BVA9502896 DOCKET NO. 93-11 278 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for degenerative disc disease of L5 and S1 vertebrae. 2. Entitlement to the restoration of a 10 percent disability evaluation for lumbosacral strain and to a rating for that disorder exceeding 10 percent. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Associate Counsel INTRODUCTION The veteran served on active duty from April 1966 to December 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from July 1989, September 1990, and June 1991 decisions by the Chicago, Illinois, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran maintains that his degenerative disc disease is a result of his service-connected lumbosacral strain disability. He contends that he should therefore be granted service connection for his degenerative disc disease. The veteran further contends that his disability rating for lumbosacral strain was improperly reduced from 10 percent to noncompensable and that he is also entitled to a rating in excess of 10 percent for that disability. 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 is against the claims for service connection for degenerative disc disease and a rating in excess of 10 percent for lumbosacral strain. It is our decision that the evidence supports restoration of a 10 percent rating for lumbosacral strain. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Degenerative disc disease of the L5-S1 vertebrae was not manifested until many years after discharge from service, is not shown to be related to service or to any incident therein, and is not shown to have been caused by the veteran's service-connected lumbosacral strain. 3. The veteran's service-connected lumbosacral strain is not shown to have improved; it is characterized by pain, but is not shown to be productive of muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. CONCLUSIONS OF LAW 1. Degenerative disc disease of the lumbosacral spine was not incurred or aggravated in service and is not proximately due to or the result of the veteran's service-connected lumbosacral strain. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.310(a) (1994). 2. Restoration of a 10 percent rating for lumbosacral strain is warranted; but a rating in excess of 10 percent for that disorder is not. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.344, 4.71a, Part 4, Code 5295 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS We note that we have found that the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented claims which are plausible. We are also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). I. The veteran seeks service connection for degenerative disc disease of the L5-S1 vertebrae. He asserts that this disability was caused by his service-connected lumbosacral strain. The veteran's service medical records and his discharge physical examination of December 1969 are silent as to any findings of degenerative disc disease of the spine. He did complain of low back pain in March and April 1969. At that time he denied trauma to the low back. His sacroiliac joints were reported to be negative and X-rays were within normal limits. The final diagnosis was chronic lumbosacral strain. The veteran was granted service connection, and a noncompensable disability evaluation for lumbosacral strain in a June 1970 rating decision. In February 1989, the veteran reported that he was being treated for lower back problems. He was hospitalized at a Department of Veterans Affairs (VA) hospital in February 1989 for acute low back sprain. He reported that he had chronic low back pain for about 20 years. He stated that his low back pain had been aggravated when he bent down at a grocery store earlier that month. He complained of pain radiating from his back down through his right leg. On examination, there was decreased pinprick on the right leg. Deep tendon reflexes were decreased on the right knee jerk and ankle jerk. X-rays of the lumbosacral spine showed some minor degenerative spurring in the mid lumbar region. The veteran was given intensive physical therapy, but he still had low back pain upon discharge. VA outpatient treatment records dated from March to September 1989 show treatment for low back pain, right leg pain, and right foot numbness. The outpatient treatment records relate the veteran's back pain to degenerative joint disease of the lumbosacral spine. In a May 1989 rating action, the veteran was granted a 10 percent rating for lumbosacral strain and a temporary total (convalescent) rating based on hospitalization in February 1989. In March 1989, the veteran requested that he be granted service connection for all of his back disabilities, to include right leg pain. VA outpatient treatment records in November and December 1989 reveal that the veteran continued to have pain in the low back and pain and numbness in the right leg. The impression included probable lumbar canal stenosis with right lateral recess syndrome. March 1990 CT scan revealed central disc herniation at L4-L5 and mild disc bulge at L2-L3 and L3-L4 levels. The veteran was admitted to a VA hospital in May 1990. He reported a long history of lower back pain which had increased since February 1989. He complained of pain radiating down his right leg to his right foot. He had no previous history of radicular symptoms. A lumbar myelogram revealed degenerative changes at L5 and S1 with other findings probably representing a herniated disc. A CT scan of the lumbar spine showed a small right central disc herniation. The veteran underwent a laminectomy/discectomy at the L5-S1 level. In a September 1990 rating action, the veteran was denied service connection for degenerative disc disease. He testified at a hearing before a hearing officer at the RO in January 1991, asserting that his disc disease was related to his service- connected lumbosacral strain. At the hearing, the veteran submitted an outpatient treatment record and a statement from Donald W. Porter, D.O. It was Dr. Porter's impression that the veteran had low back pain post lumbar laminectomy. The veteran also submitted computer printouts and hand-copied notes from medical textbooks concerning back disabilities. While these documents describe low back disabilities, they do not state that lumbosacral strain causes degenerative disc disease. The veteran was afforded a VA orthopedic examinations in February 1991. The VA examiner noted that the veteran claimed that he had developed osteoarthritis of the lumbar spine as a result of the lumbosacral strain he experienced in service. X-rays of the lumbosacral spine revealed disc disease at T12-L1 and mild degenerative joint disease throughout the lumbar spine. The diagnoses included status post laminectomy and strain of the lumbosacral spine, degenerative joint disease of the lumbosacral spine, and disc disease at T12-L1. The veteran gave a complaint of lumbosacral spasm; but spasm was not noted on clinical examination. The VA examiner made no comment about the veteran's claim that his osteoarthritis was a result of the service- connected lumbosacral strain. On VA orthopedic and neurological examinations in March 1992, X- rays of the lumbosacral spine revealed degenerative spurs. Orthopedic examination resulted in a diagnosis of history of low back pain with right leg radiculopathy. Neurological examination revealed status post laminectomy for herniated nucleus pulposus with right sciatic nerve syndrome. On VA orthopedic and neurological examinations in June 1992, the resulting findings were essentially unchanged from the March 1992 examinations. Lumbosacral muscle spasm or loss of lateral spine motion in a standing position was not noted. The physician who performed the neurological examination noted that he could not confirm any relationship between the veteran's service-connected lumbosacral strain and his current disc disease. In a statement dated May 6, 1993, the veteran's service representative claimed that the June 1992 VA examinations were inadequate because they did not specifically state that the veteran's claims file was reviewed prior to the examinations. The Board notes that on the June 1993 examination the VA physician referred to his previous examination of the veteran in March 1992. In the March 1992 examina- tion that physician noted that he had reviewed the veteran's claims file. Since the same physician examined the veteran only several months apart and since it is clear that the physician had at least examined the veteran's claims file for that examination, the Board finds that the service representative's claim that the June 1992 examination was inadequate to be unfounded. While the veteran believes that his degenerative disc disease disability was caused by his service-connected lumbosacral spine, he lacks the medical expertise or knowledge to offer a probative opinion regarding the etiology of his condition. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Hence, his hearing testimony to this effect may have been sincere; but it is not competent evidence as to medical causality. Neither the veteran's private physician, Dr. Porter, nor the VA examiners have indicated that the veteran's degenerative disc disease was caused by his service- connected lumbosacral strain. Furthermore, in a June 1992 examination report, a VA physician noted that he did not find a relationship between the veteran's service- connected lumbosacral strain and his current disc disease. Nor does the medical literature that the veteran submitted indicate that there is a direct causal relationship between lumbosacral strain and the development of degenerative disc disease. Likewise, there is no medical evidence of record showing that lumbosacral disc pathology originated in service Consequently, the Board finds that service connection for degenerative disc disease of the lumbosacral spine is not warranted on either a direct or on a secondary basis. The evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. II. The veteran also seeks the restoration of a 10 percent rating for his lumbosacral strain disability. As is noted above, the veteran received treatment for lumbosacral strain in service. The veteran's claims file makes no reference to a back disability after discharge from service until a February 1989 VA hospitalization, at which time he complained of chronic back pain for the previous 20 years. The February 1989 discharge summary notes that the veteran sustained an acute sprain of the low back that month while lifting groceries. On discharge after 23 days in the VA hospital, the veteran's back pain had not resolved. In a May 1989 rating action, the veteran was given a temporary total rating for the hospitalization and convalescence of his back disability. A 10 percent disability rating for lumbosacral strain was assigned to follow termination of the total rating. The record shows that the veteran has continued to have complaints of low back pain since that time. It is noteworthy that he now has disc pathology superimposed on his service- connected lumbosacral strain. Such pathology, it may be assumed, could account for complaints of low back pain. However, strain of the lumbosacral spine has remained diagnosed, significantly on VA examination in February 1991. Without a medical opinion to the effect that the service-connected lumbosacral strain has resolved without residual disability and does not account for any current low back pain, a finding that all current low back pathology is attributable to the nonservice-connected lumbosacral disc disorder would be based on mere conjecture and is unsupported by the medical evidence of record. As there is no medical opinion that the lumbosacral strain has healed, resolved, or even improved, the reduction in the rating for lumbosacral strain was improper; and restoration of the 10 percent rating is warranted. With respect to the further claim that lumbosacral strain warrants a rating in excess of 10 percent, it is noteworthy that the next higher, 20 percent, rating for that disorder requires muscle spasm on extreme forward bending and loss of lateral spine motion, unilateral, in the standing position. Such findings are not shown by any of the more recent medical records to be present and attributable to the lumbosacral strain. When paravertebral spasms were noted on VA examinations in March and June 1992, status post herniated disc at L4-L5 with laminectomy was diagnosed, lumbosacral strain was not. In the absence of a showing that the symptoms/pathology requisite for a higher rating are present and due to lumbo- sacral strain, a rating in excess of 10 percent for that disorder is not warranted. We have considered the veteran's hearing testimony attributing most of his low back pathology to the service-connected lumbosacral strain. However, as is noted above, he is not competent to testify on medical matters. His lay opinion is far outweighed in probative value by the medical records on file which attribute the current complaints and pathology primarily to intervertebral disc disease. We have also considered all other pertinent provisions of 38 C.F.R. Parts 3 and 4. In particular, we find that an extraschedular rating under 38 C.F.R. § 3.321 is not warranted because the lumbosacral strain (as opposed to disc disease) is not shown to have required frequent hospitalizations or caused marked interference with employment which would render application of regular schedular standards impractical. The veteran's complaints of pain are specifically encompassed in the schedular rating. ORDER Service connection for degenerative disc disease of L5 and S1 vertebrae is denied. Restoration of a 10 percent disability evaluation for lumbosacral strain is granted, subject to the regulations governing payment of monetary awards. A rating in excess of 10 percent for lumbosacral strain is denied. GEORGE R. SENYK 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.