Citation Nr: 1326059 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 10-07 899 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for thoracolumbar spinous muscle spasms, prior to April 12, 2010. 2. Entitlement to an initial rating in excess of 20 percent for thoracolumbar spinous muscle spasms beginning April 12, 2010. 3. Entitlement to service connection for residuals of a septoplasty. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from October 2003 to September 2007. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a November 2008 rating decision issued by the Regional Office (RO) in Gretna, Louisiana. The case comes to the Board from the RO in Manchester, New Hampshire. The Board has restated the issue of service connection for the Veteran's nasal condition, labeled by the RO as deviated septum status post septoplasty, as service connection for residuals of a septoplasty, to more accurately reflect the Veteran's contentions. The Board further notes that the Veteran filed a notice of disagreement (NOD) to the April 12, 2010 effective date for the increased 20 percent rating for his low back disability. The Board also notes that in a pleading the Veteran stated that he believed that he developed a bilateral knee disorder as a result of his service connected low back disorder. The Agency of Original Jurisdiction (AOJ) has not evaluated this claim and it is not properly before the Board at this time. It is referred to the RO/AMC for appropriate action. FINDINGS OF FACT 1. For the period prior to April 12, 2010, the Veteran's low back disability was characterized by muscle spasm or guarding severe enough to result in an abnormal curvature of the spine and/or flexion of 60 degrees or less. Range of motion was greater than 30 degrees. 2. For the period beginning April 10, 2010, range of motion of the Veteran's spine was better than 30 degrees and there was no ankylosis. 3. A deviated nasal septum was not noted at entry to service and symptoms associated with the Veteran's acquired deviated nasal septum got worse during his service, necessitating a septoplasty. CONCLUSIONS OF LAW 1. For the period prior to April 12, 2010, the criteria for a 20 percent rating were met for the Veteran's low back disability. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2012). 2. For the period beginning April 12, 2010, the criteria for a rating in excess of 20 percent for the Veteran's low back disability were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2012). 3. Residuals of a septoplasty were incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. The Veteran was sent a letter in August 2008 which explained how VA could help him obtain evidence in support of his claims. The August 2008 letter also explained what the evidence needed to show in order to establish entitlement to service connection for a disability as well as how VA assigns ratings and effective dates for service connected disabilities. The Veteran's claim for a higher initial rating for his low back disorder is a downstream issue. The RO granted service connection for a low back disorder and assigned a 10 percent rating. The Veteran then filed a notice of disagreement arguing that he should have received a higher rating. In these types of circumstances, VA is not required to issue a new VCAA letter. See VAOPGCPREC 8-2003 (Dec. 2003). In this precedential opinion, the General Counsel held that although VA is required to issue a Statement of the Case (SOC) if the downstream issue is not resolved, 38 U.S.C.A. § 5103(a) does not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. The Veteran was sent an SOC which addressed this issue in December 2009. The claim for a higher rating for the Veteran's back disorder was also readjudicated in April 2010, which granted a 20 percent rating effective April 12, 2010. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, private treatment records, and the written contentions of the Veteran. The Veteran was afforded low VA examinations which documented the symptoms and functional effects of his low back disability. The Board finds that VA satisfied its requirements pursuant to the VCAA in this case. Initial Rating The Veteran's low back disability was rated 10 percent disabling until April 12, 2010, and 20 percent thereafter. The Veteran contends that he should have received higher ratings. Disability ratings are determined by applying criteria that are set forth in the VA's Schedule for Rating Disabilities (38 C.F.R. Part 4). Ratings are based on average impairments of earning capacity resulting from particular diseases and injuries and the residuals thereof in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities are described utilizing diagnostic codes set forth in 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In cases, such as this one, in which a claim for a higher evaluation arises out of the initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the claim and appellate process. See generally Fenderson v. West, 12 Vet. App. 119 (1999). See also Hart v. Mansfield, 21 Vet. App. 505 (2007). Since the Veteran's low back disability is not specifically mentioned in the rating schedule, it is rated by analogy to a closely related disease or injury in which not only the functions affected but the anatomical location and symptoms are analogous. In this case, the Veteran's disability was analogized to lumbar strain, 38 C.F.R. § 4.71a, diagnostic code 5237. This disability, as well as other disabilities of the spine, are rated pursuant to a general formula. Pursuant to the general rating formula for diseases and injuries of the spine a 10 percent rating is assigned for forward flexion of the thoracolumbar spine that is greater than 60 degrees but not greater than 85 degrees; or a combined range of motion of the thoracolumbar spine that is greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness that does not result in an abnormal gait or an abnormal spinal contour; or a vertebral body fracture with the loss of 50 percent or more of the height thereof. A rating of 20 percent is assigned for forward flexion of the thoracolumbar spine that is greater than 30 degrees but not greater than 60 degrees; or a combined range of motion of the thoracolumbar spine that is not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. An evaluation of 40 percent is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned where there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned where there is unfavorable ankylosis of the entire spine. These rating criteria apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown , 8 Vet. App. 202, 205-206 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. There are also alternative criteria for rating intervertebral disc syndrome based upon incapacitating episodes. However that is inapplicable in this case because the Veteran has not been diagnosed with intervertebral disk syndrome and, in any event, there have been no incapacitating episodes. Chiropractic records from March 2007 to June 2007, while the Veteran was still in service, showed complaints of constant left lower back pain. It occurred most frequently in the afternoon or evening or after light activity. The pain radiated all the way down the left side to the toes. Nothing helped relieve the pain. Bending, sneezing, lying down, lifting, and prolonged sitting, standing, or walking, exacerbated his symptoms. He also reported increased sensitivity, numbness, stiffness, tightness, and tingling. In March 2007 range of motion of the spine was 35 degrees of flexion, 15 degrees of extension, 25 degrees of right lateral bending, 5 degrees of left lateral bending, 35 degrees of rotation to the right, and 10 degrees of rotation to the left. The chiropractor documented increased muscle tone/spasm of the erector spinae and quadratus lumborum on the left. There was tenderness at L1, L2, and L5 and radiating pain. X-rays showed that the spine tilted to the left. In April 2007 range of motion was 42 degrees of flexion, 23 degrees of extension, 20 degrees of right lateral bending, 14 degrees of left lateral bending, 39 degrees of rotation to the right, and 28 degrees of rotation to the left. In June 2007 flexion was to 49 degrees, extension to 25 degrees, right lateral bending to 24 degrees, left lateral bending to 19 degrees, right rotation to 42 degrees, and left rotation 37 degrees. At the June 2007 chiropractic visit, the chiropractor noted that the Veteran's head tilted to the right and his shoulder appeared high on the left. Spasm and tenderness were again noted. The Veteran was examined by VA in April 2008, less than a year after his service. At that time his posture and gait were normal. The Veteran described back pain in the lower thoracic muscles on both sides with the left being worse than the right, and his most recent treatment for this was chiropractic care. Occasionally, muscle spasms would radiate down into the lumbar spine. There was no actual tenderness to palpation over the lumbar spine. He had periodic flare ups of more intense pain. Range of motion of the lumbar spine was flexion to 78 degrees, extension to 12 degrees, right flexion 21 degrees, left flexion 28 degrees, rotation to the right 21 degrees, rotation to the left 26 degrees. He could bend over and stand repeatedly without any problem. He could squat and stand repetitively without difficulty, pain, lack of coordination, swelling, or weakness occurring. The examiner diagnosed thoracolumbar spinous muscle spasms, which occurs off and on, depending upon activities. There were no signs of any complicating muscle spasms and no signs of lumbar disk disease upon examination. However, an x-ray report indicated mild dextroscoliosis of the midthoracic spine. The major functional impairment was related to the muscle spasms. In his November 2008 notice of disagreement, the Veteran indicated that he had worsening back pain and it was every day. On his VA Form 9 the Veteran again indicated he had worse daily back pain, which radiated up his neck and down his legs. He wrote that x-rays showed scoliosis of his spine. The Veteran was reexamined by VA in April 2010. The examiner noted that x-rays taken at the April 2008 compensation examination did not show any significant pathology of the lumbar or thoracic spine. At the time of the examination, the Veteran reported his pain mostly as flares. It did not radiate. At times his leg felt numb. He was fully employed at a moderately active job where he did some lifting but it was not extremely heavy lifting. He did not report any incapacitating episodes of back pain. Examination of the thoracolumbar spine showed mild rotoscoliosis, concave to the right side. In a standing position, the left scapula was slightly higher than the right and the pelvis was level. There was minimal tenderness to palpation in the paravertebral musculature bilaterally and no spasms were noted. Flexion was from 0 to 50 degrees which slightly increased to 55 degrees after repetition. The Veteran reported pain with this motion. Extension was 0 to 30 degrees, left and right flexion were both 0 to 30 degrees, and left and right rotation were also each 0 to 30 degrees. There was no change in any of these motions after repetition. There was no instability, weakness, or fatigability. The examiner did not anticipate significant increase in the range of motion loss after repetition or during flares. Reflexes were present and active and symmetrical at the knees and ankles. Muscle strength in the lower extremities was full. No sensory disturbances were noted in either lower extremity; there were no sensory abnormalities to monofilament or scraping or scratching. Neurologic assessment was no abnormal findings. The examiner assessed that the Veteran had lumbar strain with mild effects on activities of daily living and no effects on employment. With regard to the period prior to April 12, 2010, giving the benefit of the doubt to the Veteran, the criteria for a 20 percent rating were met. While flexion was to 78 degrees at the April 2008 examination, records from before and after that time show a greater loss of motion. Chiropractic records from the last year of the Veteran's service, show forward flexion of less than 60 degrees on multiple occasions. Forward flexion was also less than 60 degrees at the April 2010 examination. Since measurements both before and after the April 2008 examination showed a greater degree of loss of motion, the Board finds that the measurement documented at the April 2008 examination was not the best representation of the Veteran's capabilities under ordinary conditions of daily life and that the measurements before and after that examination showing forward flexion between 31 and 60 degrees are more representative. Additionally, while the Veteran's spinal x-rays in April 2008 were interpreted by both of the examiners as normal, the thoracic spine x-ray report documented dextroscoliosis, which is an abnormal curvature of the spine to one side. This was consistent with the findings of the Veteran's chiropractor in service, who documented a curvature of the Veteran's spine to the left, as well as the findings on the April 2010 examination which showed the spine was concave to the right. Muscle spasm was also documented in service and at the April 2008 examination and, giving the benefit of the doubt to the Veteran, it is reasonable to conclude that there was a causal relationship between the muscle spasm and the abnormal curvatures of the spine. However, the criteria for a rating in excess of 20 percent for the Veteran's low back disability were not met at any time. At no time was the Veteran shown to have forward flexion of 30 degrees or less, even after repetition, nor was he shown to have any type of ankylosis. Either forward flexion of 30 degrees or less or favorable ankylosis of the thoracolumbar spine is required for the next higher 40 percent rating, and neither of these factors were shown here. Also, here there is no lay or medical evidence that established that he is functionally limited to 30 degrees or less of flexion. DeLuca v. Brown , 8 Vet. App. 202 (1995). The Board also does not find the criteria for a separate rating for neurological abnormalities was met. While the Veteran complained of radiating pain and some numbness of his left leg, a neurological examination in April 2010 was normal and the Veteran has not been diagnosed with any type of neurological problem nor does he contend that he has a specific neurological problem. The Veteran is competent to report that he has radiating pain and numbness. However, the Board finds that the detailed observations of a skilled professional are more probative and credible as to the existence of a neurological impariement associated with the spine. The Board finds that the Veteran's symptoms do not present such an exceptional disability picture as to render the schedular rating inadequate. 38 C.F.R. § 3.321(b). See also Thun v. Peake, 22 Vet. App. 111, 115 (2008) (the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular evaluation is inadequate). Symptoms such as muscle spasm, pain, and limitation of motion are expressly contemplated in the rating schedule. Moreover, no unusual factors such as repeated hospitalizations or material interference with employment are present in this case. The Veteran has not indicated that his low back disability hinders his employment. For these reasons, a rating of 20 percent for the period prior to April 12, 2010 is granted. However, a rating in excess of 20 percent is denied for the entire period at issue. Service connection The Veteran contends that he developed scarring and deformity of the nose as the result of a septoplasty in service. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for some chronic diseases which are listed in 38 C.F.R. § 3.309 that manifest to a compensable degree within one year of separation from service; however, the Veteran's nasal disability does not fall into this category. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In the case of a deviated septum, only the acquired form of this condition may be service connected. 38 C.F.R. § 4.97, diagnostic code 5602. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In most cases, establishing a nexus to service requires medical evidence, although in certain circumstances lay evidence of the association of a disorder with a disease or injury in service will be sufficient. However, in the case of the chronic diseases set forth in 38 C.F.R. § 3.309, the requisite nexus may also be provided by evidence of continuity of symptoms. Walker v. Shinseki, 708 F.3d 1331 (2013). When determining service connection, a presumption of soundness applies. 38 C.F.R. § 3.304(b). Pursuant to such presumption, a Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. Id. Moreover, even if noted at entry, a preexisting condition will be considered to have been aggravated by service if there is an increase in severity during service. 38 C.F.R. § 3.306. The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury was otherwise aggravated by service. 38 C.F.R. § 3.306. In some circumstances lay statements may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In ascertaining the competency and probative value of lay evidence, decisions of the United States Court of Appeals for Veterans Claims (Court) have underscored the importance of determining whether a layperson is competent to identify the medical condition in question. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) In this case, a deviated septum was not noted at entry. In fact, an entrance examination in February 2003 specifically noted that the Veteran's nose was normal. While the Veteran marked "yes" in the box next to ear, nose, and throat trouble on a "report of medical history" done in conjunction with this examination, notations on the form indicate that this referred to a tonsillectomy in childhood. A notation in the service treatment record from May 2006 indicates that post-deployment to Southeast Asia the Veteran was diagnosed with a deviated septum. The Veteran complained of nasal pain, stuffiness, and frequent nose bleeds since deployment. He had a history of hay fever and a deviated septum since he was a child. The examiner noted that the Veteran's nose was severely deviated to the left side and there was some mucosal swelling. The medical provider diagnosed a deviated septum. The Veteran was referred to a specialist where it was noted that the Veteran had a C shaped deformity of the nasal dorsum distal to the nasal bones and an anterior deviation of his septum which accounted for moderate to severe obstruction of the left nasal airway. The diagnosis was deviated nasal septum with turbinate dysfunction. He was referred for a septoplasty, which apparently took place although the operative report is not in the claims file. A May 2007 service treatment record reflected that the Veteran had surgery on his nose a year ago, but shortly after the surgery he developed a hemorrhage and had to go to the emergency room to have his nose repacked. When it healed it was twisted and still blocked on the right side. Examination of the nose showed tenderness and a deviated septum. An acquired deviated nasal septum was noted at his separation examination in July 2007. An April 2008 examination indicated that the Veteran's nose was clear and that the septoplasty had improved airflow through the Veteran's nose. However, the examiner did not document whether there was any scarring or other visual abnormalities of the nose. The Veteran contends that since his septoplasty, his nose was disfigured from buildup of scar tissue. The Veteran is competent to report that his nose has an abnormal appearance since the in-service surgery, and this is consistent with the May 2007 record from just a few months prior to his discharge indicating that the Veteran's nose was "twisted." His statements are generally credible, and the degree of disfigurement of his nose is a rating issue rather than a service connection issue. Although in his notice of disagreement the Veteran agreed that he had a deviated septum since before service, the evidence shows that the condition got worse in service. The Veteran's deviated septum was not significant enough to be noted as an abnormality at his enlistment examination, while reports in service indicate a severe septal deviation. Moreover, there is no evidence that the Veteran had any symptoms related to his deviated septum prior to service, while in service he reported symptoms including congestion and frequent nose bleeds. To the extent that this condition may have preexisted service by the Veteran's admission, it was clearly aggravated therein. In order to rebut the presumption of soundess, there must be both clear and unmistakable evidence that the disability preexisted service and was not aggravated therein. 38 U.S.C.A. 1111, . Walker v. Shinseki, 708 F.3d 1331 (2013). Here, the second prong is not rebutted. While 38 C.F.R. § 3.306 prohibits service connection for the anticipated results of medical treatment for a disorder that preexisted service, that bar does not apply when, as here, the underlying condition was aggravated in service. Moreover, it appears that there may have been a post-operative worsening rather than an improvement. For these reasons, service connection for residuals of a septoplasty is granted. ORDER A rating of 20 percent for thoracolumbar spinous muscle spasms is granted for the period prior to April 12, 2010. A rating in excess of 20 percent for thoracolumbar spinous muscle spasm is denied for the period beginning April 12, 2010. Service connection for residuals of a septoplasty is granted. ____________________________________________ H.N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs