Citation Nr: 0004760 Decision Date: 02/24/00 Archive Date: 02/28/00 DOCKET NO. 96-27 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to an increased disability rating for lumbar strain and myositis, currently evaluated as 10 percent disabling. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include bipolar disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The veteran had active military service from September 1979 to June 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which, in pertinent part, denied the veteran's claim for an increased rating for his service- connected back condition. In September 1997, the Board remanded the veteran's increased rating claim for additional evidentiary development. The RO has substantially complied with the Board's Remand instructions, and that claim is ready for appellate disposition. The issues of entitlement to service connection for PTSD and whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD were not certified to the Board. For the reasons discussed in the REMAND portion of this decision, the Board finds that the veteran has filed a notice of disagreement with the denial of these claims in a July 1996 rating decision, thereby initiating, but not perfecting, an appeal. FINDINGS OF FACT 1. The veteran's claim for an increased rating for his back disorder is plausible, and the RO has obtained sufficient evidence for correct disposition of this claim. 2. The veteran's lumbar spine disorder is manifested by subjective complaints of pain and objective evidence of some restriction of motion, but with no objective and/or credible evidence showing functional loss. CONCLUSIONS OF LAW 1. The veteran's claim for an increased disability rating for his lumbar spine disorder and myositis is well grounded, and VA has satisfied its duty to assist him in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). 2. The criteria for a disability rating in excess of 10 percent for lumbar strain and myositis have not been met. 38 U.S.C.A. §§ 1155 and 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, and 4.71a, Diagnostic Code 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The first responsibility of a claimant is to present a well- grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). A claim for an increased disability rating is well grounded if the claimant alleges that a service-connected condition has worsened. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The veteran has complained of increased lumbar spine pain; therefore, his claim is well grounded. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a well-grounded claim for an increase, but the medical evidence is not adequate for rating purposes, an examination will be authorized. 38 C.F.R. § 3.326(a) (1999). Reexamination will be requested whenever VA determines that there is a need to verify either the continued existence or the current severity of a disability. 38 C.F.R. § 3.327(a) (1999). Generally, reexaminations are required if it is likely that a disability has improved, if the evidence indicates that there has been a material change in a disability, or if the current rating may be incorrect. Id. In this case, the RO provided the veteran appropriate VA examinations in 1995 and 1998. The RO substantially complied with the Board's 1997 Remand instructions. Although the VA examiner did not explicitly address the Board's request for an opinion as to the level of the veteran's functional loss attributable to his service-connected back condition, this was done implicitly, in that there was no objective credible evidence of back impairment or functional loss. The comments of the examiner in 1998 as well as the objective findings reported in the VA examination reports from 1995 and 1998 provide sufficient evidence to rate the service-connected disability fairly. The VA examination reports provide information as to range of motion and test results for functional abilities and neurological deficits. There is no objective evidence indicating that there has been a material change in the severity of the veteran's service-connected back disorder since he was initially examined. When asked by the RO in November 1997 to list any medical provider that had treated him for his back disorder since 1995, the veteran did not respond. Upon VA examination in 1998, he suggested having received treatment in San Juan and Humacao. He did not indicate, however, that this treatment was specifically for his back condition, as opposed to his numerous nonservice-connected disabilities, especially since he failed to respond to the RO's 1997 development letter. Moreover, there is no indication that any records exist that would provide any additional information other than that already shown by the evidence of record. Accordingly, in the circumstances of this case, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90 (1990). Disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. The ratings are intended, as far as practicably can be determined, to compensate the average impairment of earning capacity resulting from such disorder in civilian occupations. 38 U.S.C.A. § 1155 (West 1991). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2 (1999). For a claim for an increased rating, the primary concern is the current level of disability. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Peyton v. Derwinski, 1 Vet. App. 282 (1991). It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (1999), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (1999). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). The veteran is currently evaluated under Diagnostic Code 5295 at 10 percent, which contemplates lumbosacral strain with characteristic pain on motion. A 20 percent disability rating requires lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (1999). Diagnostic Code 5295 provides a maximum disability rating of 40 percent for severe lumbosacral strain with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Id. The veteran's lumbar spine disability can also be evaluated under the criteria of Diagnostic Code 5021 for myositis, which is rated based on limitation of motion of the affected parts as degenerative arthritis. Diagnostic Code 5003 sets forth criteria for evaluation of degenerative arthritis established by x-ray findings, which are to be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200, et seq.). Where there is some limitation of motion, less than would be assigned under Codes 5200 et seq., a 10 percent rating is for assignment. An evaluation in excess of 20 percent is not provided for under Diagnostic Code 5003, and thus reference must be made to Diagnostic Code 5292 for limitation of motion of the lumbar spine. Slight limitation of motion of the lumbar spine will be rated 10 percent disabling. A 20 percent evaluation is warranted for moderate limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292. Also a 10 percent evaluation is warranted for mild intervertebral disc syndrome. A 20 percent evaluation is warranted for moderate intervertebral disc syndrome with recurring attacks. 38 C.F.R. § 4.71a, Diagnostic Code 5293. In evaluating this claim, the Board must consider whether a higher disability evaluation is warranted on the basis of functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40 (1999). A part that becomes painful on use must be regarded as seriously disabled. Id.; see also DeLuca. As regards the joints, factors to be evaluated include more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45(f) (1999). The Board has reviewed all the evidence of record, which consists of the veteran's service medical records; reports of VA examinations conducted in 1982, 1986, 1995, and 1998; VA outpatient records for treatment and hospitalization between 1982 and 1995; private medical records from Hector Torres, M.D.; and the veteran's contentions. The pertinent evidence is discussed below. Under Diagnostic Code 5295, the 10 percent rating assigned by the RO contemplates a mild level of symptoms. The recent findings have not shown that the veteran's back disorder is no more than slightly disabling, and the lack of objective findings preponderates against assignment of a higher disability rating. The recent medical evidence shows that, despite his complaints, the veteran is essentially normal from a functional standpoint. With respect to limitation of motion of the lumbar spine, the findings on the recent VA examinations have shown that, overall, there has been little change since his separation from service. When the veteran was examined by VA in 1982 the findings with regard to the range of motion of the back were as follows: Forward flexion to 75 degrees; lateral flexion to 30 degrees right and 25 degrees left; rotation to 15 degrees; and backward extension to 5 degrees. On a 1986 VA examination, it was reported that there was no limitation of motion. In 1995 the veteran underwent another VA examination. It was reported that there were no deviations of the back. He had decreased lumbosacral lordosis and tenderness of the dorsolumbosacral paravertebral muscles. Range of motion was forward flexion to 35 degrees, lateral rotation to 5 degrees, and flexion and extension to 10 degrees. X-rays of the lumbar spine were normal. A VA examiner in 1998 noted that the veteran had 40 degrees of forward flexion, 10 degrees of backward extension, 25 degrees of right and left lateral flexion, 25 degrees of left rotation and 35 degrees of right rotation. The physician noted that there was no painful motion on all movements when he was observed dressing and undressing, and that there was no objective evidence of painful motion on any movements or objective evidence of lumbar paravertebral muscle spasm, or objective evidence of weakness of the legs, or tenderness to palpation on the lumbarparavertebral muscles. There were no postural abnormalities, deformities or muscle atrophy. The musculature of the back was described as within normal limits. The examining physician further added that the veteran appeared to be exaggerating his responses and was not performing full effort. The current severity of the veteran's back impairment has to be viewed in the context of the current medical findings and his apparent lack of cooperation during the most recent examination that was conducted in response to the Board's remand. It is observed that there have been no recent findings of muscle spasm, tenderness or weakness since 1995. The veteran's 10 percent rating contemplates characteristic pain on motion and the evidence has shown that he experiences soma pain. However, the medical evidence does not show that the criteria for a 20 percent disability rating under Diagnostic Code 5295 have been met. A 20 percent disability rating basically contemplates muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. This has not been recently demonstrated. Also, there are no findings of listing of the spine, osteo- arthritic changes, narrowing of joint space, or any of the other criteria for a 40 percent disability rating under Diagnostic Code 5295. Moreover, despite the veteran's complaints of increased back pain with certain activities, his actual functional impairment due to his lumbar spine disorder is not shown to be more than slight, as indicated by the examiner's findings and opinion provided during the 1998 examination. There were no impairments with respect to motor strength, loss of sensation, or decreased reflexes. The veteran's gait was not impaired and he was able to dress and undress without difficulty and without exhibiting objective evidence of experiencing pain while doing so. There is no evidence of asymmetrical muscle wasting, which indicates that the veteran continues to use his muscles in a normal fashion. There is no evidence of leg weakness or tenderness of the back muscles. Despite the veteran's complaints of his legs "tingling," the medical evidence shows no neurological deficits or evidence of radiculopathy. In fact, there have been few objective findings during the recent VA examinations. The veteran has stated that he needs to use a wheelchair when he has severe back pain, but there is no objective independent medical evidence showing that his service- connected back disorder actually necessitates the use of a wheelchair. There is no indication in the medical records that a medical professional has ever concluded that the veteran's back disorder is so severe that he would need to use a wheelchair. None has been medically and such a conclusion is certainly not supported by the VA examinations, which have shown few, if any, physical findings and objective indicators of disability due to his back disorder. The Board notes that the veteran does have other medical disorders that could possibly be contributing to his functional impairment, such as morbid obesity and bilateral knee instability. However, with respect to his back, no medical professional has recently reported findings such as weakness, incoordination, loss of balance, muscle atrophy, etc., which would suggest that his back disorder is of such severity as to warrant use of a wheelchair. Accordingly, the current 10 percent disability rating for the veteran's disability is appropriate. In this case, the current 10 percent disability rating adequately compensates for any functional loss the veteran has that is attributable to his service-connected lumbar spine condition. The 10 percent disability rating was granted based on pain on motion. The veteran's current limitation of lumbar spine motion and level of functional loss do not approximate the level of disability that would result from the criteria described above for an increased rating under Diagnostic Code 5292 or 5295. There is a lack of objective medical evidence supporting any contention that the veteran suffers any additional functional loss and/or limitation of motion. The VA examiner in 1998 indicated that there was no evidence of incoordination of movement, excessive fatigability, or weakness of movement of the veteran's lumbar spine. The Board notes that a report from Dr. Torres dated in 1995 discussed the veteran's various physical and mental disorders and concluded that the veteran was totally and permanently disabled from any gainful employment. This opinion does not support the veteran's claim for an increased rating for his back condition for the following reasons. First, Dr. Torres, a psychiatrist, did not examine the veteran's back and could not, therefore, reach any independent conclusion as to the severity of the back disorder. Second, the opinion was based on "[a]ll of [the veteran's] physical conditions, as well as emotional ones." It did not address any impairment in employment the veteran is allegedly experiencing due solely to the back condition. Third, the opinion is not persuasive in light of the other medical evidence of record showing little, if any, objective indications of disability due to the veteran's back disorder, as discussed above. In this case, the veteran's actual functional impairment due to his lumbar spine disorder is not shown to be to an extent which would warrant a higher rating at this time. The veteran has reported back pain, especially with motion. While the Board is required to consider the effect of the veteran's pain when making a rating determination, and has done so in this case, the rating schedule does not provide a separate rating for pain in this case. Spurgeon v. Brown, 10 Vet. App. 194 (1997). In this case, the 10 percent disability rating has been granted based on characteristic pain on motion, which adequately compensates the veteran for his pain and for any slight functional loss that he may experience during flare-ups. The objective medical evidence does not create a reasonable doubt regarding the level of his back disability. There are no findings indicative of a moderate back disorder such as impairment of motor strength, muscle atrophy, neurological deficits, etc. Therefore, a disability rating higher than 10 percent is not warranted. The Board has considered all other potentially applicable diagnostic codes. Under Diagnostic Code 5292 a 20 percent disability rating is warranted for moderate limitation of motion. However, as discussed above, and based on the findings reported by the physician who last examined the veteran in 1998, the reported range of motion findings are insufficient to support an increased rating. Under Diagnostic Code 5289 for ankylosis of the lumbar spine, a 40 percent disability rating is warranted for favorable ankylosis, and a 50 percent disability rating is warranted for unfavorable ankylosis. There is no medical evidence showing that the veteran has ankylosis of the lumbar spine. He is able to move the lumbar spine, so it is clearly not ankylosed. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (defining ankylosis as "immobility and consolidation of a joint due to disease, injury, surgical procedure") (citation omitted). Therefore, consideration of the veteran's service- connected disability under Diagnostic Code 5286 is also not warranted. Since the veteran is not service-connected for residuals of fractured vertebra, and there is no evidence showing that he has ever incurred such an injury to the lumbar spine, consideration of his service-connected disability under Diagnostic Code 5285 is not warranted. A diagnosis of intervertebral disc syndrome has not been rendered, and the veteran has no abnormal neurological signs that might support evaluation of the back disorder under Diagnostic Code 5293. Moreover, magnetic resonance imaging (MRI) in 1998 showed no disc abnormalities. Accordingly, the preponderance of the evidence is against assignment of a disability rating higher than 10 percent under all potentially applicable diagnostic codes. There is no reasonable doubt on this matter that could be resolved in the veteran's favor. ORDER Entitlement to a disability rating in excess of 10 percent for lumbar strain and myositis is denied. REMAND The Board must consider all documents submitted prior to its decision and review all issues reasonably raised from a liberal reading of these documents. Suttmann v. Brown, 5 Vet. App. 127, 132 (1993) (citations omitted). Where such review reasonably reveals that the claimant is seeking a particular benefit, the Board is required to adjudicate the issue or, if appropriate, remand the issue to the RO for development and adjudication; however, the Board may not ignore an issue so raised. Id. A July 1996 rating decision denied the veteran's claims for service connection for PTSD and bipolar disorder. Although the RO did not determine whether new and material evidence had been submitted to reopen the claim for service connection for an acquired psychiatric disorder other than PTSD, it was noted that a November 1983 rating decision had denied the claim for service connection for a psychiatric disorder, then diagnosed as generalized anxiety disorder and adjustment disorder with mixed emotional features. In September 1996, the veteran submitted a statement identified as his "disagreement" with the RO's recent denial of his claim for service connection for a "nervous condition." The veteran's September 1996 document, filed at the RO, was timely as a notice of disagreement with the July 1996 rating decision that denied these claims. The Board notes that the veteran again filed a claim for service connection for bipolar disorder in January 1998 and was advised by the RO in January 1998 that he needed to submit new and material evidence to reopen this claim. He was incorrectly told that the July 1996 rating decision was final. It is proper to remand these claims because the veteran has not been provided a statement of the case (SOC) on these issues. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92). However, these issues will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130. Accordingly, these claims are REMANDED for the following: The RO should provide the veteran and his representative with a statement of the case as to the issues of entitlement to service connection for PTSD and whether new and material evidence has been submitted to reopen his claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include bipolar disorder. The veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of either of these issues to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b) (1999). If a timely substantive appeal is not filed the claims should not be certified to the Board. If so, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran has the right to submit additional evidence and argument on the matters that the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to fulfill due process considerations. No inference should be drawn regarding the final disposition of these claims as a result of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. JOAQUIN AGUAYO-PERELES Member, Board of Veterans' Appeals