BVA9505202 DOCKET NO. 92-53 846 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased rating for degenerative disc disease of the lumbosacral spine, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for residuals of bilateral bunionectomies, currently evaluated as 10 percent disabling. ATTORNEY FOR THE BOARD M. J. Bohanan, Associate Counsel INTRODUCTION The appellant served on active duty from April 1965 to September 1990, with several years of active duty prior to those dates indicated. This appeal arises from an April 1991, Department of Veterans Affairs Regional Office, Seattle, Washington (VARO) rating decision which granted the appellant service connection for arthritic changes of the low back and residuals of bilateral bunionectomies, each evaluated as 10 percent disabling. The Board of Veterans' Appeals remanded the appellant's claim in an August 1992 decision for further development. Additional development was completed and, in a October 1994 decision, VARO denied the appellant's claim for increased ratings for the above- mentioned disabilities. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that his service-connected degenerative disc disease of the lumbosacral spine and residuals of bilateral bunionectomies are of such severity as to warrant increased disability ratings. 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. For the following reasons and bases, it is the decision of the Board that the evidence supports increased ratings for the appellant's service-connected degenerative disc disease of the lumbosacral spine and residuals of bilateral bunionectomies. FINDINGS OF FACT 1. Current manifestations of the appellant's service-connected degenerative disc disease of the lumbosacral spine, include some limitation of motion with pain and neurological deficits. 2. Current manifestations of the appellant's service-connected residuals of bilateral bunionectomies, include limitation of motion and pain on weight bearing. CONCLUSIONS OF LAW 1. The manifestations of the appellant's service-connected degenerative disc disease of the lumbosacral spine are no more than 20 percent disabling. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.71a, Diagnostic Code 5293 (1994). 2. The manifestations of the appellant's service-connected residuals of bilateral bunionectomies are no more than 20 percent disabling. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5284 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has satisfied his statutory burden of submitting evidence which is sufficient to justify a belief that his claim is "well-grounded." 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). It is also clear that the appellant's claim has been adequately developed for appellate review purposes by VARO, and the Board may therefore proceed to disposition of the matter. In evaluating the appellant's request for increased ratings, the Board considers all of the medical evidence of record, including the appellant's relevant medical history. Peyton v. Derwinski, 1 Vet.App. 282 at 287 (1991). Disability evaluations are determined by the application of a schedule of ratings based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 (1994) 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 (1994) requires that medical reports be interpreted in light of the whole recorded history. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The criteria for degenerative arthritis calls for a 10 percent disability rating for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups; a 20 percent disability rating is warranted for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5010, 5003 (1993). Slight limitation of motion of the cervical spine will be rated 10 percent disabling, and moderate limitation of motion will be rated 20 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5290 (1994). It is noted that the ratings based on x-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a Diagnostic Code 5003 (1994). Slight limitation of motion of the lumbar spine calls for a 0 percent disability evaluation; a 20 percent disability evaluation is assigned for moderate limitation of motion; and a 40 percent disability evaluation is for application for severe limitation of motion. 38 C.F.R. § 4.71a Diagnostic Code 5292 (1994) The schedular criteria for lumbosacral strain call for a 10 percent disability rating for characteristic pain on motion; a 20 percent disability rating for muscle spasm on extreme forward bending, with loss of lateral spine motion, unilateral, in a standing position; and a 40 percent disability rating for severe lumbosacral strain with a listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes or narrowing with irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5295 (1994). The schedular criteria for intervertebral disc syndrome call for a 0 percent disability evaluation for postoperative, cured symptomatology; a 10 percent disability evaluation is warranted for mild symptomatology; a 20 percent disability evaluation is warranted for moderate, recurring attacks; a 40 percent disability evaluation is warranted for severe recurring attacks, with intermittent relief; and a 60 percent disability evaluation is warranted for pronounced symptoms, compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to site of diseased disc and little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1994). The schedular criteria for foot injuries provides for a 10 percent disability rating for moderate injury; a 20 percent disability rating is warranted for moderately severe foot injury; a 30 percent disability rating is warranted for severe foot injury; and a 40 percent disability rating is warranted for actual loss of use of the foot. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5284 (1994). Terms, such as "slight", "moderate" and "severe", are not defined in VA regulations. Rather than applying an inflexible formula, it is incumbent upon the Board to arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6 (1994). Terminology such as "moderate" and "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1994). 1. Entitlement to an increased rating for service-connected degenerative disc disease of the lumbosacral spine, currently evaluated as 10 percent disabling. The appellant's March 1960 service pre-commission examination reported some scoliosis of the thoracic vertebral bodies, with the apex in the mid-thoracic region to the right. Service medical treatment records reported that the appellant injured his back during service. An April 1974 medical treatment entry reported that the examiner observed tenderness over the lumbar spine, muscle spasms and a limited range of motion. January 1975 x-rays revealed scoliosis convex to the right with no abnormalities of the sacroiliac joints or structure observed. A November 1977 treatment entry reported a history of lower back pain. Physical examination revealed paraspinal muscle spasm. However, x-rays were normal. The appellant continued to complain of lower back pain during service and was referred to an orthopedic back clinic in January 1981. The examiner observed moderate, right paraspinal muscle spasm at L3-L5 with slight tenderness and moderately decreased range of motion of the lower spine. The examiner diagnosed right sciatic (L5-S1), mild lumbar scoliosis and lower back pain syndrome. A May 1986 military medical treatment entry reported that the appellant complained of lower back pain and right radicular symptoms. A CT scan revealed L4 and 5, right facet hypertrophy, with a strong suggestion of herniated nucleus pulposus at L4, 5. A June 1986 military hospital summary from the Bethesda Naval Hospital reported that the appellant received a lumbar myelogram. A VA examination was conducted in February 1990. The appellant complained of lower back pain since 1968. The examiner observed limitation of the rotation of the lumbar spine to the left and right with normal flexion and extension. He diagnosed chronic lumbosacral strain with recurrent symptoms, facet and degenerative changes. A May 1991 Group Health radiology report regarding the appellant's lumbar spine x-rays reported complete degenerative loss of the lumbosacral disc space, with an underlying scoliosis apex to the right. There was a small hypertrophic ossicle projecting lateral to the disc margin at L2-3 of no particular clinical significance. The sacroiliac joints were intact with no fractures. A diagnosis of underlying scoliosis, with complete degenerative disc loss of the lumbosacral disc space was reported. A June 1991 letter from the appellant's private physician, Carl F. Brunjes, M.D., was submitted. Dr. Brunjes reported that the appellant claimed to be relatively free of back pain for 7 years. He "recalled" having right leg discomfort but complained of numbness and tingling in the anterior aspect of his left leg. X- rays showed moderate degenerative disease at L5-S1 with anterior spurring, loss of intervertebral disc space height and increased subchondral sclerosis. Dr. Brunjes claimed that the appellant moved about the examining room "quite easily." The appellant's straight leg raising was not impaired; his supine straight leg raising with confirmatory testing showed only mild hamstring tightness on the left. His motor power was entirely normal. He had slight hypesthesia of L3 dermatome in the anterior thigh and very slight decrease in the left ankle jerk. Medical treatment records from Dr. Brunjes dated from June 1991 to July 1991 reported that the appellant had a very definite lateral bulge at L2-3 which caused displacement of the left L2 nerve root. There was a lesser bulge at the disc space below, without apparent nerve root entrapment. Private medical treatment records from Group Health dated from May 1991 to March 1992 reported that the appellant was referred to an orthopedist for complaints of back pain in May 1991. An August 1991 treatment entry reported that the appellant complained of a back problem. However, his "back was normal today." The examiner's impression was a healthy male with low back pain "under control at this time." A VA examination was conducted in July 1993. Regarding his back, the appellant complained that he could not sit or remain in the same position for any length of time without getting stiff and aching in the low back. He claimed that he got "acute flair ups" about three times a year, but they only lasted 2-4 days and were "completely relieved" with bed rest. He claimed that his back symptoms were reasonably well under control at the present time. He had 75 degrees forward flexion, extension to 20 degrees, lateral flexion to 23 degrees bilaterally, and rotation to 33 degrees bilaterally. The examiner noted minimal lumboscoliosis convex to the right side with no apparent muscle spasm at the present time. The appellant had straight leg raising to 90 degrees on the left without pain and 80 degrees on the right with some discomfort in the right buttock and popliteal areas of the legs. Knee jerks and ankle jerks were equal and active. There was some diminution to pinprick sensation on the lateral aspect of the right leg. The examiner diagnosed chronic recurrent low back pain due to degenerative disk disease of the lumbosacral space. After careful scrutiny of all of the medical records and evidence of record, the Board is of the opinion that the evidence warrants an increased rating for the appellant's degenerative disc disease. The current manifestations include some limitation of motion with pain and periodic increased symptomatology, and neurological symptoms which more nearly approximate the disability picture of moderate recurring attacks of intervertebral disc syndrome which calls for a 20 percent disability rating. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5293 (1994). The reported symptomatology of the appellant's degenerative disc disease, in the opinion of the undersigned, does not approach the severe level required for a 40 percent disability rating. The Board bases this conclusion on the appellant's entire medical record, with emphasis upon his most recent July 1993 VA examination and private medical treatment records from Group Health, which indicate that, although pain was reasonably controlled, range of motion of his lumbar spine was impaired and there were indications of neurological deficits. 2. Entitlement to an increased rating for service connected residuals of bilateral bunionectomies, currently evaluated as 10 percent disabling. Service medical records reveal that the appellant complained of pain in the left foot and received a bunionectomy in March 1973. He continued to complain of pain in the 1st metacarpophalangeal joint [MPJ] in June 1979. Although he reported that his foot had been asymptomatic following a McBride procedure in March 1973, he was experiencing increased pain and "drifting" of the hallux laterally. The examiner observed slight symptoms of degenerative joint disease that were not disabling. He noted a valgus of the great toe with a soft corn on the second toe and good range of motion. X-rays revealed early degenerative joint disease of the great toe metatarsophalangeal joint [MTP]. The examiner's impression was hallux valgus post bunionectomy. A February 1985 military medical treatment entry reported that the appellant complained of "crooked toes." The examiner assessed arthritic changes at the 1st MPJ with jamming at the lateral aspect. A March 1990 military treatment entry reported that the appellant complained of left and right "bunion deformity." A March 1990 military hospital summary reported that the appellant received bilateral hallux repair by osteotomy, and exostosectomy with K- wire fixation. A June 1990 medical treatment entry reported that the appellant complained of persistent pain and swelling. The examiner observed decreased range of motion of the 1st MPJ bilaterally with crepitus, pain and pain on palpation. He assessed bilateral hallux limitus and delayed union capsulitis of the 2nd MPJ. In August 1990 the appellant continued to complain of pain in his feet. He had 35 degrees of dorsiflexion and 25 degrees of plantar flexion of the 1st MPJ on the left. He also had 40 degrees of dorsiflexion and zero plantar flexion on the right. The examiner assessed severe hallux limitus, greater on the left with degenerative joint disease, which he noted was severely aggravated by service. A VA examination was conducted in February 1990. The appellant complained of bilateral foot pain. The examiner observed scars over the 1st toe on the dorsum of the right foot and over the area between the 1st and 2nd toes. There was a scar over the 1st toe on the dorsum of the left foot. Bilaterally the appellant could not extend or flex his toes normally. However, there was no definite deformity of the toes at rest. The examiner diagnosed bilateral halgus valgus surgery with residual symptoms. Private medical treatment records from Group Health dated from May 1991 to March 1992 reported that the appellant complained of bilateral foot pain, especially after prolonged standing or walking. A June 1991 treatment entry reported that he had sensation to vibration and touch to the 2nd toe of the right foot. Otherwise the foot was slightly decreased symmetrically with the opposite foot. Deep tendon reflexes were normal. The examiner assessed neuritis of the 2nd interdigital space of the right foot and status post bunionectomy of both feet. A July 1991 treatment entry reported that the appellant received an injection for pain, and tenderness was noted. A July 1993 VA examination reported that the appellant complained of severe pain in his feet with weight bearing. He had normal sensation of both feet and lower extremities. His incisions were well healed. The configuration of the MPJ on the left was normal. He had dorsiflexion of 43 degrees and plantar flexion of 54 degrees of the right great toe. Left great toe motion appeared to be limited with only 12 degrees dorsiflexion and 10 degrees plantar flexion. There were no other abnormalities. The examiner diagnosed status post surgery for bilateral hallux valgus with severe pain on weight bearing in the metatarsal phalangeal joints and all of the toes bilaterally. X-rays revealed very little evidence of hallux valgus deformity. Mild degenerative changes were seen in the heads of the first metatarsal bones, but could represent post surgical effect. After carefully reviewing and evaluating all of the medical evidence, the Board is of the opinion that the evidence warrants an increased rating for the residuals of bilateral bunionectomies. The current manifestations of the appellant's bilateral bunionectomies, which include some limitation of motion and pain on weight bearing, approximate the level of severity which calls for a 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (1994). The reported residuals of the appellant's bilateral bunionectomies, in the opinion of the undersigned, do not approach the more severe level of impairment required for a 30 percent disability evaluation, as the record, with emphasis upon his most recent July 1993 VA examination, indicates that, although he had limitation of motion with pain on weight bearing, he had normal sensation with very little evidence of hallux valgus deformity on x-ray and only mild degenerative changes observed. In exceptional cases where the evaluations provided by the rating schedule are found to be inadequate, an extra-schedular evaluation may be assigned where the facts in the case present such unusual or exceptional circumstances, with related factors such as marked interference with employment or frequent periods of hospitalization, that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (1994). However, the current case does not reflect extraordinary or unique factual circumstances of such a nature as are contemplated for application of an extra-schedular rating, since, neither his service-connected degenerative joint disease of the lumbosacral spine nor residuals of bilateral bunionectomies are shown to cause marked interference with employment or frequent periods of hospitalization. ORDER An increased disability rating for the appellant's service- connected degenerative disc disease of the lumbosacral spine is granted. An increased disability rating for the appellant's service- connected residuals of bilateral bunionectomies is granted. KENNETH R. ANDREWS 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.