BVA9502213 DOCKET NO. 92-01 636 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to an increased rating for chronic lumbosacral myositis, intervertebral disc syndrome T12-L1 and L1-L2, and dorsal scoliosis, postural, currently evaluated as 40 percent disabling. ATTORNEY FOR THE BOARD J. Sherman, Counsel INTRODUCTION The veteran had active military service from July 1971 to July 1973. This appeal arose from an August 1991 rating action of the San Juan, Puerto Rico, regional office (RO) pursuant to which the veteran received a 20 percent service connected disability evaluation for lumbar paravertebral myositis, chronic, and dorsal scoliosis, postural, under diagnostic code 5292-5021. The case was remanded by the Board of Veterans' Appeals (Board) in August 1992 for consideration by the RO of the issue of entitlement to a total disability rating based on individual unemployability, which claim was initially raised by the veteran when he filed his substantive appeal. Individual unemployability was denied by rating action of February 1993. The veteran was notified of the rating action and provided a Supplemental Statement of the Case (SSOC) in March 1993. He did not thereafter file a substantive appeal with respect to the issue of individual unemployability, nor did he file a substantive appeal with respect to that issue when the RO issued a further SSOC in August 1994 following the second remand by the Board for further development on the issue of the back disability. That issue is not, therefore, before the Board. It is noted, however, that the RO notified the veteran that he had 60 days from the date of the Supplemental Statement of the Case (SSOC) to perfect an appeal with respect to any issue not included in the veteran's substantive appeal. That instruction to the veteran mis-states the applicable regulation, which provides that the claimant has 60 days from the date of mailing the SSOC to file a substantive appeal with respect to issues that were not included in the original Statement of the Case. 38 C.F.R. § 20.302(c) (1993). Since the veteran first made a claim of individual unemployability on his substantive appeal, that issue was not included in the original Statement of the Case. However, since the RO notified the veteran that he had 60 days from the SSOC to perfect an appeal with respect to issues that were not included in his substantive appeal, the veteran may not clearly understand that he must file a substantive appeal with respect to the RO's individual unemployability determination if he disagrees with that determination. The issue of entitlement to an increased rating that is before the Board is not inextricably intertwined with the issue of unemployability. Holland v. Brown, 6 Vet.App. 443 (1994). The RO should notify the veteran that he has the right to appeal the rating regarding individual unemployability and afford him the opportunity to do so. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he is entitled to a disability rating in excess of 40 percent for his back disability. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant 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 veteran's claim for an increased rating for chronic lumbosacral myositis, intervertebral disc syndrome T12-L1 and L1-L2, and dorsal scoliosis. FINDINGS OF FACT 1. All evidence necessary to an equitable disposition of the veteran's claim was obtained by the RO. 2. The veteran's back disability is manifested by symptomatology productive of severe limitation of motion of the lumbar spine without ankylosis; not more than severe intervertebral disc syndrome has been demonstrated. 3. The back disability does not represent an exceptional or unusual disability picture. CONCLUSION OF LAW 1. The veteran has stated a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993). 2. The schedular criteria for a disability evaluation in excess of 40 percent for chronic lumbosacral myositis, intervertebral disc syndrome T12-L1 and L1-L2, and dorsal scoliosis have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 3.321(b)(1) and Part 4, to include §§ 4.1, 4.2, 4.7, 4.40, 4.71, Diagnostic Codes 5292 and 5293 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant has stated a well-grounded claim, that is, one that is plausible. 38 U.S.C.A. § 5107 (a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). The appellant having satisfied his initial burden, the Department has a duty to assist him in the development of facts pertaining to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993). The United States Court of Veterans Appeals (Court) has held that the duty to assist includes obtaining available records which are relevant to the claimant's appeal, and that this duty is neither optional nor discretionary. Littke v. Derwinski, 1 Vet.App. 90 (1990). The undersigned is satisfied that all relevant evidence has been properly developed and that no further assistance is necessary. Review of the history of the appellant's back disability shows that, in May 1971, on his enlistment medical examination, postural scoliosis was noted. X-ray films showed no scoliosis and the curvature was postural only. Service medical records reflect that the veteran hurt his lower back in October 1971 throwing a man over his shoulder and was hospitalized. The diagnosis was lumbosacral strain, acute, with spasm, left sacrospinalis group. The records reflect that the veteran continued to experience non-radiating lumbar pain for approximately one month. An x-ray on the date of the incident was negative, as was one taken one month later. In December 1972, the veteran was seen again complaining of back pain in the right paraspinous muscles. On examination, no spasm was palpable, but the back was tender to deep palpation. The impression recorded was muscle strain. In January 1973, the veteran again complained of lower back pain, and an impression of lower lumbar sprain was recorded. In March 1973, pain in the lumbo-sacral region bilaterally was noted. The impression recorded was subjective low back pain with no objective findings. In June 1973, it was noted that the veteran hurt his back in the motor pool the previous day. An x-ray was negative, and the impression was muscle strain. An examination for separation from service in May 1973 noted mild right paravertebral muscle spasm and chronic low back pain. In January 1991, the veteran filed a claim for service connection, listing his back injury. He submitted outpatient treatment records reflecting treatment primarily for other conditions, but on which chronic low back pain by history was noted in December 1990. It was noted that the veteran had no symptoms at the time of the examination. The RO accorded the veteran an examination in June 1991. The veteran exhibited erect posture and a slow, guarded gait. He had mild to moderate dorso-lateral deviation of the spine. There was straightening of lumbar lordosis. Pain to pressure over the lower dorsal and lumbar paravertebral musculature with evidence of spasm, moderate to severe, was noted. There was painful and limited range of motion in the back, with flexion limited to 60 degrees, extension to zero degrees, lateral flexion to 20 degrees, and left and right rotation to 40 degrees. Straight leg raising elicited back pain at 70 degrees to 160 degrees bilaterally. The lower extremities showed no weakness or atrophy. There was no sign of radiculopathy. Neurologic review was normal. The diagnosis was lumbar paravertebral myositis, chronic, and dorsal scoliosis, postural. As a result of this examination and service medical records, the veteran received 20 percent service connected disability evaluation for his back disability. He appealed that decision, alleging that his back condition had worsened. Outpatient treatment records for December 1990 through August 1991 were obtained, but they contained no record of treatment of the veteran's back. Outpatient treatment records received contain references to chronic low back pain by history only. A VA orthopedic examination in May 1994 noted that the veteran complained of low back pain with radiation to the right leg associated with numbness. The veteran denied weakness and urinary or fecal incontinence. X-rays taken in June 1991 showed anterior spurring at L1-L2 and L4-L5 with preserved disc space. The 1994 examination findings are reported as follows: (1) postural abnormality, dorsal scoliosis; (2) fixed deformity, dorsal scoliosis; (3) tenderness to palpation of lumbosacral paravertebral muscles; (4) range of motion, lumbosacral spine: forward flexion, 15 degrees; backward extension, 22 degrees; left lateral flexion, 40 degrees; right lateral flexion, 45 degrees; rotation to left and to right 50 degrees; bilateral Babinski sign and diminished left patellar reflex + 1. The doctor noted that 15 degrees forward flexion was not accurate as the veteran involuntarily bent his knees due to weakness; (5) objective evidence of pain on motion on forward flexion, backward extension, and left lateral flexion of lumbosacral spine only; (6) evidence of neurological involvement manifested by diminished left patellar reflex and bilateral Babinski sign. The diagnoses were dorsal scoliosis; chronic lumbosacral paravertebral myositis; T12-L1 and L1-L2 discogenic disease by MRI; and intervertebral disc syndrome T12-L1 and L1-L2. In August 1994, a rating decision was issued pursuant to which the veteran was assigned a disability evaluation for his back condition of 40 percent under diagnostic codes 5292-5293. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 requires that, where there is a question as to which of two disability ratings shall be applied, the higher evaluation is to be assigned if the disability picture more closely approximates the criteria for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.40 requires consideration of functional disability due to pain. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Moreover, VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. When severe limitation of motion is demonstrated in the lumbar spine, a 40 percent evaluation may be assigned. 38 C.F.R. § 4.71, Code 5292 (1993). There is no higher evaluation assignable under diagnostic code 5292. A 40 percent rating is assignable for favorable ankylosis of the lumbar spine. A 50 percent rating is assignable for unfavorable ankylosis of the lumbar spine. 38 C.F.R. § 4.71, Code 5289 (1993). A 40 percent evaluation is warranted for severe intervertebral disc syndrome with recurring attacks with intermittent relief. A 60 percent evaluation requires pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy (i.e., with characteristic pain and demonstrable muscle spasm and an absent ankle jerk or other neurological findings appropriate to the site of the diseased disc) and little intermittent relief. 38 C.F.R. § 4.71, Code 5293 (1993). This veteran has a diagnosis of intervertebral disc syndrome and exhibited limited range of motion of the lumbosacral spine on his May 1994 VA examination. He also exhibited pain on motion, and there was some evidence of neurological involvement manifested by the bilateral Babinski sign and diminished left patellar reflex. Nonetheless, these symptoms are indicative of not more than severe intervertebral disc syndrome. We note there is no evidence that he has little intermittent relief from the intervertebral disc syndrome. The veteran's medical records from 1990 to 1993 reveal no treatment for his back condition. When seen in December l990, he mentioned a history of back symptoms off and on. The veteran's back disability therefore more closely approximates the criteria for a 40 percent disability evaluation under diagnostic code 5292-5293. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability may be approved, provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1993). In this case, there is no evidence that the veteran's service-connected back condition has in any way interfered with employment, or resulted in frequent hospitalizations. In fact, extensive social work notes submitted in connection with the veteran's claim note poor vocational and occupational performance and suggest exploring other vocational opportunities but do not relate the poor occupational performance to the veteran's back problem. Rather, there is considerable mention of discussions with the veteran about his alcohol and tobacco dependence. The initial social work assessment in January 1991 indicated that the veteran had been unemployed for about a year and that he had usually worked as a heavy driver, but that he was unable to work because of chronic pain, ulcers, and heart disease. The veteran's medical treatment records from 1990 to 1993 reveal no periods of hospitalization or treatment for his back disability, but many medical visits for his non- service connected duodenal ulcer disease. There is no earning capacity impairment shown as due exclusively to the service- connected disability, nor have frequent hospitalizations for that disability been asserted or demonstrated. In short, the rating assigned for the service-connected disability at issue compensates the veteran for the loss in earning capacity attributable solely to that disability. ORDER Entitlement to an increased rating for chronic lumbosacral myositis, intervertebral disc syndrome T12-L1 and L1-L2, and dorsal scoliosis, currently evaluated as 40 percent disabling, is denied. I. S. SHERMAN 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.