BVA9501186 DOCKET NO. 92-19 129 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a cervical spine disorder. 2. Entitlement to service connection for a thoracic spine disorder. 3. Entitlement to an increased disability evaluation for post- operative residuals of a spinal fusion at L4/L5 with spina bifida, spondylolysis superimposed on spondylolisthesis and recurrent lumbosacral strain, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. T. Hutcheson, Associate Counsel INTRODUCTION The veteran had active military service from July 1966 to July 1969. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from a November 1991 rating decision of the Waco, Texas Regional Office (hereinafter "the RO") which denied both service connection for a cervical spine disorder and a thoracic spine disorder and an increased disability evaluation for the veteran's service-connected post- operative residuals of a spinal fusion at L4/L5 with spina bifida, spondylolysis superimposed on spondylolisthesis and recurrent lumbosacral strain. In December 1994, the Board notified the veteran's accredited representative of its proposed reliance upon a certain medical text in compliance with the holding of the United States Court of Veterans Appeals (hereinafter "the Court") in Thurber v. Brown, 5 Vet.App. 119 (1993). In December 1994, the accredited representative submitted a written statement indicating that the veteran had no further argument or comment. The veteran has been represented throughout this appeal by the American Legion. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that the RO erred in denying both service connection for a cervical spine disorder and a thoracic spine disorder and an increased disability evaluation for his service-connected low back disorder. He contends that he incurred the claimed disabilities during active military service when he was thrown from a truck and landed on some rocks in August 1968. He advances that his service-connected low back disorder is currently productive of significant physical impairment which merits the assignment of a 60 percent disability evaluation under the provisions of 38 C.F.R. Part 4, Diagnostic Code 5293 (1993). The Board's attention is directed to the provisions of 38 C.F.R. § 4.7 (1993). DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, it is the Board's decision that the record supports the allowance of a 60 percent disability evaluation for his service-connected post-operative low back disorder and a preponderance of the evidence is adverse to his claim for service connection for a cervical spine disorder and a thoracic spine disorder. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. A cervical spine disorder was not shown during active military service and the veteran's degenerative changes of the cervical spine were first manifested many years after service separation. The veteran's present cervical spine disorder did not originate during active military service. 3. A Schmorl's node of the thoracic spine is a congenital defect. 4. An acquired thoracic spine disorder was not shown during active military service and the veteran's degenerative joint disease of the thoracic spine was first manifested many years after service separation. The veteran's acquired thoracic spine disorder did not originate during active military service. 5. The veteran's post-operative low back disorder has been shown to be productive of persistent symptoms consistent with sciatic neuropathy including characteristic pain, demonstrable muscle spasms, neurological abnormalities and little intermittent relief. CONCLUSIONS OF LAW 1. A cervical spine disorder was not incurred in or aggravated by wartime service and arthritis may not be presumed to have been incurred during wartime service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1993). 2. An acquired thoracic spine disorder was not incurred in or aggravated by wartime service and arthritis may not be presumed to have been incurred during wartime service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1993). 3. The schedular criteria for a 60 percent disability evaluation for the veteran's post-operative residuals of a spinal fusion at L4/L5 with spina bifida, spondylolysis superimposed on spondylolisthesis and recurrent lumbosacral strain have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.3, 4.7, 4.20 and Diagnostic Code 5293 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (hereinafter "VA") has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. A review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed. Accordingly, a remand in order to allow for additional development of the record is not necessary. I. Cervical Spine Disorder The veteran asserts that he sustained a chronic cervical spine disorder when he was thrown from a truck onto some rocks during active military service. Service connection may be granted for a disability arising from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). Where a veteran served continuously for ninety days or more during a period of war and arthritis becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (1993). The veteran's service medical records make no reference to a cervical spine disorder or symptoms indicative of the onset of such a disability. The documentation does indicate that the veteran suffered from a significant low back disability characterized as a spina bifida occulta defect at L5/S1 and bilateral spondylolysis at L5 with very early spondylolisthesis of L5 on S1. At the March 1969 physical examination for service separation, the veteran complained of "back pain." The Army examiner observed no cervical spine abnormalities. At a May 1971 hearing conducted before a hearing board, the veteran testified that he fell approximately five to six feet from the back of a two and one-half ton truck onto some crushed stone in August 1968 while stationed at Fort Lewis, Washington. He stated that he landed flat on his back; experienced a sharp pain in the back; and subsequently received a diagnosis of and treatment for a chronic back disorder. He clarified that his back pain was located in the low back region. At the July 1971 VA examination for compensation purposes, the veteran complained of severe low back pain which radiated into his arms and legs. He reported having sustained a prior back injury when he fell from a moving truck. The veteran exhibited a full range of motion of the cervical spine with "very little expression of pain." The VA examiner observed that the veteran's cervical spine was normal. A contemporaneous X-ray study of the cervical spine revealed a change in direction of the lordotic curve and no other abnormalities. An August 1971 VA hospital summary notes that the veteran was admitted for a period of observation and examination. He presented complaints of lower back pain since falling from a truck in 1968. On examination, he exhibited tenderness over the region of C4-C5 and the C5/C6 interspaces and a range of motion of the cervical spine of forward flexion to 65 degrees, extension to 50 degrees, lateral flexion to 45 degrees and bilateral rotation to between 60 and 70 degrees. Contemporaneous X-ray and neurological studies revealed no abnormalities. A March 1974 VA complete myelogram revealed no abnormalities of the cervical spine. An April 1974 VA neurological evaluation states that the veteran presented no significant complaints of neck pain. A January 1978 neurosurgical evaluation from Edwin R. Buster, III, M.D., reports that the veteran exhibited a full range of motion of the neck with pain. A January 1983 VA treatment record states that the veteran exhibited limited motion of the cervical and lumbar segments of the spine. An impression of "degenerative disc disease" was advanced. A December 1989 VA treatment indicates that the veteran reported having been involved in motor vehicle accidents in December 1987 and February 1988. At the September 1991 VA examination for compensation purposes, the veteran complained of progressive chronic neck pain with radiation into the posterior aspects of the upper arms and intermittent numbness of the hands. He reported having fallen from a truck during active military service and subsequently experiencing some neck pain. On examination, the veteran exhibited approximately thirty percent of the normal range of motion of the cervical spine; two plus and symmetrical upper extremity deep tendon reflexes; and subjective diffuse numbness of the hands. The examiner diagnosed the veteran as suffering from cervical spine pain and peripheral neuropathy. A contemporaneous X-ray study of the cervical spine showed narrowing of the C6/C7 disc space with slight anterior spurring and reversal of lordosis with normal alignment. The VA radiologist advanced an impression of slight degenerative spondylosis limited to C6/C7. In his May 1992 substantive appeal, the veteran conveys that he was thrown from a truck during active military service and landed on his head, neck, upper back and lower back. He avers that the 1971 VA X-ray study of the cervical spine showing a change in direction of the lordotic curvature establishes that he sustained a chronic cervical spine disorder during active military service. A September 1992 written statement from the veteran advances that he sustained a chronic neck disorder in the same accident in which he incurred his service-connected low back disorder. The Board has weighed all of the probative evidence including the veteran's argument on appeal. Firstly, the service medical records document no complaints or findings concerning a cervical spine disability. Although the clinical record notes various complaints of pain and tenderness of the cervical spine between August 1971 and 1983, the first clinical evidence of the onset of a cervical spine disorder was reported in January 1983, some fourteen years after service separation. The Board has carefully considered the veteran's contention that a chronic cervical spine disorder was shown by X-ray examination in 1971. I find this argument to be unpersuasive given the VA examiner's contemporaneous observation that the veteran exhibited a normal cervical spine. In any event, this finding post dated service by some 2 years. In the absence of evidence of the claimed disorder during or proximate to active military service, I conclude that service connection is not warranted. Accordingly, service connection for a cervical spine disorder is denied. II. Thoracic Spine Disorder The veteran contends that he sustained a thoracic spine disorder when he fell from a truck during active military service. Service connection may be granted for a disability arising from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991). Where a veteran served continuously for ninety days or more during a period of war and arthritis becomes manifest to a degree of ten percent within one year of termination of such service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (1993). Congenital or developmental defects as such are not diseases or injuries within the meaning of applicable legislation providing for compensation benefits. 38 C.F.R. § 3.303(c) (1993). The veteran's service medical records do not refer to either a thoracic spine disorder or symptoms indicative of the onset of such a disability. At the March 1969 physical examination for service separation, the veteran was found to exhibit no thoracic spine abnormalities. At the July 1971 VA examination for compensation purposes, the veteran complained of severe low back pain with radiation into the arms and legs. He reported having sustained a prior back injury. The veteran exhibited a full range of motion of the dorsal (thoracic) and lumbosacral segments of the spine with subjective pain on bilateral rotation. A contemporaneous X-ray study of the thoracic spine showed a Schmorl's node between D4 and D5 (T4 and T5) and no other abnormalities. An August 1971 VA hospital summary notes that the veteran exhibited tenderness over the D5-D8 (T5-T8) area. A March 1974 VA complete myelogram revealed no abnormalities of the thoracic spine. A June 1975 statement from Jack A. Kern, M.D., indicates that the veteran exhibited "rather marked tenderness from the dorsal (thoracic) spine to the hips." Dr. Kern found the veteran to be suffering from a post-operative lumbar disorder with "a significant psychological overlay." A December 1989 VA treatment entry indicates that the veteran reported having been involved in motor vehicle accidents in December 1987 and February 1988. At the September 1991 VA examination for compensation purposes, the veteran complained of progressive upper back pain. He reported having fallen from a truck during active military service and subsequently experiencing upper back pain. The VA examiner noted almost no motion of the lumbosacral spine; a "fair amount" of spasms in the upper thoracic area; and tenderness of the affected musculature upon palpation. An impression of thoracic spine pain was advanced. A contemporaneous X-ray study of the thoracic spine showed minor anterior spurring at T3/T4. The VA radiologist advanced an impression of minor degenerative joint disease of the upper thoracic spine. In his May 1992 substantive appeal, the veteran conveys that he was thrown from a truck during active military service and landed on his head, neck, upper back and lower back. He states that the 1971 VA X-ray study of the thoracic spine showing the presence of a Schmorl's node establishes that he sustained a chronic thoracic spine disorder during active military service. A September 1992 written statement from the veteran advances that he sustained a chronic upper back disorder in the same accident in which he incurred his service-connected low back disorder. The Board observes that the record does not contain any objective evidence of the onset of an acquired thoracic spine disorder during active military service or for many years following service separation. Indeed, the veteran's present degenerative joint disease of the thoracic spine was first diagnosed in 1991, some twenty-two years after service. In addressing the veteran's assertion that the 1971 VA X-ray study showing a Schmorl's node between T4 and T5 establishes the onset of the claimed disorder, I note that a Schmorl's node is a congenital defect for which service connection may not be granted. 38 C.F.R. § 3.303(c) (1993). Medical authorities clarify that: Schmorl's node is a prolapse of nuclear material through a small defect in the cartilaginous plate. A congenital condition that causes larger than normal openings in the bony end plates permits many herniations throughout the spine. Samuel L. Turek, M.D., Orthopaedics, Principles and Their Applications, 1487 (4th ed. 1984). In the absence of evidence of the onset of an acquired thoracic spine disorder during or proximate to active military service, I conclude that service connection is not warranted. Accordingly, service connection for an acquired thoracic spine disorder is denied. III. Low Back Disorder A. Historical Review The veteran's service medical records indicate that he exhibited a spina bifida occulta defect at L5/S1 and bilateral spondylolysis at L5 with very early spondylolisthesis of L5 on S1 manifested by low back pain with radiation into the legs and the feet and bilateral numbness of the feet. He was provided with a chair back brace for his low back symptoms. The report of the July 1971 VA examination for compensation purposes notes that the veteran complained of severe low back pain with radiation into the arms and the legs. The examiner observed that the veteran employed a chair back brace. The veteran exhibited pain upon deep digital palpation in the sciatic notch and a full range of motion of the lumbosacral spine with subjective complaints of low back and bilateral sciatic pain on bilateral rotation. Contemporaneous X-ray studies of the spine revealed spondylolysis of the pars inarticularis of the L5; first degree spondylolisthesis between L5 and S1; and spina bifida occulta of L5/S1. Diagnoses of chronic recurrent lumbosacral strain and spina bifida were advanced. In October 1971, service connection was established for spina bifida with spondylolysis superimposed on spondylolisthesis and chronic recurrent lumbosacral strain evaluated as 10 percent disabling. An April 1973 VA hospital summary relates that the veteran underwent a posterior decompression and lateral fusion at L4/L5. In June 1973, the RO recharacterized the veteran's service-connected low back disorder as post-operative residuals of a spinal fusion at L4/L5 with spina bifida, spondylolysis superimposed on spondylolisthesis and recurrent lumbosacral strain evaluated as 40 percent disabling. An October 1973 VA treatment record notes that the veteran continued to complain of back and left leg pain. Contemporaneous X-ray studies of the lumbosacral spine revealed progression of the veteran's fusion. In November 1973, the RO raised the disability evaluation for the veteran's service-connected low back disorder to 60 percent. A November 1977 VA hospital summary conveys that the veteran was hospitalized for a period of observation and examination. On examination, the veteran complained of severe back and leg pain. He exhibited a reasonably good forward flexion primarily at the hip and in the thoracic spine; good muscle strength and no pathological reflexes. A contemporaneous X-ray study showed a solid fusion of L4/L5 with no evidence of motion. In January 1978, the RO reduced the disability evaluation for the veteran's low back disorder from 60 to 40 percent. B. Increased Disability Evaluation Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). The rating schedule does not specifically address post-operative spinal fusion residuals. In such situations, it is permissible to evaluate the veteran's service-connected disorder under provisions of the schedule which pertain to a closely-related disease or injury which is analogous in terms of the function affected, anatomical localization and symptomatology. 38 C.F.R. § 4.20 (1993). The Board finds that the veteran's service-connected low back disability is most closely analogous to intervertebral disc syndrome as both disorders are manifested by significant neurological and functional impairment of the back and the lower extremities. A 40 percent disability evaluation is warranted for severe intervertebral disc syndrome with recurring attacks and intermittent relief. A 60 percent evaluation requires pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy (i.e., with characteristic pain, demonstrable muscle spasms, and absent ankle jerk or other neurological findings appropriate to the site of the diseased disc) and little intermittent relief. 38 C.F.R. Part 4, Code 5293 (1993). Where there is a question as to which of two disability 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). VA treatment records dated between 1989 and 1991 relate that the veteran complained of chronic low back pain. A September 1989 treatment entry notes that the veteran complained of chronic low back pain; bilateral leg numbness; and leg movement in bed. He reported experiencing an increase in his symptomatology after having been involved in December 1987 and February 1988 motor vehicle accidents. VA medical personnel observed that the veteran exhibited 10 degrees of flexion with no extension or bilateral movements; two plus and equal deep tendon reflexes; normal muscle strength; and a subjective decrease in sensation of the medial thighs. A September 1989 orthopedic evaluation relates that the veteran complained of bilateral lower extremity radicular pain in all but the anterior legs and occasional paresthesia of the legs. The examiner reported that the veteran was unable to forward flex beyond 20 degrees and exhibited normal muscle strength; bilateral three plus deep tendon reflexes; reduced sensation in a stocking distribution upon application of a pinwheel to the left leg; and bilateral clonus. The VA physician commented that the veteran was able to rise from a chair without difficulty and complained of low back pain without actual rotation of the spine. The doctor noted further that a psychiatric evaluation might be appropriate as the veteran's symptoms and physical findings were contradictory at times. An impression of chronic low back pain with inconsistent physical findings was advanced. A March 1990 orthopedic evaluation indicates that the veteran complained of progressive chronic low back pain and "bouncing legs and arms." On examination, the veteran was able to do a deep knee bend. He exhibited normal lower extremity muscle strength; weakness of the quadriceps on extension testing; bilateral three plus deep tendon reflexes; decreased sensation in a stocking distribution from the umbilicus downward; and clonus. An impression of chronic low back pain with neurological findings inconsistent with dermatomic nerve distributions was advanced. A May 1991 VA treatment record conveys that the veteran complained of chronic low back pain with radiation into the posterior thighs. The VA medical personnel found a tender lumbosacral area; limited forward flexion; two plus deep tendon reflexes and intact sensation. At the September 1991 VA examination for compensation purposes, the veteran complained of progressive chronic low back pain with radiation through the legs to the toes and bilateral numbness of the feet in a stocking distribution. He reported using a back brace on a daily basis and possessing a T.E.N.S. unit. The VA examiner observed almost no motion of the lumbar spine in any direction; significant lumbar paraspinal muscle spasm; tenderness of the lumbar paraspinal muscles; two plus and symmetrical deep tendon reflexes at the ankles and the knees; and markedly decreased bilateral "vibratory" sensation in a stocking distribution up to the knees. Contemporaneous electromyogram and nerve conduction studies advanced findings consistent with right S1 radiculopathy. X-ray studies of the lumbosacral spine showed degenerative changes at L4/L5 with a bilateral laminectomy of L5; fusion of L4 and L5 to the sacrum; slight degenerative disc disease at L4/L5; and minor spondylolisthesis at L5/S1. The veteran was diagnosed as suffering from post-operative residuals of a lateral fusion and laminectomy at L4/L5 with spina bifida, spondylolysis superimposed on spondylolisthesis, chronic lumbosacral strain and peripheral neuropathy. In his May 1992 substantive appeal, the veteran advances that his service-connected low back disorder merits a 60 percent disability evaluation as he suffers from sciatic neuropathy, demonstrable muscle spasms and impaired lower extremity sensation. The Board has made a careful longitudinal review of the record. The veteran's service-connected low back disorder has been shown to be manifested by persistent symptoms consistent with sciatic neuropathy including characteristic pain, demonstrable muscle spasms, neurological abnormalities and little intermittent relief. While acknowledging that the veteran has been found to have a significant psychiatric overlay to his service-connected low back disorder and that there have been intercurrent injuries, I find that his symptomatology of the service connected disability most closely approximates the schedular criteria for pronounced intervertebral disc syndrome under the provisions of 38 C.F.R. Part 4, Diagnostic Code 5293 (1993). Upon application of 38 C.F.R. § 4.7 (1993), I conclude that a 60 percent disability evaluation is now warranted. ORDER Service connection for a cervical spine disorder is denied. Service connection for an acquired thoracic spine disorder is denied. A 60 percent disability evaluation for post-operative residuals of a spinal fusion at L4/L5 with spina bifida, spondylolysis superimposed on spondylolisthesis and recurrent lumbosacral strain is granted subject to the laws and regulations governing the award of monetary benefits. E. W. SEERY 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 granting less than the complete benefit, or benefits, sought on appeal is appealable to the Court 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.