BVA9503896 DOCKET NO. 93- 03 741 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for lumbarization of the first sacral segment in the spine. 2. Entitlement to an increased evaluation for postoperative residuals of a herniated nucleus pulposus, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from January 1981 to May 1991. This appeal comes before the Board of Veterans' Appeals (Board) from an April 1992 rating decision by the Department of Veterans Affairs (VA) Winston-Salem Regional Office (RO), which granted service connection for postoperative residuals of a herniated nucleus pulposus, rated noncompensable, and denied entitlement to service connection for lumbarization of the first sacral segment in the spine. After developing additional evidence in this case, the Board, in accordance with Thurber v. Brown, 5 Vet.App. 119 (1993), informed the appellant's representative in a December 1994 letter of the additional evidence developed (a citation from a medical text), and provided an opportunity to respond. The representative responded later the same month in an Informal Hearing Presentation in which he contended that the records should be returned to the regional office for a Supplemental Statement of the Case. As there is neither a statutory nor a regulatory requirement that a Supplemental Statement of the Case be issued following development of additional evidence by the Board of Veterans' Appeals, and as the General Counsel of the Department of Veterans Affairs has issued an opinion that notice to the veteran's representative is tantamount to notice to the veteran [O.G.C. Advisory 42-93, November 2, 1993] it is our view that the case is now in proper posture for a decision on the merits. CONTENTIONS OF APPELLANT ON APPEAL The appellant argues that the lumbarization of the first sacral segment in his spine began during service, thereby warranting service connection. He also claims that his service-connected postoperative residuals of a herniated nucleus pulposus are more severely disabling than currently evaluated. 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 appellant'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 the appellant's claims of entitlement to service connection for lumbarization of the first sacral segment in his spine and entitlement to an increased evaluation for his postoperative residuals of a herniated nucleus pulposus. FINDINGS OF FACT 1. Lumbarization of the first sacral segment in the spine is a congenital or developmental disability. 2. Postoperative residuals of a herniated nucleus pulposus, which involve pain, degenerative changes, a well-healed scar overlying the lumbar spine, normal range of motion of the lumbar spine, full straight leg raising, and no abnormalities in reflexes, are productive of not more than mild disability. CONCLUSIONS OF LAW 1. Lumbarization of the first sacral segment in the spine was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ .1131, 5107 (West 1991). 2. The schedular criteria for an evaluation in excess of 10 percent for postoperative residuals of a herniated nucleus pulposus are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of 38 U.S.C.A. § 5107(a) (West 1991) have been met, in that the appellant's claims are well-grounded and adequately developed. I. Lumbarization of the First Sacral Segment Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by peacetime service. 38 U.S.C.A. § 1131 (West 1991). Congenital or developmental defects as such are not diseases within the meaning of applicable legislation providing compensation benefits. 38 C.F.R. § 3.303(c) (1994). Lumbarization of the first sacral segment in the spine is not shown in the service medical records, but, rather, is first shown in a July 1991 VA X-ray report that noted minimal lumbarization of the first sacral "vertebra." Report of VA Radiographic Report, dated July 2, 1991. However, the Board notes that lumbarization is a condition in which the first segment of the sacrum is not fused with the second segment so that there is one additional articulated vertebra and the sacrum consists of only four segments. Dorland's Illustrated Medical Dictionary 759 (26th ed. 1981). This does not indicate that lumbarization of the first sacral segment in the spine is a disease that results from an injury. Rather, it is a defect that one is either born with or that develops without injury. See also DAVID J. MAGEE, Lumbar Spine, in Orthopedic Physical Assessment 247, 247, 284, 289 (1992). As lumbarization is a congenital or developmental disorder, service connection is prohibited. 38 C.F.R. § 3.303(c) (1994) II. Postoperative Residuals of a Herniated Nucleus Pulposus The appellant contends that he experiences moderate to severe, constant, low back pain, with radiation to the left knee area and to the right groin area, which prevents him from lifting more than 30 pounds, requires him to take ibuprofen or Motrin prior to going to work, and necessitates the use of a safety belt at work. He claims that he has been unable to obtain employment in police work or as a truck driver due to his back problems, and that jogging causes pain in the back. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. When intervertebral disc syndrome is pronounced, as manifested by persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc for which there is little intermittent relief, a 60 percent evaluation is assigned. If intervertebral disc syndrome is severe, with symptomatology indicating recurring attacks with intermittent relief, a 40 percent evaluation is assigned. When intervertebral disc syndrome is shown to be moderate with recurring attacks, a 20 percent evaluation is granted. A 10 percent evaluation is assigned for intervertebral disc syndrome that is manifested by mild symptomatology. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1994). When limitation of motion in the lumbar spine is shown to be severe, a 40 percent evaluation is assigned. If limitation of motion in the lumbar spine is moderate, a 20 percent evaluation is assigned. For slight limitation of motion in the lumbar spine, a 10 percent evaluation is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1994). Review of the history of the appellant's service connected low back disability reveals that he was treated complaints of low back pain on several occasions during service, with the initial manifestation in May 1983. A herniated nucleus pulposus was diagnosed in September 1986. An unsigned medical statement from a Dr. Winter, dated in September 1986 indicates that a computer tomography of the appellant's lumber vertebral column revealed distinct medial to mediolateral disc prolapse of the intervertebral disc at the level of the fourth and fifth vertebrae. In December 1986, the appellant underwent a posterior laminectomy and diskectomy for a herniated intervertebral disk at the level of the fifth lumbar vertebra and first sacral segment on the left. General Services Administration Standard Form (GSASF) 275, Medical Record Report, dated December 9, 1986. In July 1991, shortly after his separation from service, the appellant underwent a VA medical examination. At that time, he complained of constant ache in his left buttock and some pain in both legs after prolonged standing of two to three hours. He stated that he had no limitation of motion in his back and rarely took Motrin. It was reported that he had experienced back problems since before service. Physical examination revealed a well-healed three inch scar in the lumbosacral area, no paravertebral muscle spasm, no tenderness, and normocurvature. Range of motion studies of the lumbar spine showed flexion to 85 degrees, extension to 40 degrees, lateral bending to 40 degrees, and rotation to 40 degrees. Straight leg was to 90 degrees bilaterally and negative. Sensation in the legs was normal. The diagnosis was postoperative residuals of a herniated nucleus pulposus with excellent results, and arthralgia in the lumbosacral area. Report of VA medical examination, dated July 2, 1991. An X-ray examination of the lumbosacral spine at the July 1991 VA medical examination revealed minimal narrowing of the disc spaces at the levels of the fourth and fifth lumbar vertebrae and of the fifth lumbar vertebra and first sacral segment. VA radiographic report of the lumbosacral spine, dated July 2, 1991. VA medical records dated in 1991 and 1992 show occasional evaluations of the appellant's back problems. He complained of back pain with radiation to the legs in November 1991. GSASF 509, dated November 8, 1991. An X-ray of the lumbosacral spine in November 1991 revealed minimal disc degenerative changes without evidence of significant spondylosis. VA radiograph report, dated November 12, 1991. Findings from a full bone scan in January 1992 were considered suggestive of mild degenerative changes at the fifth lumbar vertebra. GSASF 513, dated January 8, 1992. Evaluation of the back in January 1992 revealed straight leg raising to 90 degrees, good range of motion, no muscle spasm, a well-healed midline scar, and active patellar reflexes and an absent left ankle reflex in the lower extremities. The appellant was able to walk on his heels and toes. The impression was post lumbar laminectomy. Department of Veterans Affairs Form (VAF) 10-9034a, dated January 27, 1992. At the most recent VA medical examination, conducted in April 1992, the appellant complained of frequent backaches, pain on turning his upper body, and pain in the groin area and radiating down the legs when he was lying down. Physical examination revealed a seven centimeter, well-healed, nontender scar overlying the lumbar spine, with no current radicular component to the pain. Range of motion testing of the lower back showed flexion to 90 degrees, extension to 35 degrees, lateral flexion to 35 degrees bilaterally, and rotation to 35 degrees bilaterally. The diagnosis was status post lumbar disc surgery with continued pain. VA general medical examination, dated April 14, 1992. X-ray examination of the lumbosacral spine in April 1992 showed slight bowing of lumbar spine to the right, slight straightening of the normal lordotic curve, intact and unremarkable visualized bony structures, slight narrowing of the L5-S1 intervertebral disc space and minimal narrowing at L4-L5. VA radiographic report, dated April 14, 1992. In September 1992, the appellant had no restriction on straight leg raising, with normal touch bilaterally and normal reflexes bilaterally. The impression was chronic low backache. GSASF 509, dated September 24, 1992. After careful and longitudinal evaluation of the evidence pertaining to the appellant's postoperative residuals of a herniated nucleus pulposus, the Board has determined that the evidence fails to demonstrate that his lumbosacral spine disability should be assigned an increased rating. The most recent medical records, including the April 1992 VA medical examination, show that while he has pain associated with his back, he has good range of motion in the lumbar spine, no restrictions on straight leg raising, and no muscle spasm. Absent limitation of motion or muscle spasm in the lumbar spine, or loss of lateral spine motion, and increased rating is not warranted. III. Additional Discussion The Board has considered the testimony provided by the appellant at his September 1992 regional office personal hearing, but we do not find that this testimony, when considered with the other evidence of record, is supported by the other evidence so as to permit an allowance of either of the claims considered in this decision. Consideration has been given to the potential application of the provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, the evidence does not suggest that the appellant's postoperative residuals of a herniated nucleus pulposus present such an exceptional or usual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of an extraschedular evaluation for any of these disabilities under 38 C.F.R. § 3.321(b)(1) (1994). For example, they have not required frequent periods of hospitalization, nor do they present marked interference with employment. ORDER Service connection for lumbarization of the first sacral segment in the spine is denied . An increased evaluation for postoperative residuals of a herniated nucleus pulposus is denied. JACK W. BLASINGAME Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.