BVA9500089 DOCKET NO. 92-14 282 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a chronic cervical spine disability. 2. Entitlement to service connection for a chronic disability of the tonsils. 3. Entitlement to an increased rating for a low back disability, rated as 10 percent disabling, for the period from August 7, 1990, through August 4, 1991. 4. Entitlement to an increased rating for a low back disability, evaluated as 40 percent disabling as of August 5, 1991. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Siegel, Counsel INTRODUCTION The veteran served on active duty from August 1986 to August 1990. This appeal initially arose from a rating decision of January 1991 from the Milwaukee, Wisconsin, Regional Office (RO), in which service connection for a low back disability was granted and assigned a 10 percent rating, and in which service connection for chronic disabilities of the cervical spine and the tonsils was denied. In a hearing officer's decision dated in March 1992, the rating assigned for the veteran's low back disability was increased to 40 percent, a decision that was implemented by means of a rating decision dated in April 1992. In a remand decision dated in March 1994, the Board of Veterans' Appeals (Board) requested additional development of the record with regard to an issue that is no longer on appeal. Following the completion of that requested development, the case was returned to the Board for appellate consideration of the issues set forth on the first page of this decision. The matter of entitlement to an increased rating for a low back disability is deemed to constitute two separate and distinct issues, as set forth on the first page of this decision and as explained below. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred when it denied service connection for chronic disabilities of the cervical spine and the tonsils. He specifically alleges that he has had cervical spine problems since a box fell on his neck when he was in service, and that he has had recurrent inflammation of the tonsils since incurring an inservice upper respiratory viral infection. The veteran also in essence contends that the RO erred when it denied an increased rating for his low back disability. He asserts that he has "constant" lower back pain that radiates down his legs, and that he has restricted lower back movement. 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 his claim for service connection for a chronic cervical spine disability is not well grounded. It is also the decision of the Board, based on its review of the relevant evidence and for the following reasons and bases, that the preponderance of the evidence is against his claims for service connection for a chronic disability of the tonsils and for increased ratings for a low back disability, both for the period from August 7, 1990, through August 4, 1991, and for the period beginning on August 5, 1991. FINDINGS OF FACT 1. An inservice cervical spine injury was acute and transitory, and was resolved without residuals; a cervical spine disability is not currently shown. 2. With regard to claims for service connection for a chronic disability of the tonsils, and for increased ratings for a low back disability, all evidence necessary for an equitable disposition of such claims has been developed. 3. An inservice disability of the tonsils was acute and transitory, and was resolved without residuals; hypertrophy of the tonsils that is currently manifested is not shown to be a residual of inservice tonsillitis, or otherwise related to the veteran's active service. 4. During the period from August 7, 1990, through August 4, 1991, a low back disability was manifested primarily by "minimal" left side muscle spasm. Lumbosacral ankylosis, at least moderate lumbosacral limitation of motion, at least moderate intervertebral disc syndrome, or lumbosacral strain manifested by muscle spasm on the right or by loss of lateral spine motion, is not shown. 5. For the period beginning on August 5, 1991, a low back disability has been manifested primarily by limitation of motion and by radiculopathy; lumbar spine ankylosis or persistent neurologic symptoms are not shown. 6. With regard to the veteran's low back disability, neither an exceptional nor unusual disability picture has been demonstrated so as to render impractical application of the regular schedular standards. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for a chronic cervical spine disability is dismissed. 38 U.S.C.A. § 5107(a) (West 1991). 2. A chronic disability of the tonsils was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1993). 3. The criteria for an increased rating for a low back disability, for the period from August 7, 1990, through August 4, 1991, are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, Diagnostic Codes 5286, 5289, 5292, 5293, 5295 (1993). 4. The criteria for an increased rating for a low back disability, for the period beginning on August 5, 1991, are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, Diagnostic Codes 5286, 5289, 5292, 5293, 5295 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for a Chronic Cervical Spine Disability The threshold question that must be resolved with regard to each claim is whether the veteran has presented evidence that each claim is well grounded; that is, that each claim is plausible. If he has not, his appeal fails as to that claim, and the Board is under no duty to assist him in any further development of that claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). In the instant case, the evidence does not demonstrate that a cervical spine disability is currently manifested. Since service connection cannot be granted for a disability that is not shown to exist, the Board must accordingly find that a claim for service connection for such a disability is not well grounded and must be dismissed, since it does not present a question of fact or law over which the Board has jurisdiction. The Board acknowledges that the veteran's service medical records indicate that he was seen in March 1987 for complaints of pain "up and down" his cervical spine after a box fell on his shoulder. A service treatment record shows that, on examination, he was found to have full neck range of motion, with no sign of deformity; the assessment was muscle strain. A service treatment record dated in March 1990 shows complaints of upper and lower back pain of "5 months" duration, and notes "upper back pain gone." The report of the separation medical examination, dated in July 1990, shows that the spine was clinically evaluated as normal, and does not indicate the presence of a cervical spine disability, or complaints thereof. A review of the veteran's post service medical records likewise does not indicate the presence of any cervical spine disability. The report of a December 1990 Department of Veterans Affairs (VA) examination shows that there was "minimal point tenderness over the seventh cervical vertebra," but that cervical spine range of motion and curvature was normal, with normal cervical lordosis; the examination report indicates diagnoses to include "[a]rthralgia of cervical spine with normal function on clinical examination." The report of a radiological study of the cervical spine, conducted in December 1990 in conjunction with the clinical examination, notes an impression of "normal study." Similarly, the report of a subsequent VA examination, dated in March 1992, shows that he had normal cervical spine lordosis, and that there was no cervical spasm, or spasm of either trapezius muscle. This report also shows that cervical spine range of motion was either equal to or greater than the ranges considered normal for all measured movements. The report indicates diagnoses to include "[h]istory of cervical spine arthralgia with normal examination." The report of a radiological study conducted at the time of the clinical evaluation indicates an impression of "minimal scoliosis in the cervical spine which may be positional," and that the "[c]ervical spine is otherwise normal." Under the provisions of 38 U.S.C.A. § 1110 (West 1991), service connection can be granted, in part, for "disability resulting from personal injury suffered or disease contracted in line of duty...." 38 U.S.C.A. § 1110 (West 1991); see also 38 U.S.C.A. § 1131 (West 1991). It necessarily follows, however, that a disability or disease must be manifested for service connection to be granted. In the absence of evidence indicating the presence of a disability or disease, a claim for service connection therefor is not plausible and accordingly is not well grounded. The United States Court of Veterans Appeals (Court), in a case in which a veteran sought service connection for hypertension, found that, "[b]ecause of the absence of any evidence of current hypertension...appellant's claim is not plausible and, therefore, not well grounded." Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). In the case now before the Board, the veteran is seeking service connection for a disorder identified as a chronic cervical spine disability. However, as indicated above, the medical evidence demonstrates that an inservice cervical spine problem, deemed to have been a muscle strain, was treated in March 1987, and that upper back pain may have been manifested for a period of time thereafter. On separation from service, no cervical spine problems were discerned, nor were any such problems or disability identified on VA clinical examination in December 1990 and March 1992. Based on this evidence, the Board must conclude that the veteran's inservice cervical problem was acute and transitory in nature, and was resolved without residuals. See 38 C.F.R. § 3.303(b) (1993). In reaching this conclusion, the Board also notes that the absence of clinical evidence demonstrating that a cervical spine disability is currently manifested leads the Board to find that service connection for a chronic cervical spine disability cannot be granted, inasmuch as service connection cannot be granted for a disability that is not currently manifested. See Rabideau, at 144. See also Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The veteran has not submitted evidence sufficient to justify a belief by a fair and impartial person that service connection for a chronic cervical spine disability could be granted, as is required under the provisions of 38 U.S.C.A. § 5107(a) (West 1991), and the Board accordingly finds that his claim for service connection for such a disability is not well grounded. The Court has held that claims that are not well grounded must be dismissed by the Board. The Court has stated that [a] veteran claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991); see Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992). If a claim is not well grounded, the [Board] does not have jurisdiction to adjudicate that claim. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Boeck v. Brown, 6 Vet.App. 14, 17 (1993). In other words, the Court has held that, if a claim is not well grounded, the Board does not have jurisdiction over the question of whether the benefit sought on appeal is warranted. Boeck, at 17. Since a claim that is not well grounded does not present a question of fact or law over which the Board has jurisdiction, a claim that is not well grounded must be dismissed. 38 U.S.C.A. § 7105(d)(5) (West 1991). In the case now before the Board, as has been previously noted, the veteran has not demonstrated either that an inservice cervical spine injury was chronic in nature, or that a cervical spine disability is currently manifested. Since it is not plausible that service connection can be granted for a disability that is not shown to exist, a claim therefor is not well grounded. Accordingly, pursuant to judicial interpretation of the applicable statutory and regulatory provisions, the veteran's claim for service connection for a chronic cervical spine disability is dismissed. II. Service Connection for a Chronic Disability of the Tonsils With regard to the veteran's claim for service connection for a disability of the tonsils, the Board finds that this claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim that is plausible. He has not asserted that any records of probative value that may be obtained and which have not already been associated with his claims folder are available. It is accordingly found that all relevant facts have been properly developed, and that the duty to assist him as to this claim, as mandated by the provisions of 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. As previously noted, the veteran contends that he has a chronic disability of the tonsils for which service connection is warranted. After a review of the record, however, the Board finds that his contentions are not supported by the evidence, and that his claim fails The veteran's service medical records do not demonstrate that a chronic disability of the tonsils was manifested during his period of active service. The report of a medical examination conducted in March 1985, pursuant to his enlistment into service, shows that his mouth and throat were clinically evaluated as normal. While a service medical record dated in February 1988 indicates an assessment of viral upper respiratory infection "[with] tonsillitis," it must be noted that service medical records compiled subsequent to this date do not show that he was thereafter accorded treatment for tonsillitis or for any other disability of the tonsils, or that he made complaints indicating the presence of such a disability. The report of his separation medical examination, dated in July 1990, shows that his mouth and throat were clinically evaluated as normal, and does not indicate the presence of any tonsil problems, or history thereof. On a report of medical history, also dated in July 1990 and compiled in conjunction with his separation from service, he cited the presence of a "sore throat," but indicated "no" as to whether he had or had ever had "[e]ar, nose, or throat trouble." A service treatment record dated later in July 1990 likewise notes complaints of a "sore throat," and indicates an assessment of upper respiratory infection. In brief, the veteran's service medical records show that "tonsillitis" was discerned on only one occasion, in conjunction with treatment for a viral upper respiratory infection. While medical records compiled at the time of his separation from service note the presence of a "sore throat," it must be pointed out that these records do not demonstrate that this "sore throat" was a manifestation of a disability of the tonsils, or that the tonsils were in any manner involved. The Board must accordingly find that inservice tonsillitis was acute and transitory in nature, and was resolved without residuals, and that a chronic disability of the tonsils was not manifested during his active service. See 38 C.F.R. § 3.303(b) (1993). The Board acknowledges that the report of a VA medical examination dated in December 1990 indicates that the veteran's tonsils were hypertrophic, although there was "no evidence of active current infection." The fact that, approximately four months after his separation from service, his tonsils were found on clinical examination to be enlarged does not provide a basis for finding that service connection for a chronic tonsil disability is appropriate. To the contrary, it must be pointed out that the evidence does not demonstrate that the hypertrophic tonsils shown in December 1990 were residuals of, or symptomatic of, tonsillitis noted more than two-and-a-half years previously, nor is it shown that the presence of hypertrophic tonsils at that time was in any manner related to the active service that had concluded approximately four months ago; see 38 C.F.R. § 3.303(d) (1993). In view of the foregoing, therefore, the Board must conclude that the preponderance of the evidence is against the veteran's claim for service connection for a chronic disability of the tonsils. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1993). III. An Increased Rating for a Low Back Disability With regard to the veteran's claims for an increased rating for a low back disability, the Board finds that these claims are also "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, plausible claims have been presented. He has not asserted that any records of probative value that may be obtained and which have not already been associated with his claims folder are available. It is accordingly found that all relevant facts have been properly developed, and that the duty to assist him as to these claims, as mandated by the provisions of 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. Service connection for a disability classified as "chronic low back pain" was granted by the Milwaukee, Wisconsin, RO in a rating decision of January 1991, following review of the veteran's service medical records and the report of a December 1990 VA medical examination. A 10 percent rating was assigned therefor, effective as of August 7, 1990 (the day following his separation from active service). The veteran thereafter indicated disagreement with the degree of impairment assigned by the RO for this disability. By means of a hearing officer's decision dated in March 1992, a 40 percent rating was granted, based on testimony presented by the veteran at a February 1992 personal hearing, on VA outpatient treatment records dated in 1991 and 1992, and on the report of a March 1992 VA medical examination. The 40 percent rating was implemented by the RO in a rating decision of April 1992, effective as of August 5, 1991; at that time, the disability was classified for rating purposes as "chronic low back pain with herniated L5-S1 with bulging L4-5 disc." As noted in the INTRODUCTION section, above, the matter of entitlement to an increased rating for a low back disability is deemed to constitute two separate and distinct issues, as shown on the first page of this decision. Each issue is discussed below. A. A Rating Greater Than 10 Percent, for the Period from August 7, 1990, Through August 4, 1991 The veteran in essence contends that a rating greater than 10 percent for his low back disability, for the period from August 7, 1990, through August 4, 1991, is warranted. After a review of the record, however, the Board must conclude that his contentions are not supported by the evidence, and that his claim fails. The severity of a low back disability is ascertained, for VA rating purposes, by application of the criteria set forth in Diagnostic Codes 5286, 5289, 5292, 5293 and 5295 of VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1993) (Schedule). Under these criteria, the 10 percent rating that was in effect from August 7, 1990, through August 4, 1991, contemplated a level of severity manifested by slight lumbar spine limitation of motion (Diagnostic Code 5292), by intervertebral disc syndrome that was mild in nature (Diagnostic Code 5293), or by lumbosacral strain manifested by characteristic pain on motion (Diagnostic Code 5295). A rating greater than 10 percent would have been warranted if there had been complete bony fixation of the spine (Diagnostic Code 5286) or lumbar ankylosis (Diagnostic Code 5289); at least moderate limitation of lumbar motion (Diagnostic Code 5292); intervertebral disc syndrome at least moderate in severity, manifested by recurrent attacks (Diagnostic Code 5293); or by lumbosacral strain manifested by muscle spasm on extreme forward bending and by loss of lateral spine motion in the standing position (Diagnostic Code 5295). These criteria were not met. The post service evidence dated prior to August 5, 1991, that pertains to the veteran's low back disability consists primarily of the report of a VA medical examination conducted in December 1990. This report shows that, at that time, there was "minimal" spasm "at the level of L3, L4, or L5 on the left." However, there was no spasm on the right, nor was crepitus discerned. The veteran exhibited lumbosacral forward flexion to 90 degrees, compared to normal or full lumbosacral forward flexion to 95 degrees; lumbosacral backward extension to 35 degrees, which is considered to be full or normal lumbosacral backward extension; and lumbosacral lateroflexion to both the left and right to 40 degrees, which is deemed to be full or normal lumbosacral lateroflexion. The report of a radiologic study conducted at that time indicates, in part, that the intervertebral disc spaces were "normal in height," and that the impression was of a "normal study." In brief, neither this report, nor any other evidence, shows that the veteran's low back disability, for the period from August 7, 1990, through August 4, 1991, was manifested by any of the symptoms for which a rating greater than the 10 percent that was in effect during that period would have been warranted. Rather, the evidence demonstrates that the lumbosacral spine was not ankylosed (Diagnostic Codes 5286 and 5289), that lumbosacral spine movement was not so restricted as to constitute at least moderate limitation of motion (Diagnostic Code 5292), that any intervertebral disc syndrome that was manifested was not at least moderate in severity (Diagnostic Code 5293), and that lumbosacral strain was not manifested at least by loss of lateral spine motion or by muscle spasm on other than the left side (Diagnostic Code 5295). Accordingly, the Board must conclude that the preponderance of the evidence is against the veteran's claim for an increased rating for a low back disability, for the period from August 7, 1990, through August 4, 1991. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Diagnostic Codes 5286, 5289, 5292, 5293, 5295 (1993). In addition, the evidence does not demonstrate that his back disability was of such severity during the period in question as to present 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. 38 C.F.R. § 3.321(b)(1) (1993). B. A Rating Greater Than 40 Percent, for the Period From August 5, 1991 The veteran also, in essence, contends that his low back disability is currently of such severity, beginning on August 5, 1991, as to warrant an increased rating therefor. Again, however, the Board must find, after a review of the record, that his contentions are not supported by the evidence, and that this claim also fails. As previously discussed, the severity of a low back disability is ascertained by application of the standards set forth in Diagnostic Codes 5286, 5289, 5292, 5293 and 5295 of the Schedule. Under these criteria, the 40 percent rating that has been in effect since August 5, 1991, contemplates favorable lumbar spine ankylosis (Diagnostic Code 5289); severe limitation of lumbar motion (Diagnostic Code 5292); severe intervertebral disc syndrome, as manifested by recurring attacks with intermittent relief (Diagnostic Code 5293); or severe lumbosacral strain (Diagnostic Code 5295). A rating greater than that currently in effect would be appropriate for either complete bony fixation or for unfavorable lumbar spine ankylosis (Diagnostic Codes 5286 and 5289, respectively), or for intervertebral disc syndrome that was pronounced in nature, with persistent symptoms denoting neurologic problems (Diagnostic Code 5293). These criteria are not satisfied. The medical evidence dated on August 5, 1991, and thereafter indicates that, while lumbar spine motion may be, as noted on the report of the March 1992 VA examination, "markedly limited," lumbar spine movement can be accomplished; it therefore follows that the lumbar spine is not ankylosed. In addition, this report notes that, while there was radiculopathy down the L5-S1 dermatones when the veteran was attempting lumbar spine motion, "there is no strict sensory neuropathy present with pain testing vibratory sensation testing (sic)." Straight leg raising was negative on the left and positive on the right. Neither this report, which is the most recent clinical evaluation of the veteran's low back disability, nor medical records dated prior to March 1992, show that his lumbar spine was ankylosed, or that his back disability was manifested by persistent neurologic symptoms. In view of the foregoing, the Board must conclude that the preponderance of the evidence is against the veteran's claim for an increased rating for a low back disability, for the period beginning on August 5, 1991. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Diagnostic Codes 5286, 5289, 5292, 5293, 5295 (1993). Moreover, the evidence does not demonstrate that this disability was of such severity on August 5, 1991, and thereafter as to present 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. 38 C.F.R. § 3.321(b)(1) (1993). In that regard, the Board notes that the 40 percent rating that has been in effect since August 5, 1991, is the maximum schedular rating that can be assigned under the standards set forth in Diagnostic Code 5292, pertaining to lumbar spine limitation of motion, and Diagnostic Code 5295, pertaining to lumbosacral strain. A rating greater than the current 40 percent rating would be appropriate only upon a determination that the provisions of 38 C.F.R. § 3.321(b)(1) (1993) are for application. As indicated above, the Board has found that the application of those provisions is not appropriate. ORDER The claim for service connection for a chronic cervical spine disability is dismissed. Service connection for a chronic disability of the tonsils is denied. An increased rating for a low back disability, for the period from August 7, 1990, through August 4, 1991, is denied. An increased rating for a low back disability, for the period beginning on August 5, 1991, is denied. LAWRENCE M. 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 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.