Citation Nr: 18148017 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 14-38 824 DATE: November 6, 2018 ORDER Service connection for a lumbar spine disability is denied. A rating higher than 10 percent for trigeminal neuralgia is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that lumbar spine degenerative disc disease began during active service, or is otherwise related to an in-service injury, event, or disease. 2. Trigeminal neuralgia is manifested by moderate incomplete paralysis without organic changes. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for a rating higher than 10 percent for trigeminal neuralgia have not been met. 38 U.S.C. § 1155, 5107(b); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8405. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from June 1970 to September 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2012 and August 2014 rating decisions. In his March 2012 claim, the Veteran sought service connection for his “back.” This was adjudicated by the VA Regional Office as a claim for a lumbar spine disability, and this was the issue appealed to the Board. The Veteran is notified that if he believes he has a neck (or cervical spine) disability related to service, he may file a separate claim for that. 1. Service connection for a lumbar spine disability The Board concludes that, while the Veteran has a diagnosis of lumbar spine degenerative disc disease, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records are negative for any complaints, treatment, or diagnoses relating to the lumbar spine. An April 1987 service examination conducted shortly before his discharge was normal, and he denied a history of any recurrent back pain. An undated entry in his service treatment records indicates that no separation examination was conducted. There is no x-ray evidence in the first post-service year. During a June 2012 VA examination, and in September 2012 VA records, the Veteran related his lumbar spine disability to a motor vehicle accident from service. Service treatment records do show that he was involved in an accident in February 1978. However, he was only diagnosed and treated for a whiplash injury to the right lateral neck, manifested by cervical muscle spasm and limited motion. There is no indication of a lumbar spine or low back injury. To that end, the June 2012 VA examiner stated that the Veteran’s degenerative disc disease was likely the result of normal wear and tear and degeneration over time since his discharge, as there were no chronic or ongoing complaints of back pain found in the service treatment records. During the examination, the Veteran stated that he had experienced progressively increasing back pain since the accident in service. While he is competent to report symptoms of pain, his reports are largely not credible due to inconsistency with other evidence in the record. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). As discussed above, his service treatment records show that he denied any recurrent back pain as late as April 1987. Similarly, VA records show he received outpatient care since 1995, but there are no documented reports of back pain for many years. The Veteran denied the presence of any pain on several occasions, including May 2001, July 2003 and May 2004. The earliest documented complaints of low back pain are from private records dated March 2009. At the time, the Veteran denied any precipitating event. Similarly, records from August 2009 show he reported the onset of symptoms as a “couple of years,” and he specifically declined to report his condition as being related to an accident. For these reasons, the overall weight of the evidence is against finding that the Veteran sustained a lumbar spine injury in service or that he experienced continuous low back pain since service. Therefore, service connection is not warranted. 2. A rating higher than 10 percent for trigeminal neuralgia The Veteran’s trigeminal neuralgia is currently assigned a 10 percent rating under Diagnostic Code (DC) 8405, which addresses neuralgia of the fifth (trigeminal) cranial nerve. It is based on DC 8205, which provides 10 and 30 percent ratings for moderate and severe incomplete paralysis, respectively. A maximum 50 percent rating is assigned when there is complete paralysis. 38 C.F.R. § 4.124a. Terms such as “moderate,” or “severe” are not defined in the rating schedule, and the Board must evaluate the evidence of record and reach a decision that is equitable and just. See 38 C.F.R. § 4.6. Under VA’s rating schedule, “neuralgia,” characterized usually by a dull and intermittent pain, is to be rated with a maximum equal to moderate incomplete paralysis. However, tic douloureux may be rated up to complete paralysis. 38 C.F.R. § 4.124. Notably, the Veteran’s service treatment records contain several diagnoses of tic douloureux. “Neuritis,” characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain (at times excruciating), is to be rated with a maximum equal to severe incomplete paralysis. The maximum rating which may be assigned for neuritis not characterized by the above organic changes will be that for moderate incomplete paralysis. 38 C.F.R. § 4.123. The evidence does not show any motor loss or sensory impairment. During a June 2012 VA examination, the Veteran denied any weakness or paralysis, and the examination revealed normal sensation and symmetric motor function. An additional VA examination in May 2014 also documented normal muscle strength and sensation. Private records from October 2014 showed normal sensation as well. DC 8205 includes a note that the assigned rating is dependent upon the relative degree of sensory manifestation or motor loss, and as noted above, neuritis without organic changes is to be rated at no more than moderate incomplete paralysis. The absence of any sensory impairment, motor loss or organic changes in this case is consistent with the assigned 10 percent rating for moderate incomplete paralysis. The Board acknowledges the Veteran’s reports of pain associated with his disability. He reported a history of severe “electric shock” pain during the June 2012 VA examination, and described “lightning” pain in a May 2013 statement. The May 2014 VA examiner noted symptoms of moderate constant pain (at times excruciating) and severe intermittent pain. Nevertheless, this examiner characterized the overall severity of the Veteran’s disability as “moderate.” Additional evidence shows that the pain associated with the Veteran’s disability waxes and wanes. In October 2013, he reported a current pain level of 2/10, a usual level of 4/10, with a maximum of 9/10. In October 2014, he reported a usual pain level of 6/10, but instances of 10/10 about three days a month. In April 2015, he described pain as 3/10 and that it “comes and goes.” This evidence is in line with the rating schedule’s definition of neuritis, which contemplates that constant pain, which can be excruciating at times, is consistent with no more than moderate incomplete paralysis in the absence of organic changes. Therefore, a rating higher than 10 percent is not warranted. M. TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shamil Patel, Counsel