Citation Nr: 0002367 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 93-08 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an evaluation in excess of 10 percent for a sacrum/coccyx injury. REPRESENTATION Appellant represented by: AMVETS INTRODUCTION The veteran served on active duty from November 1981 to August 1987. The current appeal arose from an April 1992 rating decision of the Department of Veterans Affairs VA) Regional Office (RO) in Seattle, Washington. The RO denied entitlement to an evaluation in excess of 10 percent for a sacrum/coccyx injury. The Board of Veterans' Appeals (Board) initially remanded the case to the RO for further development in November 1994. In April 1997 the Board again remanded the case to the RO for further development to include accomplishment of an examination by an orthopedic surgeon. The veteran was examined by VA; however, the examination was not by an orthopedic surgeon, and he was rescheduled for such an examination. The veteran failed to report for the examination. He requested that action on other issues he has raised in the record be deferred pending appellate review of his claim for an increased evaluation of his low back disability, and in this regard has requested that his case be returned to the Board. In September 1998 the RO continued the denial of entitlement to an evaluation in excess of 10 percent for the appellant's sacrum/coccyx injury. The case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. The sacrum/coccyx injury is productive of disablement compatible with not more than characteristic pain on motion. 2. X-ray findings of anterior wedging of L1 reported as a residual of trauma in service is compatible with demonstrable deformity of a vertebral body. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for a sacrum/coccyx injury have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5294, 5295 (1999). 2. The criteria for a 10 percent evaluation for anterior wedging of L1 have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5285 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background A review of the service medical records discloses that the veteran fell down stairs in March 1987. Examination disclosed a tender lower sacral area with a small superficial abrasion at the right of the verge. There was mild coccygeal tenderness. The examination impression was contusion of the sacrum/coccyx. A May 1987 x-ray of the lumbosacral spine was interpreted as normal. An October 1987 VA medical examination report shows the veteran related a history of having fallen downstairs in March 1987 while carrying heavy items like desks and filing cases. Radiographic study disclosed a wedging of L1. Whether that was due to this particular fall or whether it was an old injury was not completely clear. The pain radiated down both legs and was not aggravated with sneezing or coughing. He was using a transcutaneous electrical nerve stimulating (TENS) unit which was somewhat effective. A chiropractor seemed to help him. When he had pain he could not bend, or lift heavy items. On examination back pain was located over L4-L5. There was some tenderness on percussion over L1, but that did not hurt him on range of motion. The range of motion was normal throughout except for the area over L5-S1. Forward flexion was to 90 degrees. Extension backward was to 35 degrees. The veteran started to feel uncomfortable. Lateral flexion to the left and right was to 40 degrees with "being uncomfortable" over the area. Rotation was to 35 degrees, left or right with a feeling of being uncomfortable. There was no particular pain as such. Straight leg raising bilaterally was to 90 degrees without tenderness. Neurologically he was intact without any abnormal reflexes. The pertinent examination diagnosis was low back pain of first degree. Radiographic study was reported as normal. In January 1988 the RO issued a rating decision wherein it reported the veteran had fallen in service and sustained a contusion to the sacrum and coccyx with a resulting L1 wedge fracture. Service connection was granted for a sacrum/coccyx injury with assignment of a 10 percent evaluation under Diagnostic Code 5294. Obtained in connection with the current claim for an evaluation in excess of 10 percent for a sacrum/coccyx injury was a substantial quantity of VA medical treatment reports dated during the 1990's primarily referable to unrelated disabilities. VA conducted a general medical examination of the veteran in October 1995. It was reported that he had been working since 1991. Currently he was employed answering the telephone by the Social Security Administration (SSA). No complaints referable to the low back were elicited on examination. The musculoskeletal system was reported as normal in general, and no abnormalities of the low back were ascertained on clinical inspection. No pertinent diagnosis was provided. VA conducted an orthopedic examination of the veteran in March 1995. He was reported as currently employed by the SSA doing mostly desk work. He was taking Motrin and Tylenol for low back pain. His back problems were said to have begun in 1986 or 1987 when a radiographic study disclosed an L1 compression fracture. Since then he had had pain in his lower back region. Occasionally it went down his legs; however, this was not a major problem. He did not have any tingling or numbness in his legs which he felt was due to his lumbar spine, but there was a diabetic neuropathy (service connection has been granted for diabetes mellitus evaluated as 40 percent disabling). The veteran reported he had no weakness in his lower extremities. He had used a TENS unit for pain relief. This had not helped him considerably. He had had pain nearly every day since his accident. He stated it was slowly getting worse. Forward flexion of the lumbar spine was to 90 degrees. Extension was to 90 degrees. Lateral rotation was to 40 degrees. Lateral bend was to 35 degrees. There was normal 5/5 strength in the lower extremities, including hip flexion, hip abduction, hip adduction, quadriceps, hamstrings, gastrosoleus, tibialis and extensor hallucis longus. There was normal sensation from the L1 through the S1 distribution to light touch. Straight leg test bilaterally was normal. The examination diagnosis was status post L1 compression fracture with low back pain. X-ray studies disclosed a minor congenital variation involving the body of L1 versus an old compression fracture involving the superior end plate. VA conducted a special neurological examination of the veteran in April 1995. He reported a history of a fall down stairs in a housing unit in 1987. Over the course of time the low back pain had remained localized and had not radiated. It essentially remained unchanged over the course of the last few years. Pertinent clinical findings obtained on examination show posture and gait were normal with good coordination. On gross and general examination there were no anatomic disfigurements or obvious impairment. The back was straight and nontender except to percussion over the L4 area localized to the lower back. Tendon reflexes were 1+ bilaterally symmetrical at all levels. There was normal sensory examination in the hands and feet. Vibration and position sense were normal. Muscle testing in all major muscle groups was full and symmetrical. On special tests of straight leg raising there was no impairment or apparent pain. The clinical assessment shows the veteran's neurologic complaints revolved around chronic back pain which had been stable since 1987 and not causing any neurologic deficits. He was somewhat limited by subjective pain from prolonged sitting, but there was no evidence of significant neurological impairment. The examining physician noted that general limitations and caution should be recommended for those people with a history of chronic lower back pain and a history of lower back injuries. This included limitations on lifting. VA conducted a special orthopedic examination of the veteran in June 1998. He was reported to be a SSA personnel worker. He was reported to have fallen on his tail bone while going downstairs in the housing area at Fort Lewis in 1985. There was no fracture. He had had chiropractic treatment without relief. About seven years prior he was prescribed a TENS unit which gave him relief for the moment, but stopped relieving the problem as soon as he removed it. He had been taking two Motrin per day for many years. He did not want to continue taking the drug. He wanted relief. He described a pushing type pain in the coccyx and into the sacrum. It was almost constant. He moved to relieve it. It did not wake him up at night, but it was much worse in the morning upon awakening. Walking, sitting, and bicycling were said to aggravate his low back pain. There was no numbness or weakness of the lower extremities associated with pain. There was no change in bowel or bladder function in conjunction with the pain. The veteran was last treated by VA two months earlier. He was frustrated because once again he was told to take Motrin. On examination there was a moderate amount of pain over the coccyx. The coccyx felt slightly bent forward, more than its normal position. This was difficult to determine precisely. There was tenderness of a lesser intensity over the body of the sacrum in the midline. There was no lumbar tenderness. Flexion was to 90 degrees. Extension was to 30 degrees. Side bend was to 35 degrees left and right. Rotation was to 45 degrees left and right. Deep tendon reflexes were 1+ and symmetrical. There was no atrophy, numbness, or weakness of the lower extremities. The examination assessment was chronic sacral and coccygeal pain secondary to injury. The examiner reviewed the claims file and noted that the remand directive specified examination of the veteran by an orthopedic surgeon. The veteran was scheduled for such an examination; however, he failed to report for the examination. The examiner reviewed the record and noted that a March 1987 x-ray had revealed mild anterior wedging of L1 of unknown duration. The sacrum and coccyx were noted to be normal. Additional x-ray study in March 1987 noted slight anterior wedging at L1. A May 1987 x-ray disclosed a normal lumbar spine. The examiner noted he would address the inquiries in the remand. With respect to weakness against resistance, he noted this did not apply as the area did not move. There was no excess fatigability, just pain. As the area did not move, incoordination did not apply. There was no painful motion as the area did not move. The examiner noted he could offer no opinion as to additional limits on functional ability during flare-ups, or additional degrees of limitation of motion during flare-ups as limitation of motion did not apply. Criteria In evaluating the severity of a particular disability, it is essential to consider its history. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1, 4.2 (1999). However, where 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability evaluations are determined by the application of a schedule of ratings which is based on the 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 percentage ratings contained in the rating schedule represent as far as can be practically determined the average impairment in earning capacity resulting from disease and injuries incurred in or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents 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) (1999). A 100 percent evaluation may be assigned for residuals of a vertebral fracture with cord involvement, bedridden, or requiring long leg braces. Special monthly compensation is to be considered with lesser involvements, and a rating is to be assigned for limited motion, nerve paralysis. A 60 percent evaluation may be assigned without cord involvement; abnormal mobility requiring neck brace (jury mast). In other cases a rating is to be assigned with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body. 38 C.F.R. § 4.71a; Diagnostic Code 5285. A 40 percent evaluation may be assigned for favorable ankylosis of the lumbar spine. A 50 percent evaluation may be assigned for unfavorable ankylosis of the lumbar spine. 38 C.F.R. § 4.71a; Diagnostic Code 5289. A 40 percent evaluation may be assigned for severe limitation of motion of the lumbar spine. A 20 percent evaluation may be assigned for moderate limitation of motion of the lumbar spine. A 10 percent evaluation may be assigned for slight limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a; Diagnostic Code 5292. A 60 percent evaluation may be assigned for pronounced intervertebral disc syndrome, 40 percent when severe, 20 percent when moderate, 10 percent when mild, and 0 percent when postoperative, cured. 38 C.F.R. § 4.71a; Diagnostic Code 5293. Sacro-iliac injury and weakness is rated as for lumbosacral strain. 38 C.F.R. § 4.71a; Diagnostic Code 5294. A 40 percent evaluation may be assigned for severe lumbosacral strain. A 20 percent evaluation may be assigned for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion. A 10 percent evaluation may be assigned for lumbosacral strain with characteristic pain on motion. A noncompensable evaluation may be assigned for lumbosacral strain with slight subjective symptoms only. 38 C.F.R. § 4.71a; Diagnostic Code 5295. The United States Court of Appeals for Veterans Claims (Court) has held that Diagnostic Codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, 4.59. Johnson v. Brown, 9 Vet. App. 7 (1997) and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened involvement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of the opposite undamaged joint. 38 C.F.R. § 4.59. The Court held in Hicks v. Brown, 8 Vet. App. 417 (1995), that once degenerative (traumatic) arthritis is established by x-ray evidence, there are three circumstances under which compensation may be available for service-connected degenerative changes: (1) Where limitation of motion of a joint or joints is objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion, and that limitation of motion meets the criteria in the Diagnostic Code or Codes applicable to the joint or joints involved, the corresponding rating under the code or codes will be assigned; (2) Where the objectively confirmed limitation of motion is not of a sufficient degree to warrant a compensable rating under the code or codes applicable to the joint or joints involved, a rating of 10 percent will be applied for each major joint or group of minor joints affected, "to be combined, not added"; and (3) Where there is no limitation of motion, a rating of 10 percent or 20 percent, depending upon the degree of incapacity, may still be assigned if there is x-ray evidence f the involvement of 2 or more major joints or 2 or more minor joint groups. In addition, Diagnostic Code 5003 (5010) is to be read in conjunction with 38 C.F.R. § 4.59, and it is contemplated by a separate regulation. 38 C.F.R. § 4.40, which relates to pain in the musculoskeletal system. Finally the Court noted that "Diagnostic Code 5003 and 38 C.F.R. § 4.49 deem painful motion of a major joint or groups caused by degenerative arthritis that is established by x-ray evidence to be limited motion even though a range of motion may be possible beyond the point when pain sets in. Hicks v. Brown, 8 Vet. App. 417 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis Initially, the Board finds that the veteran's claim of entitlement to an increased evaluation for his sacrum/coccyx injury is well grounded within the meaning of 38 U.S.C.A. § 5107(a); that is, a plausible claim has been presented. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In general, an allegation of increased disability is sufficient to establish a well grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The veteran's assertions concerning the severity of his service-connected low back disability (that are within the competence of a lay party to report) are sufficient to conclude that his claim for an increased evaluation for that disability is well grounded. King v. Brown, 5 Vet. App. 19 (1993). As the Board noted earlier, the veteran's case has been remanded twice to the RO for further development and adjudicative actions. The Board most recently specified that the veteran be examined by an orthopedic surgeon; however, this directive was not followed. The examiner who did conduct the examination of the veteran, in response to the Board's remand directive, scheduled the veteran for an examination by an orthopedic surgeon. However, the veteran without explanation failed to report for such an examination. The veteran's failure to report for the examination is not, in the opinion of the Board, fatal to his claim. In this regard, the Board notes that the examination which was conducted was totally responsive to the directives of the Board's remand, although it was not conducted by an orthopedic specialist. Earlier examination on file conducted in connection with the current appeal was also informative. The substantial quantity of VA treatment reports obtained in connection with the current claim for increase are also helpful. Overall, the Board is of the opinion that the record, as presently constituted, is sufficiently complete upon which to consider this appeal which is nearly ten years old. Remand of the case again to the RO would serve no useful purpose. The Board finds that adjudication of the veteran's appeal at this time would better serve the veteran's interests. The record shows that the RO has rated the veteran's sacrum/coccyx injury as 10 percent disabling under Diagnostic Code 5294, as for lumbosacral strain which is rated under Diagnostic Code 5295. The current 10 percent evaluation contemplates characteristic pain on motion. The next higher evaluation under this Code requires muscle spasm on extreme forward bending with loss of lateral spine motion, neither of which has been shown on the medical documentation to date. Accordingly, an increased evaluation under this Diagnostic Code for lumbosacral strain is not warranted. An increased evaluation for the appellant's sacrum/coccyx injury may be considered under Diagnostic Code 5292 which provides for a 20 percent evaluation for moderate limitation of motion; however, the VA examination reports on file are negative for moderate limitation of motion. Under Diagnostic Code 5293 a 20 percent evaluation may be assigned for moderate intervertebral disc syndrome with recurring attacks. Service connection has not been granted for intervertebral disc syndrome, and such disorder has not otherwise been associated with the service-connected disability of the low back, much less been shown by the evidentiary record. Additional Diagnostic Codes for consideration are 5289 and 5285. As ankylosis of the lumbar spine is not a clinical feature of the service-connected disability of the low back, an increased evaluation may not be assigned on this basis. The veteran does not have residuals of a vertebral fracture, thereby precluding a 60 or 100 percent evaluation under Diagnostic Code 5285. However, the RO previously conceded a compression fracture or wedging of the L1 as a reflection of traumatic injury sustained by the veteran in his service reported accidental fall. A compression fracture or wedging reported on radiographic study is analogous to a vertebral deformity warranting assignment of a 10 percent evaluation under diagnostic code 5285. The Diagnostic Codes pertinent to rating the veteran's low back disability contemplate limitation of motion; therefore, consideration of functional loss due to pain, etc., pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59 is warranted. The June 1998 VA examiner considered these criteria and advised that the veteran did not have excess fatigability, just pain. As the sacrococcygeal area was noted by the examiner as not moving, incoordination, painful motion, and limitation on functional ability were found to not be applicable in the veteran's case. Also, service connection has not been granted for arthritis as part and parcel of the service-connected disability of the low back, a disorder not otherwise shown on x-ray. Accordingly, there is no basis upon which to predicate an increased evaluation pursuant to the criteria of 38 C.F.R. §§ 4.40, 4.45, 4.59. The Court has held that the Board is precluded by regulation from assigning an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). The Board, however, is still obligated to seek all issues that are reasonably raised from a liberal reading of documents or testimony of record and identify all potential theories of entitlement to a benefit under the law or regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own. In the veteran's case at hand, the RO not only provided the veteran the criteria for assignment of an extraschedular evaluation, it also determined that his sacrum/coccyx disability did not interfere in his ability to work. The Court has held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the VA Under Secretary for Benefits or the Director of the VA Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board does not find the veteran's disability picture to be unusual or exceptional in nature as to warrant referral of his case to the Director or Under Secretary for review for consideration of extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1). The sacrum/coccyx injury has not required frequent, much less any inpatient care. The veteran has been gainfully employed by the SSA and no interference in his ability to perform his desk job in an office has been complained of or reported. The current schedular criteria adequately compensate the veteran for the current nature and extent of severity of his sacrum/coccyx injury. Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. ORDER Entitlement to an evaluation in excess of 10 percent for a sacrum/coccyx injury is denied. Entitlement to a 10 percent evaluation for anterior wedging at L1 is granted, subject to the governing criteria applicable to the payment of monetary benefits. RONALD R. BOSCH Member, Board of Veterans' Appeals