BVA9502308 DOCKET NO. 91-52 141 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to an increased (compensable) evaluation for cervical strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb, Counsel INTRODUCTION The veteran served on active duty from December 1988 to November 1990. This case was last remanded by the Board of Veterans' Appeals (Board) to the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, in September 1993 for additional development. CONTENTIONS OF APPELLANT ON APPEAL The veteran has contended, including at his personal hearing at the Board in Washington, D.C., in June 1992, that the benefits sought are warranted, because his preservice back injury was not bothering him on service entrance, but was aggravated by his duties in service, and because his cervical strain involves pain and limitation of motion that warrants a compensable evaluation. 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 supports the grants of service connection for lumbosacral strain and an evaluation of 20 percent for cervical strain. FINDINGS OF FACT 1. Satisfactory effort has been made to obtain all relevant evidence necessary to an equitable determination of the veteran's appeal. 2. The veteran injured his back shortly before active service, in September 1988; however, only a contusion was found. 3. The veteran's preservice back disability picture was clinically intensified by his military service. 4. The veteran's cervical spine symptomatology includes moderate limitation of motion. CONCLUSIONS OF LAW 1. The veteran's preexisting low back disability was aggravated by service. 38 U.S.C.A. §§ 1153, 5107(a) (West 1991); 38 C.F.R. § 3.306 (1993). 2. An evaluation of 20 percent is warranted for cervical strain. 38 U.S.C.A. §§ 1151, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.71a, Diagnostic Code 5290 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a), that is, they are not inherently implausible. Additionally, the facts relevant to the issues on appeal have been properly developed and the statutory obligation of the VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153: 38 C.F.R. § 3.306(a). The evidence on file reveals that there were no complaints or findings of a low back disability on preservice examination in June 1988. However, a September 1988 emergency medical record from Holy Spirit Hospital reveals that the veteran injured his lower back at work when he went to stand up and caught the small of his back on the corner of a table. Examination in September 1988 showed a 2 cm. contusion over the low back area, with good range of back motion, normal straight leg raising, bilaterally, and normal x-ray studies of the lumbosacral spine. Contusion of the lumbar spine was diagnosed. The first reference in service to a low back problem was in October 1989, and low back sprain was diagnosed. In November 1989, the veteran noted a one year history of low back pain after lifting a heavy table in November 1988, and he said in December 1989 that his low back pain was getting worse. The veteran noted in January 1990 that he had originally injured his low back in September 1988, when he struck his back while standing up, and that he had not reinjured his back in service. He said that he had had continued back pain without radiation into his legs. Back examination in January 1990 showed normal motion, and x-ray studies of the low back were said to be normal. A nuclear bone scan of the veteran's neck and back in February 1990 was normal. A Medical Board evaluation in March 1990 noted that the veteran had injured his back prior to service, without reinjury in service, and that physical activities required in service made the pain worse. Medical Board examination of the back revealed normal range of motion, and x-ray studies of the lumbosacral spine in March 1990 were normal. Chronic low back pain, along with chronic whiplash injury to the cervical spine, was diagnosed, and it was recommended that the veteran be put on a six month limited duty profile because his neck and back pain prevented him from performing his full duties. The Medical Board noted that he might be able to resume his full duties after being on limited duty for six months. He was put on a limited duty profile that prohibited prolonged standing, walking, running, kneeling, squatting, heavy lifting, shipboard duty, and field work. There were no subsequent back complaints in service, and no discharge examination report is on file. On VA examination in February 1991, the veteran complained of neck and back pain. He said that he injured his back while lifting heavy chains on a sand-blasting job. He noted constant mid-low back pain, with radiation into the buttock area, which was aggravated by standing for prolonged periods of time or by lifting. Physical examination showed bilateral paraspinous muscle spasm, with forward flexion to approximately 70 degrees, hyperextension to 10 degrees, lateral bending to 15 degrees, bilaterally, and rotation to 20 degrees, bilaterally. Deep tendon reflexes, straight leg raising, motor and sensory testing were all normal. Chronic lumbosacral strain was diagnosed. The veteran testified at his Board hearing in June 1992 that he had injured his back prior to service when he raised up and hit it on a table, that he had not had any subsequent back problems prior to service, and that he began to have back problems in service after lifting chain fences and paint cans that weighed up to 110 pounds, as part of his duties, for approximately six months. The above evidence reveals that the veteran's preservice low back injury produced only a contusion of the low back. He did not seek treatment of back pain until approximately 10 months after service entrance. He indicated in December 1989 and during the Medical Board evaluation in March 1990 that his low back pain had gotten worse, and chronic low back pain was diagnosed in March 1990. When examined by the VA in February 1991, which was less than three months after discharge, back examination showed bilateral paraspinous muscle spasm and limitation of low back motion, and chronic lumbosacral strain was diagnosed. Consequently, the Board finds that the veteran's preexisting back disability was aggravated by the rigorous activities of his military service and, therefore, service connection is warranted for lumbosacral strain. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When 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 (1993). According to the VA Schedule for Rating Disabilities, a 10 percent evaluation is provided for slight limitation of motion of the cervical spine, 20 percent evaluation is provided when limitation of cervical spine motion is moderate, and a 30 percent evaluation is provided for severe limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5290. The veteran complained in late November 1989 of a one month history of neck pain and headaches, as the result of a motor vehicle accident. A February 1990 bone scan did not show any abnormality. A March 1990 Medical Board report included a diagnosis of chronic whiplash injury to the cervical spine, and the veteran was given a limited duty profile for six months because he could not perform his full duties due to constant pain in his neck and low back. On VA examination in February 1991, the veteran's complaints included neck pain. He indicated that medication had not helped his pain. Physical examination revealed flexion of the neck to 45 degrees, backward extension to 20 degrees with pain, lateral bending to 45 degrees, and rotation to 90 degrees. Deep tendon reflexes and motor and sensory testing in the upper extremities were normal. Chronic cervical strain was diagnosed. Especially with regard to flexion and extension, the above motion range seems to more nearly approximate moderate restriction, warranting a 20 percent rating. Clearly, the loss of motion is not severe. ORDER Service connection for lumbosacral strain is granted. An evaluation of 20 percent for cervical strain is granted, subject to the controlling regulations applicable to the payment of monetary benefits. J. J. SCHULE 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.