BVA9507553 DOCKET NO. 93-04 348 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to an increased rating for a back condition, currently rated as 40 percent disabling. 2. Entitlement to a total disability rating for compensation on the basis of individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. M. Lynch, Associate Counsel INTRODUCTION The veteran's active duty extended from April 1969 to April 1971. He had active duty for training in August 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) Togus, Maine which continued a 40 percent evaluation for a back condition. The Board notes that the veteran was denied entitlement to a total disability rating for compensation on the basis of individual unemployability by a rating decision in November 1992. Although the veteran has not initiated an appeal with respect to this claim, the Board assumes jurisdiction over this matter as the appeal on the issue of entitlement to an increased disability rating would include any consideration of a total disability rating. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO committed error in denying his claim of entitlement to an increased disability rating for his back condition. He asserts that his service- connected disability is more severely disabling than currently evaluated. Specifically, he claims that he experiences constant low back pain with radiation into the left posterior thigh to the level of the knee which worsens with excessive sitting, standing, walking or lifting. He also maintains that he experiences right leg symptoms characterized by coldness, blueness and tingling. Consequently, he contends that he is entitled to an increased rating. 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 supports the veteran's claim of entitlement to an increased rating of 60 percent, and not in excess thereof, for a back condition. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's service-connected back condition is manifested by complaints of constant low back pain with radiation into the left posterior thigh to the level of the knee which worsens with excessive sitting, standing, walking or lifting; and right leg symptoms characterized by coldness, blueness and tingling. 3. Objective evidence with respect to the veteran's back condition consists of severely decreased range of motion of the lumbar spine, absent ankle jerk on the right, demonstrable muscle spasm, a questionable slight decrease in sensation along the posterior lateral aspect of the right thigh, and probable mild right sided reflex sympathetic dystrophy. 4. The veteran's service-connected back disorder approximates, but does not exceed, a pronounced disability. 5. The veteran's service connected disability does not present an exceptional or unusual disability picture rendering impracticable the application of the regular schedular standards that would have warranted referral of the case to the Director of the Compensation and Pension Service. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 60 percent, but not in excess thereof, for a back condition have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 5293 (1994). 2. Failure of the RO to consider or document its consideration of an extraschedular rating and the failure to refer the case to the Director of the Compensation and Pension Service is no more than harmless error. 38 C.F.R. § 3.321(b)(1) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is to say that he has presented a claim which is plausible. VA has assisted the veteran as much as it can in the development of his claim. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such injuries in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1994). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, (1994); See Peyton v. Derwinski, 1 Vet.App. 282 (1991). The veteran's claims folder contains his service medical records, VA medical records, private medical records and VA examination reports. While on active duty for training in August 1978, the veteran injured his back while lifting a bridge panel. In January 1980, he was granted service connection for a protruding disc in the lumbosacral spine and assigned a 20 percent disability rating, effective August 1978. He also underwent excision of an extruded disc fragment at L-5/S-1, right in January 1980. The 20 percent rating remained in effect until July 1991, at which time it was increased to 40 percent on the basis of the findings of a May 1991 VA examination. When intervertebral disc syndrome is severe with recurring attacks and intermittent relief, a 40 percent evaluation is assigned. 38 C.F.R. Part 4, Diagnostic Code 5293 (1994). A 60 percent rating is warranted when the evidence demonstrates a pronounced condition, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. 38 C.F.R. Part 4, Diagnostic Code 5293 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). A review of the veteran's recent medical treatment records for his back condition show the severity of a disability required for an evaluation of 60 percent, but not higher, for a low back condition pursuant to Code 5293. In support of his claim for an increased disability evaluation, the veteran provided VA treatment notes dated from June to November 1991. In June 1991, he was seen complaining of chronic low back pain. He reported that he wore a back brace and took medication without relief of his symptoms. He also reported continued pain on examination in July 1991. Significantly, the examiner noted an absent ankle jerk on the right. In November 1991, the veteran stated that he experienced pain any time he moved, as well as radiation into his left leg. Pertinent objective findings included increased back pain with movement, muscle spasm in his back, a decreased Babinski sign bilaterally, straight leg raising to 10 degrees with severe back pain and an inability to perform heel or toe gait. At his most recent VA examination in January 1992, the veteran complained of constant bilateral low back pain with constant waxing and waning, and radiation into the left posterior thigh to the level of the knee. He stated that his back and leg pain worsened with excessive sitting, standing, walking or lifting. Inspection of the veteran's low back revealed a five inch vertically oriented, well healed, non-tender scar in the mid to low lumbar region. The examiner reported that he walked with a strong limp favoring the left leg and that he stood with his knees slightly flexed and his trunk forward-flexed to approximately 10 degrees. It was noted that his pelvis was obviously tilted down on the left side. The examiner stated that there was no question that the veteran was quite tender to touch over the left sacroiliac joint. Range of motion testing showed flexion to 30 degrees at best; extension to 10 degrees; side bending to 20 degrees bilaterally; and 30 degrees rotation bilaterally. Significantly, the examiner reported that all ranges of motion were accomplished with low back pain, especially along the left upper lumbar spine paraspinal musculature as well as the left sacroiliac joint. Deep tendon reflexes were +1 at the knees, absent along the right Achilles, and +1 along the left Achilles. Straight leg raising was positive on the left side while sitting for low back pain. However, straight leg raising was positive on both the left and right side for low back pain while supine with the legs elevated to 30 degrees. Although the examiner noted no radicular symptomatology with the veteran sitting or supine, sensory examination did show a questionable slight decrease in sensation along the posterior lateral aspect of the right thigh. Motor examination showed the paraspinal muscles of the back to be well-developed. However, leg length examination showed the left leg to be three quarters of an inch shorter than the right leg, which the examiner believed to be significant. The veteran was diagnosed as having intervertebral disc syndrome and superimposed low back pain secondary to mechanical type dysfunction and strain as well as postural imbalance. The examiner stated that these diagnoses would certainly be aggravated by the significant stress that the veteran was under at the time. He also expressed concern that the veteran may very well be addicted to his pain medication. On the basis of the foregoing evidence, the RO confirmed the 40 percent rating in February 1992. The veteran subsequently submitted a report of examination from Michael W. Mainen, M.D. dated in March 1992. A review of this report reveals that the veteran complained of a nearly constant level of low back pain punctuated periodically by sharp more intense pains. He described symptoms similar to those noted above, as well as a burning in his left leg with prolonged walking. He also complained of right leg symptoms characterized by coldness, blueness and a tingling paresthesia which appeared each morning on arising and lasted for approximately two to three hours before resolving. On examination, the examiner reported that the veteran's gait was very distorted and that he limped favoring his left leg. Although there was no weakness of foot dorsiflexors or plantar flexors, he had great difficulty heel walking or toe walking because both produced pain in his back. At rest, the veteran stood with his knees partially flexed and his shoulders forward of the hips. Significantly, the examiner noted a very obvious paraspinal muscle spasm in the lumbar area which did not remit with ipsilateral bending or hyperextension. There was no tenderness to palpation of the spinous processes, sacroiliac joints, paraspinal muscles, greater trochanteric bursae or sciatic notches. The examiner described mobility in the thoracolumbar spine as poor with flexion not more than 30 degrees, hyperextension to 10 degrees and lateral bending to approximately 20 degrees bilaterally. Rotation was reasonably full bilaterally. The veteran did not tolerate straight leg raising beyond 45 degrees in the sitting or supine position due to back pain. However, there was no radicular leg pain with straight leg raising. Deep tendon reflexes were brisk and symmetrical with the exception of an absent ankle jerk on the right. Sensation was intact to light touch and pinwheel. There were no signs of thigh or calf atrophy and manual strength testing was normal. It was noted that the veteran's right leg had a slightly dusky hue to it from the knee distally when he was seated on the edge of the table with his feet dependent. He was non-tender to firm palpation of the feet and legs. The examiner diagnosed history of right sided L5-S1 disc herniation, 1978; status post L5-S1 laminectomy and diskectomy on the right; chronic pain syndrome with marked muscular deconditioning and severe pain protectiveness; probable epidural fibrosis, severity undetermined; possible but not likely recurrent disc herniation at L5-S1 or degenerative disc herniation at a more proximal level; and probable mild right sided reflex sympathetic dystrophy. The veteran also submitted a computerized tomography (CT) scan of the his lumbar spine dated in September 1991 which showed probable herniated discs at L4-5 and L5-S1 and degenerative changes in the facet joints causing narrowing of the intervertebral foramina at L5-S1. At his personal hearing in June 1992, the veteran testified with respect to his symptoms as noted above, including coldness in his legs which he attributed to poor circulation, a sharp pain from his lower back radiating into his thigh, and a burning sensation in his left leg. He reported that he had been seeing a psychologist since 1985 in order to cope with his condition. After review of the claims folder, and given the rather significant symptomatology associated with the veteran's low back disorder, the Board is of the opinion that the records demonstrate a persistent neurological impairment in accord with a pronounced level of disability, including evidence of considerable pain and symptoms compatible with neuropathy of the lower extremity nerves. Significantly, muscle spasm was demonstrated at both November 1991 and March 1992 medical examinations. Further, the ankle jerk was absent at the right as shown by July 1991 and January and March 1992 examinations. Other neurological findings appropriate to the site of the diseased disc, including a questionable slight decrease in sensation along the posterior lateral aspect of the right thigh and probable mild right sided reflex sympathetic dystrophy have also been demonstrated, with little intermittent relief. Therefore, the Board finds that the veteran's disability picture more closely approximates a pronounced disability required for a 60 percent evaluation. 38 C.F.R. Part 4, Diagnostic Code 5293 (1994). A 60 percent rating is the maximum rating assignable under 38 C.F.R. Part 4, Diagnostic Code 5293 (1994). The Board has considered assigning an extraschedular rating. However, the record in this case shows a disability well within the parameters of the criteria for a 60 percent rating. The disability does not warrant a higher rating under any applicable regulation or rating code. This case does not present 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)(1), 4.16 (1994). Any failure of the RO to refer the case to the Director of the Compensation and Pension Service for extraschedular consideration was harmless error. ORDER An increased rating for a back condition is granted, as indicated above, subject to the laws and regulations governing the payment of monetary awards. REMAND The issue of entitlement to a total disability rating for compensation purposes, based on the issue of individual unemployability, is remanded so that the RO can consider the claim in light of the grant of the 60 percent disability rating for the veteran's back condition. Prior to adjudicating this issue, the RO should take the following actions: 1. The RO should contact the veteran and request that he submit a report with respect to his education and work history. 2. A social and industrial survey should also be conducted. It should be ascertained if the veteran is working. Family members, former coworkers, members of the community and the veteran should be interviewed. The purpose of the survey is to obtain information upon which to assess the impact of the service connected disabilities on the veteran's ability to secure or follow a substantially gainful occupation. 3. After the foregoing has been completed, the veteran should be accorded special examinations to determine the extent of the service-connected back condition and psychophysiological reaction. The claims folder and a copy of this remand must be made available to and reviewed by the examiners prior to the examinations. All necessary tests should be conducted and the examiners should review the results of the testing prior to completion of their respective reports. The report of examination should contain a detailed account of all manifestations of back and pyschiatric pathology found to be present. The examiners should assess the impact of the service- connected disabilities on the veteran's ability to obtain and maintain gainful employment. With respect to the psychiatric examination, the examiner should assign a numerical code under the Global Assessment of Functioning Scale (GAF). It is imperative that the physician includes a definition of the numerical code assigned. Thurber v. Brown, 5 Vet.App. 119 (1993). The diagnosis should be in accordance with DSM-III-R. The reports of examination should contain complete rationale for all conclusions reached. 4. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the requested examination does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. 5. Following the above development, the RO should review the evidence and determine whether the veteran's claim for a total disability rating may be granted pursuant to 38 C.F.R. § 4.16(a) (1994). Once the foregoing has been accomplished, and if the benefits are not granted to the satisfaction of the veteran, both the veteran and his representative should be furnished a supplemental statement of the case covering all the pertinent evidence, law and regulatory criteria. They should be afforded a reasonable period of time in which to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran needs to take no action until so informed. The purpose of this REMAND is assist the veteran and to obtain clarifying information. JAN DONSBACH 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. The remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994). 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.