BVA9504159 DOCKET NO. 93-10 644 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an increased evaluation for lumbosacral strain with right lower extremity radiculopathy, currently evaluated at 20 percent. 2. Entitlement to a compensable evaluation for malaria. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from June 1991 and July 1992 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Albuquerque, New Mexico (RO), which denied the benefit sought on appeal. The veteran, who had active service from March 1965 to April 1968, appealed those decisions to the BVA, and the case was received at the Board in May 1993. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that the RO was incorrect in granting the benefits sought on appeal. The veteran maintains, in substance, that the current evaluations assigned for his back and malaria disabilities do not accurately reflect the severity of those disabilities. The veteran reports that he has received treatment for his back and that he has lost numerous hours of work due to high fevers resulting from malaria. The veteran asserts that his back disability now includes involvement of the intervertebral discs. Reference is made to the evidence of record as supporting these contentions. Therefore, a favorable determination has been requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed all of the evidence of record. Based on a review of the 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 claim for an evaluation in excess of 20 percent for lumbosacral strain with right lower extremity radiculopathy and for a compensable evaluation for malaria. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's back disability does not manifest listing of the whole spine to the opposite side, a positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space. 3. The veteran's malaria has not been shown to be active or productive of moderate disability. CONCLUSIONS OF LAW 1. The schedular criteria for an evaluation in excess of 20 percent for lumbosacral strain with right lower extremity radiculopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5295 (1994). 2. The schedular criteria for a compensable evaluation for malaria have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.88, 4.88a, Diagnostic Code 6304 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). That is, the Board finds that the veteran has presented claims which are not implausible when his contentions and the evidence of record are viewed in the light most favorable to those claims. The Board is also satisfied that all relevant facts have been properly and sufficiently developed. I. Lumbosacral Strain with Right Lower Extremity Radiculopathy The veteran was granted service connection for a lumbosacral strain by a February 1970 rating decision which noted that "the veteran had a back strain and there is a clear diagnosis of low back strain in service with trouble over a considerable period of time." Based on the findings of a VA examination performed following service, a 10 percent evaluation was assigned for the veteran's back disability. During the course of this appeal, a July 1992 rating decision increased the evaluation for the veteran's back disability from 10 percent to 20 percent and recharacterized the veteran's disability as a lumbosacral strain with right lower extremity radiculopathy. Under 38 C.F.R. § 4.71a, Diagnostic Code 5295, the schedular criteria for the next higher 40 percent evaluation contemplate findings reflective of a severe lumbosacral strain "with listing of whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion." Also, a 40 percent evaluation could be assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5293, with findings of a severe intervertebral disc syndrome with "recurring attacks, with intermittent relief" or of severe limitation of lumbar spine motion under 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1994). The evidence for consideration in assessing the severity of the veteran's back disability includes VA and private medical records, a report of a private examination performed by Vaughn R. Ditto, D.C., and reports of two VA examinations. The private medical records contain no significant evidence pertaining to the veteran's back disability, and VA outpatient treatment records demonstrate that the veteran has been seen for treatment for complaints associated with his service-connected disability. With respect to the examination performed by Dr. Ditto in August 1992, the Board notes that he provided an opinion that the veteran fell into the category of a 40 percent disability rating under Diagnostic Code 5295. However, with the exception of the finding of degenerative joint disease of the lumbar spine, the examination report does not contain clinical findings contemplated by the schedular criteria for a 40 percent evaluation under Diagnostic Code 5295. In other words, the report of the examination performed by Dr. Ditto contains insufficient clinical findings to support the opinion that the veteran is entitled to a 40 percent evaluation under Diagnostic Code 5295. A VA orthopedic examination performed in March 1992 discloses that the veteran reported that since service he has experienced episodic low back pain. Physical examination was apparently unremarkable with the exception of discomfort produced in the low back on straight leg raising at approximately 65 degrees. The diagnosis following the examination was "radiculopathy, S1 vertebra, S1 nerve root right right lower extremity." The veteran also underwent a neurological examination in March 1992 which disclosed that the veteran had good motor strength bilaterally, and some sensory loss in the lateral right leg and lateral right foot into the last two toes. Straight leg raising produced no pain. The veteran was noted to have a full range of motion of the back with some paralumbar tenderness. The examiner's impression following the examination was that there was evidence of a probable lumbosacral myofascial syndrome with a possible right S1 nerve root lesion based on the sensory findings. The examiner also offered an opinion that he assessed the current amount of pain in the mild to moderate range. The examiners who evaluated the veteran in March 1992 reevaluated the veteran's back disability in October 1992. The orthopedic evaluation indicated that there was some change from the previous evaluation, and a comparison of the two examination reports indicates that forward flexion of the lumbar spine was decreased to 60 degrees from the 90 degrees reported in March. The examiner indicated that following forward flexion there was not a smooth recovery as it had been on the previous examination and that there was a slight list to the left on recovery. Lateral bending was decreased 5 degrees from that previously reported, rotation 10 degrees and extension decreased by 10 to 20 degrees. Motions apparently produced some discomfort. Straight leg raising was positive at 65 degrees on the left, but caused no severe pain, although there was a pulling sensation when this maneuver was performed. Straight leg raising on the left was performed to 70 degrees without difficulty. Palpation of the spine produced discomfort at the lumbosacral junction. The impression following the examination was degenerative joint disease of the lumbosacral spine with S1 radiculopathy on the right by history. The neurological evaluation, as well as the orthopedic evaluation, both indicated that a computerized tomography scan disclosed the presence of a mild disc bulge at L5 - S1 and at the L4-5 level with no obvious nerve root impingement. The examiner recorded that, "As far as I can tell there has been no increase in the speed of worsening and it is the usual amount he has had for the past 10 to 15 years. The patient states part of this increase in pain seems to be related to increasing stress." The veteran reported that he experienced continual pain, and experienced severe pain 2 to 3 times a week, and that he experienced daily muscle spasms. Following the examination, the examiner commented that, "I really see very little change other than a more extensive numbness in a nonphysiologic distribution at this time and more obviously an increase in his anxiety level. I continue to feel that he has a mild to moderate lumbosacral myofascial syndrome .... There may be some mild worsening since his last visit but, as noted, I find the worsening of his anxiety somewhat more noticeable than that of his back problem." Based on this evidence, the Board is of the opinion that the veteran's overall disability picture at this time is not reflective of severe lumbosacral strain, severe intervertebral disc syndrome or severe limitation of motion. The Board finds that the currently assigned evaluation most nearly approximates the veteran's overall disability picture and that the schedular criteria for the next higher evaluation under Diagnostic Codes 5295, 5293 or 5292 have not been met. 38 C.F.R. § 4.7 (1994). Beyond the private examination which offered an opinion that the veteran had a severe disability, but failed to provide sufficient objective clinical findings to support that opinion, there is no medical evidence of record which relates that the veteran's disability is severe. Accordingly, an increased evaluation for the veteran's lumbosacral strain is not warranted. II. Malaria Service connection for malaria was granted by a February 1970 rating decision which noted that the veteran "had malaria in service but not within the year before discharge. No malaria is currently shown." A noncompensable evaluation was assigned for that disability which has remained in effect since it was assigned. None of the medical evidence associated with the claims file subsequent to the grant of service connection for malaria discloses that the veteran has had a recurrence of malaria or any residual disability attributable to the malaria treated during service. While the veteran has related that he has lost numerous hours of work due to high fevers which were a result of malaria, a review of the medical evidence, particularly the private medical records, discloses that fevers the veteran has received treatment for were all attributable to other diagnosed disorders such as pneumonia or viral gastroenteritis. In fact, in March 1983, the veteran was hospitalized for complaint of left-sided chest pain and fever, at which time his treating physicians were made aware of the veteran's past history of malaria while in Vietnam and apparently evaluated him for recurrence of malaria. However, a malarial smear was negative and the assessment following the hospitalization failed to attribute the fever to a recurrence of malaria. Under 38 C.F.R. § 4.88a (1994), a 10 percent evaluation for malaria is for assignment for recently active malaria with one relapse in the past year or for an old case which is productive of a moderate disability. Since none of the medical evidence for consideration discloses the presence of active malaria, a recurrence of malaria, or any residual disability attributable to malaria, the Board finds and concludes that the schedular criteria for a higher evaluation for malaria have not been met. Accordingly, an increased evaluation for the veteran's malaria is not warranted. ORDER An evaluation in excess of 20 percent for lumbosacral strain with right lower extremity radiculopathy is denied. A compensable evaluation for malaria is denied. WARREN W. RICE, JR. 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.