Citation Nr: 0003732 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 94-45 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an evaluation in excess of 10 percent for service-connected lower spine injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. A. Kultgen, Associate Counsel INTRODUCTION The veteran had active service from June 1943 to February 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 1994 rating decision from the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which denied an increased evaluation for service- connected lower spine injury with mild limitation of motion. FINDING OF FACT The veteran's current back symptomatology is unrelated to his service-connected disability and is due to nonservice- connected arthritis and scoliosis of the lumbar spine. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for service-connected lower spine injury have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background By rating decision in April 1946, the veteran was granted service connection for chronic low back strain with a noncompensable evaluation, effective February 21, 1946. By rating decision in May 1954, the RO granted an increased evaluation of 10 percent for service-connected residuals of back injury with mild limitation of motion, effective from April 6, 1954. The Board notes that X-ray examination of the lumbosacral spine during service, at the time of the lower back injury in February 1945, was negative. Lumbosacral spine X-ray examinations in June 1948, April 1954, August 1970, and November 1970 were normal. The first X-ray evidence of record of degenerative changes was in August 1988. By letter, dated in June 1988, S.C.D., M.D. stated that he had been treating the veteran since August 1987, following an on-the-job injury to the veteran's back. A diagnosis of L5 radiculopathy on the left with foot drop resulting from a herniated nucleus pulposus was reported. Dr. S.C.D. noted that the veteran had been employed as a laborer for the previous 30 years without apparent increase in the veteran's back discomfort prior to the August 1987 on-the-job injury. VA treatment records in April and July 1992 noted a diagnosis of degenerative joint disease of the lumbar spine with left sciatica. A VA examination was performed in July 1994. The veteran stated that his back had given him increasing problems since discharge from service. He reported that approximately two years previous, he had developed difficulty with walking and some numbness on the left side of his body. The veteran's pain was localized midline from approximately T12 to L4 or L5 with radiation of pain into the left lower extremity. The veteran further reported weakness of the left upper extremity. Physical examination showed moderate thoracolumbar scoliosis with tightness of all paravertebral muscles. The examiner noted tenderness to palpation and light percussion from T12 down. Range of motion testing of the thoracolumbar spine showed forward flexion of 40 degrees, backward extension of 0 degrees, left lateral flexion of 20 degrees, right lateral flexion of 25 degrees, left rotation of 20 degrees, and right rotation of 25 degrees. Sensory testing showed a moderate deficit of the entire left side of the body, including the face. The examiner stated that the veteran's history was neurologically compatible with a cerebellar or brainstem stroke. X-ray examination showed osteoporosis of the spine, localized spondylosis of C5 and C6, narrowing of the C5-6 disc space, narrowing of the L4-5 disc space, and lumbar spondylosis. The examiner reported a history of back trauma in 1944, with possible compression fracture or other bone injury in the lumbar level. Diagnoses of mild scoliosis and marked limitation of mobility of the thoracolumbar spine were reported. The examiner further noted that the veteran had degenerative arthritis and degenerative disc disease of the cervical and lumbar spine. The examiner stated that the lumbar spine disease was secondary to the first diagnoses. VA outpatient treatment records in September 1995 noted complaints of constant lower back pain. Decreased range of motion was noted with no tenderness of the spine. An assessment of chronic lower back pain was noted. Continued complaints of lower back pain were noted on treatment records dated from October 1995 to May 1996. An electromyogram was partially completed in October 1998. The test was unable to be completed due to the veteran's time constraints, but the findings were suggestive of peripheral neuropathy with superimposed left L5 radiculopathy. A VA examination was conducted in October 1998, and the examiner noted that the claims file was not available for review. The veteran reported continued low back difficulty since discharge, with one or two falls since discharge for which medical treatment was required. He stated that weakness in the left leg had developed in the previous three- to-four years. Range of motion testing of the lumbar spine showed forward flexion of 45 degrees, extension of 10 degrees, left side bending of 15 degrees, and right side bending of 20 degrees. The examiner noted that normal range of motion was 60 degrees forward flexion, 15 degrees extension, and 25 degrees side bending. Pain on internal and external rotation of the hips was noted. The examiner stated that it appeared as though the veteran had a soft-tissue injury to the lumbar spine during service, which should have been inexorably resolved within a reasonable period of time. The veteran's subsequent on-the- job injuries to the back no doubt exacerbated his current complaints. The examiner found no objective neurological abnormalities other than the increased lower back pain with straight leg raise. The examiner stated that, without benefit of the pending X-ray examination, the veteran probably suffered from significant degenerative findings in the lumbar spine. However, the examiner concluded that, with normal evaluations performed within three years of the veteran's original injury, there was no relation of the veteran's current symptoms to the injury during service. X- ray examination showed mild scoliosis of the lumbar spine, degenerative changes in lumbar vertebrae, and moderate disc degenerative changes at L4-5. In November 1998, a VA physician reviewed the veteran's claims file, including the October 1998 VA examination report. The physician stated that he agreed with the conclusions of the VA examiner in October 1998. By rating decision in December 1998, the RO denied service connection for lumbar spine scoliosis, lumbar vertebrae degenerative changes, and degenerative disc disease at L4-5. II. Analysis 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, 632 (1992). In the instant case, there is no indication that there are additional records, which have not been obtained and which would be pertinent to the present claims. Thus, no further development is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1998). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1998). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2, which require the evaluation of the complete medical history of the veteran's condition. 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (1998). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (1998). Under the Schedule, limitation of lumbar spine motion warrants a 10 percent evaluation if slight, a 20 percent evaluation if moderate, and a 40 percent evaluation if severe. 38 C.F.R. § 4.71a, Diagnostic Code 5292. Lumbosacral strain warrants a 10 percent evaluation with characteristic pain on motion, a 20 percent evaluation with muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in standing position. A 40 percent evaluation is warranted for severe symptomatology with listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295. The most recent VA examination in October 1998 found that there was no relation between the veteran's current symptoms and his inservice back injury. This finding was confirmed by a second VA physician following review of the veteran's claims file. The veteran's current symptoms are attributed to his nonservice-connected degenerative arthritis and scoliosis. Although the VA examiner in July 1994 found diagnoses of scoliosis, limitation of motion, degenerative arthritis and degenerative disc disease were secondary to the back trauma in 1944, the record does not show that the examiner reviewed the veteran's claims file. In fact, the history of "compression fracture or other bone injury" during service, reported by this VA physician, is unsupported by the medical evidence of record. X-ray examinations of the veteran's lumbar spine were normal until at least 1970, more than 20 years after the veteran's discharge from service. Further Dr. S.C.D. noted that the veteran's service injury had remained static for thirty years following service, until an on-the-job injury in 1987. The Board finds that the evidence of record preponderates against an evaluation in excess of 10 percent for the veteran's service- connected low back injury. ORDER Entitlement to an evaluation in excess of 10 percent for service-connected lower spine injury is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals