BVA9500013 DOCKET NO. 93-07 819 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE 1. Entitlement to an increased rating for arthritis of the right sacroiliac joint, currently evaluated as 20 percent disabling. 2. Entitlement to service connection for arthritis of the cervical spine. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Tresa Schlecht, Associate Counsel INTRODUCTION The veteran had active service from January 1943 to December 1945. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which granted an increased rating for the veteran's service-connected right sacroiliac arthritis, currently evaluated at 20 percent disabling. In his substantive appeal, the appellant alleges that he is unable to get a job due to the worsening of his service-connected disabilities. This is construed as a claim for a total disability rating based on individual unemployability, but such claim is not inextricably intertwined with the current issue over which the Board has appellate jurisdiction and may be developed by the RO at the conclusion of this appeal. See Kellar v. Brown, 6 Vet.App. 157, 160, 162 (1994). It is referred to the RO for appropriate action. The Board notes that the appellant was granted service connection for arthritis of the sacroiliac joint, and that he now has arthritis in the cervical spine and possibly the hands. The RO has listed degenerative arthritis of the cervical spine as a nonservice-connected disability, and no claim for service connection has been received. However, given the authority of 38 C.F.R. § 19.13(a) and VA Office of General Counsel Precedent Opinion 16-92, the Board will, with the approval of the Vice Chairman of the Board, assume jurisdiction of the additional issue listed on the title page. The development of the issue of service connection for arthritis of the hands is referred to the RO. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that his right sacroiliac arthritis is more disabling than a 20 percent evaluation reflects because of pain, which is so severe that it interferes with sleep, and because he has difficulty walking and performing other unspecified activities. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against an increased evaluation for the appellant's right sacroiliac arthritis. It is also the decision of the Board that the evidence warrants the grant of service connection for arthritis of the cervical spine. FINDINGS OF FACT 1. All available relevant evidence necessary for disposition of the appellant's appeal has been obtained by the RO. 2. The appellant's service-connected right sacroiliac arthritis is manifested primarily by pain when he walks more than one-half mile and moderate limitation of motion with pain. 3. The appellant has degenerative arthritis of the cervical spine which is a part of the degenerative arthritic disease process for which service connection has been established. CONCLUSION OF LAW 1. The criteria for an evaluation in excess of 20 percent for appellant's right sacroiliac arthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.66, 4.71a, Codes 5003, 5292, 5295 (1993). 2. Arthritis of the cervical spine was incurred by presumption in service. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 1991); 38 C.F.R. §§ 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Sacroiliac Arthritis The veteran's assertion that his service-connected disability is severely rather than moderately disabling constitutes a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a), which mandates a duty to assist the veteran in developing all facts relevant to the claim. Littke v. Derwinski, 1 Vet.App. 90, 93 (1990). The evidence on file includes service medical records, x-ray findings, a comprehensive VA examination performed in November 1991 which included evaluation of the range of motion of appellant's spine and sacroiliac joints, his subjective complaints, and radiologic examination of his spine and sacroiliac joints. This evidence is sufficient in scope and depth for a fair, impartial, and fully informed appellate decision and the duty to assist has been fulfilled. Where, as in this case, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). During VA hospitalization in June and July 1946, X-studies were interpreted as showing arthritic changes in the right sacroiliac joint. The veteran was awarded service-connection for right sacroiliac arthritis in 1946, and the disability was rated at 10 percent disabling. That evaluation was decreased to zero percent disabling in 1948 after X-ray studies in February 1948 showed no arthritic changes in the sacroiliac area, and returned to a 10 percent evaluation in 1981 based on recent findings of some limitation of motion in the low back area. VA outpatient treatment records from 1988 to 1991 show treatment primarily for nonservice-connected disability. There were complaints of low back pain, but there was no reference to sacroiliac arthritis. When the appellant was examined by the VA in November 1991, he stated that his neck, back, and hips hurt all the time and that when he walked for more than one-half mile he had pain in his back and hips and had to sit. He did not report difficulty sitting or difficulty with activities other than walking. The examiner found that flexion forward of the thoracolumbar spine beyond 50 degrees was painful, and extension backward to 20 degrees and lateral flexion and rotation beyond 20 degrees was painful. No muscle spasm or complaint of muscle spasm was noted by the examiner. No significant abnormalities of gait were noted, although the appellant's balance was poor. Radiologic examination showed moderate degenerative change of the right and left sacroiliac joints, consistent with degenerative arthritis. The examiner also noted that the appellant had lumbosacral degenerative disc disease and C-5 discogenic disease in addition to arthritis of the sacroiliac joints. The evidence of record discloses that, in addition to his service-connected sacroiliac arthritis, the appellant has numerous other medical conditions for which service connection is not in effect, including chronic obstructive pulmonary disease, kidney problems, anxiety reaction and arteriosclerotic heart disease. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. An extraschedular evaluation will be assigned if the case presents an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization such as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In the evaluation of service-connected disabilities, the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accu- rately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. Arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The lumbosacral and sacroiliac joints are considered as one anatomic segment for rating purposes. 38 C.F.R. § 4.66. Although the appellant is service-connected only for the right sacroiliac joint, the evidence of record does not delineate symptoms attributable to that joint separately from symptoms attributable to the left sacroiliac joint. Although the appellant has not been granted service connection for his lower back disability, the evidence of record does not clearly distinguish symptoms of lower back disability from symptoms attributable to the service-connected right sacroiliac arthritis. For purposes of evaluating appellant's right sacroiliac arthritis, all lower back and sacroiliac symptoms have been considered. Even assuming that all such symptoms are attributable to the appellant's service- connected right sacroiliac arthritis, no more than moderate symptomatology is found. From an industrial standpoint, the most important motion of the back is forward flexion, since it is utilized for bending, lifting and pushing. It is common knowledge that most individuals without back pathology or disability have the ability to bend forward (forward flexion) to at least approximately a right angle position (90 degrees). It is also common knowledge that backward movement of the upper body (backward extension), side to side movement of the upper body (lateral flexion), and twisting movement of the upper body (rotation) are possible to a significantly lesser extent (approximately one third of forward flexion). On examination in November 1991, forward flexion of the back beyond 50 degrees, approximately one half of normal, was painful, but no muscle spasm was noted. Backward extension to 20 degrees was painful, as was lateral flexion and rotation beyond 20 degrees. Overall, these findings do not approximate the criteria for an evaluation above 20 percent for appellant's sacroiliac arthritis. Under Code 5292, a 40 percent rating requires findings of severe limitation of motion. Under Code 5295, a 40 percent rating requires lumbosacral strain with listing of the whole spine to the opposite side, marked limitation of forward bending in a standing position, loss of lateral motion with arthritic changes, narrowing or irregularity of the joint spaces, or some of these findings with abnormal mobility on forced motion. The appellant here does not have a severe limitation of forward bending and retains 20 degrees of lateral motion, indicative of no more than a moderate degree of restriction of lateral flexion. 38 C.F.R. § 4.71a, Code 5295. An extraschedular evaluation is not warranted, since the evidence does not show that the service-connected right sacroiliac arthritic disability presents such an unusual or exceptional disability picture with marked interference with employment or frequent periods of hospitalization as to render the regular schedular standards impractical. 38 C.F.R. § 3.321(b)(1). Although the appellant has been hospitalized recently, treatment for appellant's service-connected sacroiliac arthritis does not appear to have been the primary reason for hospitalization. Since the preponderance of the evidence is against allowance of this appeal, the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b). Cervical Spine Arthritis The RO granted service connection for arthritis of the right sacroiliac, based on a diagnosis of such during a 1946 hospitalization and, therefore , apparently on a presumptive basis. There was no sacroiliac trauma shown at that time, and the disability has been rated under Diagnostic Code 5003, for degenerative arthritis, since 1962. Therefore, it must be assumed that the service-connected sacroiliac arthritis is degenerative arthritis, a systemic disease, not traumatic arthritis, a localized reaction to injury. With chronic disease shown in service or within the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). The recent VA examination showed degenerative spondylosis (osteoarthritis) of the cervical spine, and degenerative arthritis of the cervical spine was listed on the recent rating decision as a nonservice-connected disability. However, since degenerative arthritis is a manifestation of the systemic degenerative arthritic process for which service connection was granted in 1946, it too must be considered service connected. ORDER An increased rating for sacroiliac arthritis in excess of 20 percent is denied. Service connection for degenerative arthritis of the cervical spine is granted. HOLLY E. MOEHLMANN 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. ADDENDUM Pursuant to 38 C.F.R. Section 19.13(a)(1993), the Board proposes to assume jurisdiction over the issue of entitlement to service connection for degenerative arthritis of the cervical spine. After consideration of the facts in this case, the proposal is approved, and the Board will assume jurisdiction over the said issue. ___________________________