Sanchez-Benitez v. Principi

• Decision Date: 03 August 2001
• Docket Number: SANCHEZ-BENITE,C
• Citation: 259 F.3d 1356
• Parties: (Fed. Cir. 2001) JOSE A.laimant-Appellant, v. Anthony J. Principi, Secretary of Veterans Affairs, Respondent-Appellee. 00-7099 DECIDED:
• Court: U.S. Court of Appeals — Federal Circuit

Page 1356

259 F.3d 1356 (Fed. Cir. 2001)

JOSE A. SANCHEZ-BENITEZ, Claimant-Appellant, v. Anthony J. Principi, Secretary of Veterans Affairs, Respondent-Appellee.

00-7099

United States Court of Appeals for the Federal Circuit

DECIDED: August 3, 2001

Appealed from: United States Court of Appeals for Veterans Claims Judge Frank Q. Nebeker

Linda E. Blauhut, Paralyzed Veterans of America, of Washington, DC, argued for claimant appellant. With her on the brief was Michael P. Horan.

Gregory T. Jaeger, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were David M. Cohen, Director, and Harold D. Lester, Jr., Assistant Director. Of counsel on the brief were Richard J. Hipolit, Deputy Assistant General Counsel, and Martie Adelman, Attorney, Department of Veterans Affairs, of Washington, DC.

Before MAYER, Chief Judge, LOURIE, and CLEVENGER, Circuit Judges.

Opinion for the court filed by Circuit Judge CLEVENGER. Dissenting Opinion filed by Chief Judge MAYER.

CLEVENGER, Circuit Judge.

Jose A. Sanchez-Benitez appeals from the decision by the Court of Appeals for Veterans Claims ("Veterans Court") on December 29, 1999, affirming the denial by the Board of Veterans' Appeals ("Board") of his claims for service connection for a neck disability and increased rating for a low back claim. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). We dismiss-in-part, vacate-in-part, and remand.

I

Mr. Sanchez-Benitez served in the Army for fifteen years, from July 1979 to July 1994. No preexisting conditions were noted on his entrance exam. In August 1989, he sought medical treatment for what his service medical records describe as neck pain of two months' duration with no history of trauma. A cervical spine x-ray taken at that time was normal. In January 1992, Mr. Sanchez-Benitez began complaining of low back pain after lifting heavy equipment. His medical records indicate ongoing complaints of low back pain until his discharge.

At the time of his separation from service, Mr. Sanchez-Benitez submitted a claim for service connection for a "low back injury" beginning in January 1992 and "neck pain" beginning in August 1989. The Regional Office ("RO") of the Department of Veteran Affairs ("VA") in Wichita, Kansas, granted service connection for the "lower back injury" and rated it at 10 percent disabling. Service connection for the "neck pain," however, was denied based on the lack of evidence of a pathological neck disorder. Mr. Sanchez-Benitez appealed the decision on both claims and was afforded a hearing in December 1994.

After taking testimony from Mr. Sanchez-Benitez, the hearing officer ordered a medical examination, which took place in January 1995. Although his x-rays turned up "normal" during this medical examination, Mr. Sanchez-Benitez gave an account to the medical examiner of his history of back and neck pain. He also informed the physician of an on-the-job neck injury that allegedly took place in 1983, when a large metal bumper was dropped on his neck. Consequently, the medical examiner recorded diagnoses of "lumbar muscle strain" (for the low back pain) and "[h]istory of trauma to the cervical area with residual pain" (for the neck pain). Mr. Sanchez-Benitez's low back disability rating was subsequently increased to 20 percent by the hearing officer. However, service connection for neck pain was again denied.

In June 1996, the Board determined on appeal that further development was necessary for both the neck and low back claims, and remanded the case for additional medical testing and examinations. Specifically, the Board requested that an opinion be provided "by the orthopedist regarding the likelihood of a relationship between the neck symptomatology noted in service and any current cervical spine pathology."

During the subsequent neurological examination in July 1996, Mr. Sanchez-Benitez again provided a history of episodic low back pain, and neck pain stemming from his alleged 1983 in-service injury. With regard to the neck, the examiner found tenderness at discs C5-C6, no evidence of radiculopathy, and normal "bulk, tone, [and] power" with no evidence of muscle wasting or motor weakness. As to the low back, the examiner found tenderness at discs L5-S1, some decreased sensation of the left thigh, and low back pain upon bending. The examiner noted that cervical spine x-rays performed in early July 1996 showed minimal narrowing and slight reversal of lordosis at discs C2-C3, and that lumbar spine x-rays revealed minimal degenerative changes and narrowing of the spaces at discs L4-L5 and L5-S1. The examiner ultimately diagnosed slight reversal of lordosis at C2-C3, lumbosacral sprain, and left L5 radiculopathy.

Mr. Sanchez-Benitez also underwent a spinal examination in July 1996. The orthopedic examiner noted three sets of cervical spine x-rays: (1) the January 1995 x-rays, which were normal; (2) the early July 1996 x-rays, which showed "very small and early osteophyte on the anterior aspect of C6," good disc spaces, normal "neural foramina," and "no arthritis or evidence of trauma"; and (3) the late July 1996 x-rays, which were found to be "entirely normal." The lumbar spine x-rays consistently showed osteophytes on L4 and L5. After conducting a physical examination, the orthopedic examiner determined that Mr. Sanchez-Benitez was able to carry out the duties of his job, and concluded that "[t]he physical findings and the radiologic findings do not reveal a definite or specific cause of the complaints in the neck and low back. Therefore, I am not able to correlate well the complaint of chronic pain with the clinical findings."

In August 1996, a magnetic resonance image ("MRI") was conducted on Mr. Sanchez-Benitez's cervical (neck) and lumbar (low back) spine. The MRI report showed degenerative disc disease with mild bulging in the lumbar spine, but came up negative with regard to the cervical area. The August 1996 report of VA electromyography ("EMG") and nerve conduction velocity ("NCV") studies of Mr. Sanchez-Benitez's neck and back showed no definite abnormalities.

After all the examinations were completed, the Board found that the preponderance of the evidence was against Mr. Sanchez-Benitez's claims for service connection for a neck disability and an enhancement in the rating for his low back disability. Concerning the neck disability, the Board noted the VA orthopedic examiner's statement that clinical and radiologic findings did not reveal a source or cause of the veteran's complaints of neck pain nor did the clinical findings substantiate the veteran's belief that his neck pain was secondary to lower back pain. In the absence of evidence that Mr. Sanchez-Benitez had a neck disability that was shown by medical records to be related to an in-service injury, the Board denied his claims for service connection for a neck disability. Regarding the low back disability, the Board evaluated the veteran's claim under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1998) ("DC 5293") (intevertebral disc syndrome). The Board considered the tenderness and the discomfort experienced by the veteran during his physical examination, but concluded that a rating higher than 20 percent was not warranted. In doing so, it stated that "[t]he nature of the original injury has been reviewed and the functional impairment that can be attributed to pain or weakness has been taken into account," citing 38 C.F.R. § 4.40 (addressing functional loss and limitation of motion due to pain on use) and 38 C.F.R. § 4.45 (requiring inquiry into weakened movement, excessive fatigability, incoordination, pain on movement, and limitation of motion).

Mr. Sanchez-Benitez appealed to the Veterans Court. With respect to his claim for service connection for pain arising from an in-service neck injury, the Veterans Court held that the Board "did not err, on the facts in this case, [in] denying the grant of service connection." In particular, the Veterans Court affirmed the Board's factual finding that "there was not adequate medical evidence of any present disability related to the appellant's service." The Board, as well as the Veterans Court, concluded that the 1995 reference to "history of trauma to the cervical spine area with residual pain" in Mr. Sanchez-Benitez's medical records did not establish a medical connection between the alleged in-service neck injury and Mr. Sanchez-Benitez's currently experienced pain. In short, the Board and the Veterans Court concluded that the record failed to show a connection between the in-service neck trauma incident and Mr. Sanchez-Benitez's current neck pain. Thus, the Veterans Court stated that there is a "plausible basis" in the record for affirmance of the Board's intensely fact-driven denial of service connection for the neck condition.

To be sure, the Veterans Court (unlike the Board) did state that "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Although Mr. Sanchez-Benitez understands that the Veterans Court's statement about "pain alone" is at most an alternative holding--alternative to the Veterans Court's assessment of the medical evidence as described above--he urges this court to decide his appeal solely on the issue of whether the "pain alone" statement is a correct statement of law.

Regarding the low back disability, the Veterans Court found that the Board's decision had complied with the mandates of an intervening precedential opinion issued by the VA General Counsel addressing DC 5293. The Veterans Court further found no evidence of "exceptional or unusual" circumstances that would render the schedular rating inadequate. Hence, the Veterans Court affirmed the Board's denial of both of Mr. Sanchez-Benitez's claims.

II

We have circumscribed jurisdiction to...