bladder symptoms. On examination there was no deformity. There was mild tenderness over the lumbosacral spine. The sacroiliac joints were nontender. He was able to flex and touch the floor. He had full extension. Sitting root test was negative. Lower extremity motor testing was 5/5 throughout. Knee jerk and ankle jerk reflexes were 2+ bilaterally. X- rays of his spine showed multiple congenital abnormalities including an apparent spina bifida at multiple levels. There was a mild retrolisthesis of L4 and L5 with no obvious pars defect. Disc spaces were well maintained and the sacroiliac joints appeared normal. A bone scan in April 1992 revealed increased uptake in the region of the 1st or 2nd sacral vertebra. This might have represented trauma (fracture); other etiologies were not excluded. The remaining skeletal structures were unremarkable. He was diagnosed with chronic low back pain with no evidence of spondylolisthesis or retrolisthesis. In August 1993 the appellant complained of right knee soreness. On examination there was no anterior knee pain, negative drawer sign, negative McMurray's sign and no effusion. There was tenderness over the medial collateral ligament and no joint line tenderness. A medial collateral ligament strain was diagnosed. In July 1994 he complained of low back pain. X-rays revealed spina bifida occulta of the lumbar vertebrae excluding L3. Pedicles were normal. Alignment of the vertebrae was normal and there was no spondylolysis or spondylolisthesis. Retrolisthesis at L4 and L5 was no longer seen. He continued to complain of back and neck pain in October and November 1994. In May 1995 he complained of tenderness in the right knee for three weeks. There was full range of motion. A medial collateral ligament sprain was diagnosed. In June 1995 he complained of right knee and back pain. On examination straight leg raising was negative and deep tendon reflexes were 3+. There was full range of motion in the right knee, and anterior and posterior drawer signs were negative. Varus and valgus signs were negative. Attached to the accredited representative's November 1999 Written Brief Presentation was a memorandum signed by a Senior Medical Consultant in support of the claim. The physician indicated that the record was reviewed. The appellant was said to be properly rated for his back condition which was a healed fracture of the T12 body. Spina bifida was a congenital abnormality. The appellant had surgery for removal of the meniscus; therefore it was the examiner's opinion that evaluation under Diagnostic Code 5257 for knee impairment with instability or subluxation was incorrect. Diagnostic Code 5259 covered removal of symptomatic semilunar cartilage, which is the meniscus and was considered the appropriate code. Compression Fracture of the Spine at T12 The appellant is in disagreement with the 10 percent evaluation assigned for residuals of an old compression fracture at T12. The appellant is currently rated under Diagnostic Code 5295 for lumbosacral strain which provides that for a severe disability; with listing of whole spine to opposite side, positive Goldthwait's sign; marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, a 40 percent rating is warranted. With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position, a 20 percent rating is warranted. With characteristic pain on motion, a 10 percent rating is warranted. With slight subjective symptoms only, a 0 percent rating is warranted. The Board has also considered evaluating this disability other Diagnostic Codes to determine whether a higher evaluation could be awarded. Diagnostic Code 5291 for limitation of motion of the dorsal (thoracic) spine provides for a 10 percent evaluation for severe or moderate limitation of motion and a noncompensable evaluation when limitation of motion is slight. However, the appellant is already rated at the maximum level of compensation for limitation of motion, therefore this Diagnostic Code does not afford him a higher evaluation. A separate evaluation under this Diagnostic Code is not permitted as the rating schedule specifically requires the avoidance of "pyramiding" or evaluating the manifestations of the same disability under various diagnoses, 38 C.F.R. § 4.14 (1999). Since the criteria for Diagnostic Code 5295, lumbosacral strain, includes consideration of limitation of motion, evaluating the same disability separately under both Diagnostic Code 5295 and Diagnostic Code 5291 is prohibited. Diagnostic Code 5285 for residuals of vertebral fractures assigns a 100 percent evaluation with cord involvement, when bedridden or requiring long leg braces. Without cord involvement but with abnormal mobility requiring a neck brace, a 60 percent evaluation is assigned. In other cases, the disability is rated in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of the vertebral body. Competent, unrefuted evidence of a compression fracture at T12 has been presented, therefore the evidence supports a 10 percent evaluation for a demonstrable deformity of a vertebral body under Diagnostic Code 5285. The preponderance of the evidence is against a higher evaluation under this code because there was no cord involvement due to the fracture. A neurological evaluation in January 1989 specifically indicated that there was no neurological involvement due to the fracture at T12. The preponderance of the evidence is against a higher evaluation under Diagnostic Code 5295 for lumbosacral strain. The appellant has complained of low back pain since the inservice fall in November 1988. There was full range of motion in July 1990. Range of motion was limited due to pain in September 1991, however loss of lateral spine motion was not indicated. In April 1992 he exhibited full flexion and could touch the floor, as well as full extension. Muscle spasm has not been identified with extreme forward bending. Accordingly, the preponderance of the evidence is against a higher evaluation under this Diagnostic Code. The Board has specifically considered the guidance of DeLuca v. Brown, 8 Vet. App. at 202; 38 C.F.R. §§ 4.40 and 4.45 in making its determination. However, the Court has specifically limited the applicability of DeLuca to limitation of motion and the appellant is already in receipt of the maximum evaluation for a limitation in range of motion. Johnston v. Brown, 10 Vet. App. 80 (1997) With regard to an increased rating for old compression fracture of T12, other than by the additional grant of 10 percent for demonstrable deformity of a vertebral body, the preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49 53 (1990). Medial Meniscal Tear with Chronic Anterior Cruciate Rupture of the Right Knee The appellant has voiced disagreement with the noncompensable evaluation assigned for his right knee disability. The appellant is currently evaluated under Diagnostic Code 5257 which provides for other impairments of the knee. For severe recurrent subluxation or lateral instability, a 30 percent rating is warranted. For moderate recurrent subluxation or lateral instability, a 20 percent rating is warranted. For slight recurrent subluxation or lateral instability, a 10 percent rating is warranted. Diagnostic Code 5259 provides for a 10 percent evaluation for removal of semilunar cartilage, symptomatic. Residuals of surgery can also be rated to include a Diagnostic Code related to the post-surgical scar if applicable. Diagnostic Code 7804 provides for a 10 percent evaluation for superficial scars that are tender and painful on objective demonstration. Absent X-ray evidence of arthritis, evaluation under the rating criteria for arthritis is not appropriate. The Board agrees that this right knee disability is more properly rated under Diagnostic Code 5259 for removal of semilunar cartilage. The appellant underwent partial meniscectomy in December 1986 for a medial meniscal tear and chronic anterior cruciate rupture in the right knee. Postsurgically, he continued to complain of pain on occasion. Therefore, a 10 percent evaluation is warranted under this Diagnostic Code. This is the maximum evaluation under this code. The preponderance of the evidence is against a compensable evaluation under Diagnostic Code 5257 for symptomatology involving recurrent subluxation or lateral instability. The joint was stable post-surgically in April 1988, and varus and valgus signs were negative in June 1995. In Esteban v. Brown, 6 Vet. App. 259, 262 (1994), the Court held that evaluations for distinct disabilities resulting from the same injury could be combined so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. Assignment of a separate rating under the Diagnostic Codes involving flexion or extension would violate the prohibition against pyramiding since the appellant is evaluated under the Diagnostic Code for residual postoperative symptomatology. This code refers to "symptomatic" removal of the semilunar cartilage. The symptoms are not specified in the rating code. However, the criteria for evaluating a dislocated semilunar cartilage include "locking," which is a form of limitation of motion. Accordingly, limitation of motion is contemplated under Diagnostic Code 5259. However, even if the applicable Diagnostic Code did not contemplate limitation of motion, there is no evidence of any limitation of motion on which a separate evaluation might be assigned. The preponderance of the evidence is against a separate evaluation under Diagnostic Code 7804 for the postsurgical scar as a healed scar was noted in June 1988, and there is no evidence that it is tender, painful, or repeatedly ulcerated. The Board has considered the appellant's complaint of pain after surgery. The provisions of 38 C.F.R. § 4.59 (1999) further clarifies that 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 Board concludes that the current assignment of a 10 percent evaluation under Diagnostic Code 5259 contemplates and compensates the appellant's painful right knee joint. The Board has specifically considered the guidance of DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40 and 4.45 in making its determination. However, the Court of Veteran's Appeals has specifically limited the applicability of DeLuca to limitation of motion. See, Johnson v. Brown, 9 Vet. App. 7, 10-11 (1996). Accordingly, since there has been full range of motion in the knee postsurgically in June 1988, May 1995, and June 1995, functional impairment equivalent to limitation in flexion to 30 degrees or limitation in extension to 15 degrees thereby warranting a higher evaluation has not been presented. With regard to the claim for an increased rating due to recurrent subluxation or lateral instability, the preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b), Gilbert, 1 Vet. App. at 49. Service Connection for Spina Bifida Occulta Service connection for spina bifida occulta was denied in August 1995 on the basis that it is a congenital/developmental abnormality. The appellant has contended that there is no medical evidence or opinion to support the RO's finding. He stated that spina bifida was not diagnosed at his entry examination and that the presumption of soundness was not rebutted. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Regulations also provide that service connection may be granted for any 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) (1999). Congenital or developmental defects as such are not diseases or injuries within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. § 3.303(c) (1999). Service medical records were reviewed and there is no entrance examination of record. Spina bifida occulta was first identified in the lumbar and thoracic spine in service in about January 1989 during follow-up evaluation after a November 1988 fall and fracture of T12. In an April 17, 1992 orthopedic evaluation report, the examiner stated that X-rays of the spine had revealed multiple congenital abnormalities including an apparent spina bifida at multiple levels. Under 38 C.F.R. § 3.303(c), VA recognizes that congenital or developmental defects are not diseases or injuries within in the meaning of applicable legislation. Contrary to the appellant's contention, there is competent medical evidence that spina bifida occulta at multiple levels is a congenital abnormality in this appellant. Thus, the Board finds that the RO's determination is substantiated. The Board notes that since the RO's determination in August 1995, neither the appellant nor his accredited representative has submitted a medical opinion to refute the RO's determination or the inservice medical determination that spina bifida occulta is a congenital abnormality. The appellant and his representative have known since August 1995 of the basis of the RO's decision and have had a chance to submit additional evidence but declined to do so. See Tidwell v. West, No. 96-1778 (U.S. Vet. App. Feb. 13, 1998), slip op. at 4-5 (addressing Colvin v. Derwinski, 1 Vet. App 171 (1991) and Thurber v. Brown, 5 Vet. App. 119 (1993)). The appellant is not competent as a lay person to offer evidence refuting the inservice medical determination. Layno v. Brown, 6 Vet. App. 465. 469-70 (1994). In fact, the memorandum of a Senior Medical Consultant submitted by the appellant's representative specifically concluded that spina bifida was a congenital abnormality. The Board has considered the appellant's contention that he was entitled to a presumption of soundness which was not rebutted by the evidence of record, thereby warranting service connection. However, spina bifida in this appellant is a congenital defect and as such not a disease or injury within the meaning of the applicable legislation. 38 C.F.R. § 3.303(c) (1999). There is no medical evidence that it is not a congenital defect, and the medical evidence on point is specifically adverse to the appellant's position. Therefore, the regulations regarding the attachment of a presumption of soundness are not to be applied to the appellant's congenital defect. In other words, congenital or developmental defects may not be service connected because they are not diseases or injuries under the law. VAOPGCPREC 82-90 (Precedent opinion of the General Counsel of VA). The Board notes that although a congenital or developmental defect, such as spina bifida occulta, is not a disease or injury within the meaning of legislation applicable to service connection, service connection may be granted if during military service the defect is subject to superimposed disease or injury. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (1999). See also VAOPGCPREC 82-90. However, to the extent that there has been superimposed injury as a result of the inservice fall, service connection for a compression fracture of the spine has been granted as a distinct ratable entity, not as aggravation of the congenital defect. No competent evidence has been presented that shows that spina bifida occulta results in disability in this appellant. The examiner in April 1989 stated there was no indication that spina bifida occulta had ever produced pain or any neurological symptoms. No competent evidence has been presented that indicates that an inservice injury aggravated the congenital spina bifida occulta. Where the law and not the evidence is dispositive, the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law. Sabonis v Brown, 6 Vet. App. 426, 430 (1994). ORDER A 10 percent evaluation for a demonstrable deformity of a vertebral body (T12), in addition to the 10 percent rating for residuals of old compression fracture of T12 is granted, subject to the controlling regulations applicable to the payment of monetary awards. A 10 percent evaluation for residuals of a partial medial meniscectomy is granted, subject to the controlling regulations applicable to the payment of monetary awards. Service connection for spina bifida occulta in the lumbar and thoracic spine is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals