BVA9506158 DOCKET NO. 92-19 604 ) DATE ) ) On appeal from a decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of injuries to the face and neck. 2. Entitlement to service connection for residuals of a head injury with headaches. 3. Entitlement to an increased evaluation for arthralgia of the right hip, currently evaluated as 10 percent disabling. 4. Entitlement to an increased evaluation for low back disability, currently evaluated as 10 percent disabling. 5. Entitlement to an increased evaluation for bipolar disorder, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sheila A. Lawson, Associate Counsel INTRODUCTION The veteran had active service from April 1978 to September 1978, from December 1979 to October 1981, from July 1986 to December 1986 and from February 1987 to July 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1990 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 1991, the veteran testified at a hearing at the RO. In March 1993, the Board remanded the veteran's case to the RO for further development. The Board notes that on remand, a surgical examination was not scheduled for the purpose of evaluating the veteran's scars; nonetheless, the Board is of the opinion that the examiner's comments pertaining to her facial scarring, made during the May 1994 VA examination, are sufficient to evaluate the veteran's claimed disability. Moreover, the Board is cognizant of the statements of the veteran's representative regarding the availability of the veteran's claims file to the examiners prior to the examinations conducted pursuant to the March 1993 remand. In response, the Board acknowledges that the October 1993 VA psychiatric examination report indicates that an earlier examination was conducted without benefit of the veteran's claims folder. The Board points out, however, that the claims folder was available during the October 1993 examination, and there is no evidence that the claims folder was not made available to each examiner prior to the May 1994 examinations conducted pursuant to the Board's March 1993 remand. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that she is entitled to service connection for residuals of injuries to her face and neck and for residuals of a head injury with headaches. In support of these contentions, the veteran points out that during service, she was involved in a mishap in which a plumber's steel drainage instrument struck her in the face, neck and back. She asserts that she has facial scarring, neck pain and headaches as a result of this incident. The veteran also asserts that the 10 percent evaluations assigned for service-connected right hip arthralgia and low back disabilities are too conservative and should be increased. 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. After review of the relevant evidence in this matter, and for the following reasons and bases, the Board concludes that the evidence is at least in equipoise and thus supports the veteran's claim for service connection for residuals of injuries to the face and neck, but that the preponderance of the evidence is against her claim of entitlement to service connection for headaches resulting from an inservice head injury. The Board also finds that the preponderance of the evidence is against the veteran's claims of entitlement to increased evaluations for right hip and low back disabilities and bipolar disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's current slight facial scarring and neck disability are the results of service trauma. 3. The veteran's current headaches are not the result of service trauma. 4. The veteran's right hip disability is manifested by pain; she has good range of motion in both hips with full extension, active flexion of 125 degrees, 45 degrees of abduction, 40 degrees adduction, 25 degrees of external rotation and 30 degrees of internal rotation. 5. The veteran's low back disability is manifested by pain on motion and is not productive of more than mild disability. 6. The veteran's bipolar disorder is manifested by moderate mood swings and is not productive of definite impairment. 7. No unusual or exceptional disability factors have been presented. CONCLUSIONS OF LAW 1. Slight facial scarring and neck disability were incurred during service. 38 U.S.C.A. § 1110 (West 1991). 2. Headaches were not incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 1991). 3. The criteria for an evaluation in excess of 10 percent for arthralgia of the right hip have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a. Diagnostic Codes 5003, 5251, 5252, 5253 (1994). 4. The criteria for an evaluation in excess of 10 percent for low back disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), Part 4, Diagnostic Codes 5292, 5295 (1994). 5. The criteria for an evaluation in excess of 10 percent for bipolar disorder have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.132 Diagnostic Code 9206 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claims are plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). When a veteran submits well-grounded claims, VA must assist her in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant evidence has been obtained and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). The veteran had several periods of active service in the post- Vietnam era. Her service medical records reflect treatment for a number of conditions unrelated to this appeal. With reference to the issues presently before the Board, the veteran's service medical records show that in September 1980, she was involved in an automobile accident when the car in which she was riding veered off the road, and she struck her neck and head on the dashboard. The veteran's service records also reflect that in October 1980, she was in a lavatory washing her hands when a plumber's steel drainage instrument (plumber's snake) struck her in the face, neck and back. Apparently the plumber's snake was stuck in a drain, and other service personnel, unaware of the veteran's presence in the lavatory, attempted to remove the plumber's snake by attaching it to a truck. During the removal process, the plumber's snake broke and hit the veteran in the face, neck and back. Following this incident, the veteran sought emergency treatment for trauma to the face and neck. Emergency treatment records show that the veteran had a one-centimeter linear laceration over the left infra orbital area and a one and one-half centimeter v-shaped laceration over the bridge of her nose. The examiner noted the presence of a hematoma over the right front temporal area with no bony abnormalities, and decreased range of motion of the veteran's neck with complaints of pain. There was no evidence of neurological or sensory deficits and the veteran was diagnosed as having facial lacerations and contusions. The remainder of the veteran's service medical records show that she continually complained of back and neck pain following the above-mentioned incident involving the plumber's snake, but did not complain of headaches as a result of this incident. Although her service medical records show that in the nearly 8 year period following this incident and her separation in 1988, she complained of headaches on three occasions, when completing reports of medical histories in conjunction with physical examinations in July 1984 and April 1986, she responded negatively to the question whether she currently or ever had frequent, severe headaches. In July 1988, the veteran was separated from service after a Medical Board determined that she was unfit for full duty due to congenital skeletal dysplasia. In August 1989, the veteran underwent a VA examination, during which she complained of headaches, back pain and neck pain radiating into her left arm and hip, and right hip pain. During the examination, the veteran reported neck pain since 1980, when the mishap involving the plumber's snake occurred. At the conclusion of the examination, she was diagnosed as having chronic headaches of unknown etiology, possible cervical radiculopathy vs. articular or peri-articular pathology and low back pain without radiculopathy. Records of private hospitalization for a disability unrelated to this appeal, dated from November 1988 to June 1989, reflect complaints of, inter alia, headaches, vertigo and neck pain. During a September 1991 hearing at the RO, the veteran recounted her inservice injuries and expressed her opinion that her current medical disabilities are related to these injuries. In October 1993, the veteran underwent a VA psychiatric evaluation, during which the examiner noted that although the veteran's claims folder had not been made available to an examiner during a previous examination, he had obtained and reviewed the veteran's file prior to the examination. Although this particular evaluation was conducted in reference to a disability not presently before the Board, it is noted that during the course of the examination, the veteran informed the examiner of the incident involving the plumber's snake and indicated that she had received facial lacerations as a result. The examiner commented that surgery to repair the lacerations was very successful as there remained only faint evidence of a scar. Pursuant to the Board's March 1993 remand, the veteran underwent several VA examinations in May 1994. During an orthopedic examination, the veteran complained of persistent dull ache over the outer aspect of her right buttock, a persistent dull ache and stiffness in the lower neck with frequent headaches, and recurrent pain and stiffness in the lower back. Clinical examination revealed the veteran to be holding her neck straight, with soreness in the lower cervical region at C5-C6 and C6-C7, in midline and over the corresponding posterior articulations, as well as over the spinous process of C7. Range of motion in the neck was very satisfactory with an active flexion of 35 to 40 degrees, 30 degrees extension, about 30 degrees of flexion to the right and left, and almost 70 degrees of rotation to the sides. The examiner noted that from all motions, forward bending was the least well tolerated and produced discomfort in the C5-C6 and C6- C7 regions. Examination of the upper back displayed tenderness from D4 to D6, but axial compression of the spine was well tolerated. The examiner reported that the veteran's low back displayed prominent lumbar lordosis with some tenderness across the lumbosacral junction, but no particular soreness over the sciatic notches. The examiner noted the following range of motion of the veteran's low back: active flexion of 65 degrees, extension of 30 degrees, approximately 30 degrees of flexion to the sides and 45 degrees rotation to the sides. The examiner also noted that from all motions, bending forward, backward and rotation to the left were the least well tolerated, increasing discomfort in the region of the right great trochanter. The veteran had good range of motion in both hips with full extension, active flexion of 125 degrees, 45 degrees of abduction, 40 degrees adduction, 25 degrees of external rotation and 30 degrees of internal rotation. Neurologically, there was no evidence of sensory deficit in the lower extremities, and knee and ankle jerk reflexes were judged to be active and equal. There was no weakness or dorsiflexion in the feet, and straight leg raising was well tolerated on both sides up to 80 degrees. At the conclusion of the examination, the veteran was diagnosed as having, inter alia, mechanical low back syndrome, prominent lumbar lordosis with a transitional lumbosacral junction, lumbarization of S1 with fusion of the lumbarized transverse process of L6 to the sacrum, a spina bifida of L6 and bilateral defects in the posterior lamina of L6, cervical spondylosis with primary involvement of the cervical disc C5-C6 and C4-C5, and degenerative changes in the upper dorsal spine. The examiner commented that the veteran must have sustained significant injuries to her neck in the September 1980 automobile accident and the October 1980 incident involving the plumbing equipment, in view of her having been knocked to the floor by the plumber's snake and her current definite obstruction of the cervical line at C5-C6 with degenerative changes in the C5-C6 discs, slight posterior bulging at C5-C6 and slight degenerative changes at C4- C5. A neurological examination was essentially normal, and the examiner noted that the veteran's range of motion of the cervical spine was 85 degrees in right and left rotation, and that she had negative straight leg raising to 90 degrees. The examiner assessed the veteran as having mixed vascular tension headaches, C7-8 radiculopathy vs. peripheral neuropathy of the ulnar nerve and chronic low back pain, most likely due to lumbar back strain or possibly early degenerative changes. With reference to the diagnosis of mixed vascular tension headaches, the examiner suggested that it was possible that the veteran's headaches were post-traumatic in origin as she did not have a complaint of headaches prior to her inservice trauma, and noted that there was no evidence of increased intracranial pressure or focal neurological deficit. An October 1993 VA psychiatric evaluation revealed that the veteran had been employed as a bank teller since May 1993, and had missed only two days of work. The veteran reported that her time off was due to a physical problem unrelated to the issues on appeal. During the examination, the veteran attributed various disabilities, including an 80 pound weight gain, hormone imbalance and bipolar disorder to a tubal ligation she had during service. The examiner reported that the veteran demonstrated may nervous mannerisms, primarily of an abrupt, bouncy nature, and that her speech was accelerated, loosely connected and marked by nervous mannerisms and silly giggles or hoarse laughter. The examiner noted that the veteran was clearly labile and showed mood swings of a moderate extent. The veteran denied homicidal and suicidal ideations, as well as problems with alcohol or chemical substances. The examiner also noted that the veteran's attitude was congenial, silly and changeable, and that her general mood was anxious with rapid changes to sadness and then to excitement with jovial mannerisms. Her stream of talk was relevant and coherent, but impulsive and expansive. The examiner found that the veteran was not difficult to interrupt and that her amusing irrelevancies and jokes were generally theatrical, and stated that the term hypomania seemed more appropriate even though the veteran seemed capable of more severe clinical manifestations in the affective spheres. The examiner indicated that although there were no clear-cut delusions or hallucinations, he also noted that the veteran had unusually strong optimism about a possible hormonal basis for her mental impairment. The examination report reflects that the veteran's cognitive abilities were erratic, and that she had a good fund of information. The examiner concluded that the veteran was a bright woman whose abilities decompensated under stress, and that she was capable of handling her own funds. I. Entitlement to service connection for residuals of a facial and neck injury. As indicated previously, while a surgical examination was not conducted in accordance with the Board's March 1993 remand, during an October 1993 psychiatric evaluation, the examiner noted that there was only faint evidence of a scar resulting from the veteran's mishap with the plumber's snake during. In view of the veteran's service medical records indicating that the veteran sustained facial lacerations as a result of having been struck with a plumber's snake, and the examiner's notation regarding the presence of a faint scar, the Board concludes that the preponderance of the evidence supports her claim of entitlement to service connection for such. See 38 U.S.C.A. § 5107(b) and Gilbert v. Derwinski, 1 Vet.App. 49, 53-56 (1990). With reference to the veteran's claim for service connection for residuals of a neck injury, at the conclusion of the May 1994 orthopedic examination, the examiner commented that the veteran must have sustained significant injuries to her neck in the September 1980 automobile accident and the October 1980 incident involving the plumbing equipment, in view of her having been knocked to the floor by the plumber's snake and her current definite obstruction of the cervical line at C5-C6 with degenerative changes in the C5-C6 discs, slight posterior bulging at C5-C6 and slight degenerative changes at C4-C5. After reviewing the May 1994 VA examination report in conjunction with the entire record, including the veteran's service medical records that show numerous complaints of neck pain from the time of the October 1980 incident and her 1988 separation, the Board concludes that an approximate balance of positive and negative evidence exists with respect to the veteran's claim, and as such, she must prevail under the benefit of the doubt principle set forth in 38 U.S.C.A. § 5107(b) and Gilbert v. Derwinski, 1 Vet.App. 49, 53-56 (1990). II. Entitlement to service connection for residuals of a head injury with headaches. As indicated previously, apart from 3 complaints of headaches following both the veteran's September 1980 automobile accident and the October 1980 mishap with the plumber's snake, the first of which was approximately three months after the latter incident, the veteran's service medical records are negative for evidence of complaints, treatment or findings of headaches. On the contrary, when completing medical documents in July 1984 and April 1986, the veteran stated that she did not have frequent severe headaches. While the neurologist's statement, rendered in May 1994, as to the possibility that the veteran's headaches were post-traumatic in origin, serves to establish that the veteran's claim for such headaches is well grounded under 38 U.S.C.A. § 5107 (West 1991) and Grottveit v. Brown, 5 Vet.App. 91 (1993), the Board points out that this statement was rendered on the basis of the veteran's history of having such headaches, and is not supported by the medical evidence of record. As such, the Board concludes that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for headaches. 38 U.S.C.A. § 5107(b) (West 1991), and Gilbert, supra. III. Entitlement to an increased evaluation for right hip disability. In accordance with 38 C.F.R. §§ 4.1, 4.2 (1994) and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of right hip disability, and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. In the present case, the veteran's right hip disability has been rated by analogy to degenerative arthritis. See 38 C.F.R. §§ 4.71a, Diagnostic Code 6204, 4.20 (analogous ratings for unlisted conditions); see also Pernorio v. Derwinski, 2 Vet.App. 625, 629 (1992). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1994). The Board attempts to determine the extent to which the veteran's service- connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.10 (1994). Under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5300, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When the limitation of motion of the specific joint of joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of joints affected by limitation of motion, to be combined, not added, under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, a 10 percent evaluation is warranted with X-ray evidence of involvement of 2 or more major joints or two or more minor joint groups. According to Diagnostic Codes 5252 and 5253, respectively, 20 percent evaluations are warranted for limitation of flexion of the thigh to 45 degrees and limitation of abduction of the thigh with motion lost beyond 10 degrees. In view of the findings reflected in the May 1994 VA examination report, the veteran had good range of motion in both hips with full extension, active flexion of 125 degrees, 45 degrees of abduction, 40 degrees adduction, 25 degrees of external rotation and 30 degrees of internal rotation. Thus, the Board concludes that the evidence does not demonstrate the presence of sufficient limitation of motion or any other functional impairment in excess of that contemplated by the assigned evaluation. IV. Entitlement to an increased evaluation for low back disability. Under 38 C.F.R. Part 4, Code 5295, a 20 percent evaluation is warranted for lumbosacral strain where there is muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. The highest evaluation, 40 percent, is warranted for severe lumbosacral strain with listing of the entire spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a 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. Degenerative arthritis established by X-ray findings will be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. Part 4, Code 5003. Limitation of motion of the lumbar spine warrants a 20 percent evaluation if it is moderate or a 40 percent evaluation if it is severe. 38 C.F.R. Part 4, Code 5292. Evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (1994). The Board notes that the RO's assignment of a 10 percent evaluation is based upon mild impairment of the veteran's spine. Thus, the essential question for our consideration is whether the demonstrated functional impairment meets the requirements for a rating in excess of 10 percent. The evidence of record shows that the veteran had active flexion of 65 degrees, extension of 30 degrees, approximately 30 degrees of flexion to the sides and 45 degrees rotation to the sides. The examiner also noted that from all motions, bending forward, backward and rotation to the left were the least well tolerated, increasing discomfort in the region of the right great trochanter. Thus, while her service-connected lumbar spine disability is currently manifested by pain on motion, this symptom is consistent with the assigned evaluation, that contemplates mild functional impairment of the lumbar spine. The evidence does not demonstrate the presence of sufficient limitation of motion or any other functional impairment in excess of that contemplated by the assigned evaluation. V. Entitlement to an increased evaluation for bipolar disorder. According to 38 C.F.R. § 4.130 (1994), the severity of a psychiatric disability is based upon actual symptomatology, as it affects social and industrial adaptability, and provides that two of the most important determinants of disability are time lost from gainful employment and decrease in work efficiency. Under the provisions of 38 C.F.R. § 4.132 (1994), a 30 percent evaluation is warranted when such a disorder produces definite impairment of social and industrial adaptability. In the present case, the evidence reflects that although the veteran is clearly labile with moderate mood swings, she also is a bright woman whose abilities decompensated under stress. She has been employed as a bank teller since May 1993, and has not reported, nor does the evidence of record reflect, any employment complications resulting from her service-connected bipolar disorder. Thus, the evidence does not demonstrate disability of such an extent as to more nearly approximate the definite social and industrial inadaptability required for a 30 percent evaluation under Diagnostic Codes 9206 and 9210. See 38 C.F.R. § 4.7 (1994). Moreover, no unusual or exceptional disability factors warranting extraschedular consideration have been presented. ORDER Entitlement to service connection for residuals of injuries to the face and neck is granted. Entitlement to service connection for residuals of a head injury, to include headaches, is denied. Entitlement to an increased evaluation for right hip disability is denied. Entitlement to an increased evaluation for low back disability is denied. Entitlement to an increased evaluation for bipolar disorder is denied. ROBERT E. SULLIVAN 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.