Citation Nr: 0007259 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 97-13 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a rating in excess of 20 percent for low back disorder with degenerative changes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Edward Walls, Associate Counsel INTRODUCTION The veteran served on active duty from June 1969 to May 1971. His appeal comes before the Board of Veterans' Appeals (Board) from a March 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. REMAND The veteran had an accident involving a diving board while he was still in school and before he entered service. He also suffered an injury during active service when a 55-gallon drum fell on top of him. Service medical records show that he was involved in a motor vehicle accident during active service, and that he had many back pain complaints while he was on duty. The veteran's lumbar back disorder was service connected under an aggravation theory in February 1973 at a noncompensable rating. Currently, there is some medical evidence that the veteran has intervertebral disc syndrome. However, it is unclear what relationship this has with his service-connected disability. Moreover, there is a discrepancy in the record as to the veteran's current level of disability. During a VA examination in February 1998, the veteran had present ankle jerks bilaterally at 1+. The examiner stated that although the veteran ambulated with a cane, there did not appear to be a need for it. The veteran had no paravertebral muscle spasm at that time. He did have, however, diffuse paravertebral muscle tenderness. Palpation of numerous other dorsal sites disclosed no areas of spasm, tenderness, or nodularity. In the lumbar region of his back, the veteran could not extend his spine at all because of complaints of pain. The examiner nevertheless stated that the veteran was able to flex 30 degrees and then he stopped because of discomfort. Tilting and twisting to either side were limited by discomfort to between 15 and 20 degrees. The examiner stated that the veteran did not have a spinal cord disease. According to treatment records between May 1998 and January 1999 from Joseph Hanaway, M.D., the veteran had very limited ranges of motion in his back, and motion was painful. A June 1998 treatment note shows that the veteran's forward bending was 30 degrees and backward bending was 20 degrees. Dr. Hanaway stated that the veteran wore lumbar support and he ambulated with the use of a cane. The private treatment records further reflect that the veteran had absent ankle jerk. The veteran had "chronic low back pain and right leg undoubtedly from lumbar disc disease," but Dr. Hanaway wanted to see the scan. Dr. Hanaway later referred to clinical evidence that is not associated with the claims file that apparently showed bulging discs at L2-L3, L3-L4, and L4- L5 with foraminal narrowing. The veteran was noted to have diabetes. According to a January 1999 treatment record from Dr. Hanaway, the veteran had a flattened low back with spasm over the lower lumbar region and restricted range of motion forward and backward to 10 degrees. There was marked tenderness L4-L5 to the sacroiliac region, and straight leg raising produced low back pain at 75 degrees. Again, ankle jerk was absent. The most recent medical evidence is a VA examination report of March 1999. The veteran reported that he had bilateral low back pain with pain in the posterior aspect of the right leg extending into the right foot. On physical examination, the veteran had no lumbar scoliosis and there was a normal lumbar lordosis. There was no muscle spasm in the lumbar or thoracic spine. The Board notes that this is somewhat of a discrepancy when compared to other medical evidence. The veteran's range of motion as measured by a goniometer was 40 degrees of flexion, 20 degrees of back extension, 25 degrees of right and left lateral bending with complaints of pain at the extremes of motion. The VA examiner indicated that the right leg pain (radiculopathy) was the result of diabetic neuropathy, rather than nerve root compression in that no nerve root compression was found on any of the imaging studies and there were no abnormal objective physical findings to support a finding of nerve root compression. An X-ray taken in Mach 1999 showed mild degenerative changes. In light of the conflicting medical evidence as to the veteran's level of disability, the Board is REMANDING this case to clarify the record. Moreover, it is unclear whether the veteran has intervertebral disc disease, and if there is a relationship between that disease and the veteran's service-connected disability. Thus, the RO is requested to provide the following development: 1. The RO should contact the veteran and Dr. Hanaway and request the CT scan and MRI on which Dr. Hanaway based his conclusions, as documented by the treatment records between May 1998 and January 1999. The Board is aware that the RO has already done so. 2. Then, the RO should schedule the veteran for a VA examination to determine whether he has intervertebral disc syndrome and whether it is related to the service-connected low back pain with degenerative changes. All necessary tests and studies should be performed, and the Board requests that a CT scan and an MRI be performed in connection with this request. The veteran's claims file should be made available to the examiner prior to the examination, and the examiner is requested to review the entire claims file in conjunction with the examination. Based on a review of the claims file and the clinical findings of the examination, the examiner is requested to determine if it is at least as likely as not that the veteran's right lower extremity radiculopathy is etiologically related to his service- connected disability. As stated above, there is evidence associated with the claims file that it is due to diabetic neuropathy. Moreover, if it is determined that the veteran has intervertebral disc syndrome, the examiner should also indicate whether that disorder has any relationship to his service-connected disability. If it is at least as likely as not that there is a relationship, the examiner must report whether the intervertebral disc syndrome symptomatology is moderate, severe, or pronounced, and whether there is any relief between recurrent attacks. The examiner should definitively indicate if the veteran has absent ankle jerk or other neurological findings appropriate to the site of a diseased disc. The examiner is requested to measure the veteran's limitation of motion of the lumbar spine, and indicate whether the veteran has paravertebral muscle spasm, listing of his spine to the opposite side, Goldthwaite's sign, or osteo- arthritic changes or narrowing of his joint spaces. 3. After completion of the above development, the RO should again adjudicate the veteran's claim for entitlement to a rating in excess of 20 percent for low back disorder with degenerative changes. If the determination remains adverse to the veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The purpose of this REMAND is to obtain additional development and adjudication, and the Board intimates no opinion, either factual or legal, as to the ultimate outcome of this case. The veteran has the right to submit additional evidence and argument on this matter. See generally Kutscherousky v. West, 12 Vet.App. 369 (1999). However, no action is required of the veteran until he is so notified by the RO. WARREN W. RICE, JR. Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).