BVA9500935 DOCKET NO. 91-51 493 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased rating for lumbosacral strain and superimposed degenerative disc disease with left-sided L5 - S1 radiculopathy (low back disability), currently evaluated as 20 percent disabling. 2. Entitlement to a total compensation rating based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Richard F. Williams, Counsel INTRODUCTION The veteran served on active duty from April 1971 to February 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Los Angeles, California, Regional Office (RO), which denied a compensable rating for lumbosacral strain and service connection for degenerative disc disease of the lumbar spine. In a remand entered in November 1992, the Board found that the veteran had raised the issue of a total compensation rating based on individual unemployability during the appeal, and it was determined that the issue was "inextricably intertwined" with the increased rating issue. The Board also listed as an issue whether a March 1974 RO decision reducing the disability evaluation for lumbosacral strain from 10 percent to noncompensable was clearly and unmistakably erroneous. Unfortunately, the Board did not specify in the body of the remand that this issue, too, was "intertwined" with the issue of an increased rating, in the sense that a finding of prior error would have an effect on the current rating to be assigned. This issue was not addressed by the RO on remand. An RO decision in August 1993 granted secondary service connection for degenerative disc disease of the lumbar spine and increased the rating for the veteran's lumbosacral strain superimposed on decompressive laminectomy for degenerative disc disease with left-sided L5 - S1 radiculopathy from noncompensable to 20 percent. (A temporary total rating was also granted based on March 1993 surgery. The RO determined that an extraschedular rating under 38 C.F.R. § 3.321 or referral under 38 C.F.R. § 4.16(b) was not warranted.) This means that the propriety of the 1974 reduction from 10 percent to noncompensable is no longer intertwined with the current rating issue, because a retroactive restoration of the 10 percent rating would not affect the level of the current rating, which has already been raised by the RO to 20 percent. However, it remains an issue for initial consideration by the RO, and is referred to the RO for such consideration. The RO also denied a total compensation rating based on individual unemployability, and issued a supplemental statement of the case on this issue. The veteran testified at a hearing conducted at the RO in January 1994. The case was returned to the Board in November 1994. The veteran presented testimony on the issues of a rating in excess of 20 percent for his low back disability and a total compensation rating based on individual unemployability at the January 1994 RO hearing noted above. Also submitted at that time were documents from the Social Security Administration (SSA) pertaining to a grant of Social Security disability benefits in November 1993. In a subsequent supplemental statement of the case issued in July 1994, the RO noted that, since the veteran had not formally appealed the denial of a total compensation rating based on individual unemployability, the issue was not forwarded to the Board. While it can no longer be held that the total compensation rating claim is inextricably intertwined with the increased rating claim on appeal (See Holland v. Brown, 6 Vet.App. 443, 446 (1994)), since the veteran's testimony on the issue was transcribed within a year of the August 1993 RO denial, I find that the issue has been appealed in a timely manner and is properly before the Board. 38 C.F.R. § 20.302(b) (1993); compare Tomlin v. Brown, 5 Vet.App. 355 (1993) (transcribed oral remarks satisfy the requirement that a notice of disagreement must be in writing.) Finally, at the January 1994 hearing, the veteran appeared to raise the issue of service connection for a cervical spine disability. Transcript 5, 6. But he later indicated he was not making such a claim. Id. at 13. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected low back disability is more disabling than currently evaluated and precludes him from engaging in substantially gainful employment. It is argued on his behalf that he would be more appropriately rated under 38 C.F.R. § 4.71a, Code 5293 and, under those criteria, meets the criteria for at least a 40 percent evaluation. Clinical findings reported in recent years and a recent grant of disability benefits from the SSA are cited in support of his claims. 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 claim for an increased rating to 60 percent for a low back disability, but is against the claim for a total compensation rating based on individual unemployability. FINDINGS OF FACT 1. The veteran's service-connected low back disability is productive of persistent symptoms compatible with pronounced sciatic neuropathy with characteristic pain, demonstrable muscle spasm, and an absent ankle jerk. 2. The veteran has a high school education plus some college and training in carpentry, and his employment experience includes work as a sales and stock clerk and several jobs as a carpenter; he was last substantially employed in June 1990. 3. His only service-connected disability is a low back disorder, which does not preclude all forms of substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 60 percent rating for a low back disability have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.71a, Codes 5292, 5293, 5295 (1993). 2. The requirements for a total compensation rating based on individual unemployability have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty from April 1971 to February 1973. The service medical records show that he sustained a lifting low back injury in May 1971. He was treated for bilateral lumbar spasm. He sustained a second low back injury in February 1972 while lifting a patient. His symptoms included low back pain with radiation down his right leg and the subsequent development of numbness in the right lower extremity. Clinical findings included decreased sensation to pinprick over the entire right leg. X-rays of the lumbosacral spine were negative. The veteran was hospitalized and treated for a lumbosacral strain. Subsequently dated service medical records show that the veteran continued to experience persistent pain in the lumbosacral region with radiation into the right lower extremity. A neurological evaluation found no evidence of a herniated nucleus pulposus. He received a disability discharge. The final diagnosis was chronic lumbosacral strain. An RO decision in June 1973 granted service connection and assigned a 10 percent rating for lumbosacral strain. The veteran underwent a VA medical examination for disability evaluation in January 1974. He complained of almost daily low back pain radiating to the buttocks posteriorly, particularly upon prolonged sitting or standing. His legs ached down to the knees. Clinical evaluation showed his spinal muscles were well developed and moderately spastic. There was no list of the spine. He squatted and recovered well. Straight leg raising was to 90 degrees on the right and 85 degrees on the left. Lasegue's sign was negative. Range of motion of the lumbar spine was as follows: Flexion to 95 degrees; extension to 35 degrees; lateroflexion to 40 degrees; and rotation to 35 degrees. The knee jerks were depressed, bilaterally. The ankle jerks were equal, active and two plus, bilaterally. X-rays revealed some narrowing of the L4-L5 interspace and a mild scoliotic curve with convexity to the left in the lower lumbar region. The clinical diagnosis was lumbosacral strain. An RO decision in March 1974 reduced the rating for the veteran's lumbosacral strain from 10 percent to noncompensable. That decision was not appealed and became final. Private outpatient clinic records on file show that the veteran was treated for acute back strains in May 1985 and January 1986 following low back injuries sustained at those times. In a statement dated in August 1990, James L. Terrell, D.C., a chiropractor, reported that he had treated the veteran for a low back disability since October 1975. It was noted that on his first visit he was suffering from very severe low back pain and sciatic nerve pain down both legs, but especially severe on the right side, accompanied by extremely painful muscle spasm. He was working at the time in a food market which required some mild lifting and twisting. He received treatment on numerous occasions so that he was able to continue to work, but it was noted that currently he was not able to continue working and was suffering with severe problems in his low back and limbs. It was reported that his right leg was numb to the extent that he could not feel a pin sticking in it from the thigh to the knee; he gave a history of frequent episodes of numbness of the lower extremities. It was opined that his condition indicated a "severely injured circulatory problem" commencing in his low back and affecting both his legs. It was further noted that he was not able to continue work and had not worked since June 1990. A second chiropractor, Eugene J. Swella, Jr., D.C., reported in an August 1990 statement that the veteran was experiencing low back pain and bilateral sciatica. It was noted that he had been receiving chiropractic spinal adjustments based on hard tissue X-rays of his lumbar-pelvic spine. It was further reported that his symptom complex had improved 50 to 60 percent, but then seemed to stabilize. A further soft tissue study of the lumbar spine was recommended. It was also reported that the veteran had degenerative disc disease moderately at L4 and severely at L5, and it was thought that a magnetic resonance imaging (MRI) examination would be helpful. Additional chiropractic treatment records dated in August and September 1990, reflecting treatment for the veteran's low back disability, are also of record. The veteran underwent an orthopedic examination in November 1991, performed by Aram Jigarjian, M.D., for disability evaluation purposes. He complained of chronic low back pain with radicular- type pains in both legs and occasional paresthesias. It was noted that his symptoms began in late June 1990 after he apparently jumped 8 feet and landed on a concrete surface with the immediate onset of lower back pain. He subsequently saw his chiropractor and was treated for approximately one year with no essential relief in symptoms despite at least 50 chiropractic treatments. His pain was present every day and was worse with attempts at increased activities, including bending or sitting for a prolonged period of time. His evaluation and treatment history was summarized. Physical examination revealed diffuse lumbosacral and sacroiliac tenderness present. Range of motion of the low back revealed forward flexion to 70 degrees, hyperextension to 20 degrees, and lateroflexion to 30 degrees. No sciatic tenderness was present. The deep tendon reflexes were trace and symmetrical at the knees and ankles. Some patchy hypoesthesia of the left leg in no definite pattern was also noted. X-rays of the lumbosacral spine were reported to show marked narrowing at the L5 - S1 interspace. The impression was spondylogenic low back disease with elements of radiculopathy. Further diagnostic studies were recommended. Dr. Jigarjian opined that, on the basis of the veteran's symptoms, he was unable to carry out regular, light, or limited work activities. The veteran was hospitalized in a VA medical center in March 1993 for evaluation of low back pain and bilateral lower extremity numbness dating back to 1972 after suffering a lifting injury to the back. It was noted that he had not responded to physical therapy, chiropractic treatment, or nonsteroidal medication. He described his pain as shooting and electric in nature. The pain was constant, but waxed and waned somewhat and was worse with walking or lifting and slightly improved in the supine position. Neurologic examination revealed motor strength was 5/5 in all four extremities. Sensation was intact to pinprick and light touch throughout. Deep tendon reflexes were one plus and symmetric at the Achilles tendons and symmetric at the patellar tendons. It was noted that an MRI obtained previously demonstrated a Grade II L4-5 paracentral herniated nucleus pulposus with root compression. The veteran underwent a decompressive lumbar laminectomy at L4-5 and L5 - S1. He was noted to be neurologically intact postoperatively and complained of minimal to no leg pain after surgery. He was discharged to home in stable condition noting that his lower extremity pain was markedly improved. The discharge diagnosis was lumbar canal stenosis secondary to short pedicles and L4-5 herniated nucleus pulposus. The veteran underwent a VA compensation examination in June 1993. He complained of increased backache with some aching pain into both legs, more on the left than the right, along with diffuse numbness in the legs after prolonged sitting in a hard chair. It was noted that he obtained minimal relief with medications. He also complained of severe increased weather-related pain, but it was noted that it had only been 3 to 4 months since his recent surgery. Physical examination of his lumbar spine showed almost complete loss of the normal lumbar curve. Range of motion was flexion to 60 degrees, extension to 5 degrees, and lateroflexion to 5 degrees. The sciatic notches were not particularly tender and there was no loss of sensation in the lower extremities. The reflexes showed only one-plus activity of the knee jerks, even with accentuation, and a zero to one-plus ankle jerk on the right and essentially zero ankle jerk on the left. The straight leg raising test was negative to 85 degrees, with a slightly positive Lasegue's test stretching the left leg. It was reported that X-rays showed significant degenerative disc disease at the L5 - S1 level and spinal stenosis in the same area. The examiner opined that the veteran's degenerative disc disease and spinal stenosis were caused by his lumbosacral strain. It was summarized that he had marked paravertebral muscle spasm, with limitation of motion of the lumbar spine and recurrent episodes of sciatic irritation, with no true radiculopathy, except with some mild left-sided radiculopathy as evidenced by the absent ankle jerk, even with accentuation. The diagnosis was recurrent lumbosacral strain superimposed on recent decompressive laminectomy for degenerative disc disease, with mild left-sided L5 - S1 radiculopathy. A form received from the veteran in July 1993 indicates he had last worked as a sales clerk in a discount store from July 1991 to July 1992. He had worked 8 to 20 hours weekly, earning at most $708 per month. Before that, he had worked fairly steadily as a carpenter until his back injury in June 1990. Information from the discount store where he had last worked shows he had worked about 4 hours daily, 20 to 30 hours weekly, but had been let go because business was slow. The veteran was hospitalized in a VA medical center in September 1993 for (non-service-connected) cervical spondylosis. He underwent anterior cervical diskectomy and fusion at two levels, at C4-5 and C5-6 at that time. It was noted that he had had a motorcycle accident several years prior to hospital admission with subsequent neck pain and had been knocked down several times as a carpenter. The veteran testified at a hearing conducted at the RO in January 1994 that he had constant low back pain with radiation into the lower extremities, numbness of the legs with prolonged sitting, constant muscle spasms from the low back and hip areas to the ankles, and inability to sit, stand, or walk for a prolonged period of time because of his low back symptoms. He said that his low back disability essentially prevents him from doing any type of physical activity, including lifting or bending, so that it effectively rules out any type of substantially gainful employment. He pointed out that he continues to receive treatment at a VA hospital, which has included medications and a back brace. He also attributed a slapping type of gait disturbance involving his left leg to his low back disability. He said that recent examinations have shown absent ankle and knee jerks and sensory impairment. The veteran further testified that he has been unable to retain or obtain employment since 1990 because of his disabilities. He claimed that he was unemployable solely due to his service-connected low back disorder. He noted that he has been employed in heavy construction and carpentry work most of his life and was simply unable to perform this type of work anymore because of his low back disorder. He indicated that he has essentially constant low back symptoms despite various treatment modalities, including lying on the floor and the use of boards under his mattress. SSA records received in January 1994 show that a Administrative Law Judge granted the veteran Social Security disability benefits by a decision entered in November 1993. His history of lumbar spine and cervical spine surgeries was noted. It was determined that his impairments prevented him from performing more than an extremely limited range of sedentary work. It was noted that he was able to sit for only 15 minutes at a time and stand for one hour at a time, and had to lie down for approximately three hours out of every eight-hour day. He also had great difficulty using his right hand and arm. It was concluded that, based on his residual functional capacity and vocational factors, there were no jobs existing in significant numbers which he could perform. It was found that he had been disabled since June 1990, and that work performed since then had amounted to work in a "sheltered workshop" rather than substantial gainful activity. Additional VA clinical records show that the veteran was seen on numerous occasions from July 1993 to February 1994 for pain, weakness and other symptoms attributed to a cervical spine disability. The only mention of his low back disability is an October 1993 notation that his chronic back pain was "better" since his March 1993 surgery. II. Analysis A. An Increased Rating for a Low Back Disability Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Moderate limitation of motion of the lumbar spine warrants a 20 percent evaluation. Severe limitation of motion is rated 40 percent. 38 C.F.R. § 4.71a, Code 5292. Intervertebral disc syndrome or disease productive of moderate recurring attacks warrants a 20 percent evaluation. Severe recurring attacks, with intermittent relief, is rated 40 percent. Pronounced disability, with persistent symptoms compatible with sciatic neuropathy and with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and with little intermittent relief, warrants a 60 percent evaluation. 38 C.F.R. § 4.17a, Code 5293. Lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in a standing position, warrants a 20 percent evaluation. Severe disability with 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, or some of the above with abnormal mobility on forced motion, is rated 40 percent. 38 C.F.R. § 4.71a, Code 5295. It is quite evident from the record that the veteran's low back disability remains symptomatic and productive of significant functional impairment. He underwent a decompressive lumbar laminectomy at L4-5 and S1 during a VA hospitalization in March 1993, and he was discharged in stable condition shortly thereafter, but private clinical records dated prior to that surgery and a subsequently dated report of a VA compensation examination clearly show findings compatible with more than moderate disability. That is, it is my judgment that the relevant medical evidence supports a higher rating. The question here is whether his low back disability meets the schedular requirements for a 40 or 60 percent evaluation. The threshold question, however, which has been raised on behalf of the veteran during this appeal is whether his low back disability would be more appropriately rated under Code 5293. He is, in fact, service connected for degenerative disc disease superimposed on a lumbosacral strain and, as will be explained below, there is clinical evidence of neurological symptoms compatible with sciatic neuropathy. Accordingly, I agree with that portion of the argument that has been presented on the veteran's behalf and find that the schedular criteria found in Code 5293 are for application. Since he remains service connected for a lumbosacral strain, Code 5295 also must be considered. Dr. Jigarjian reported following his November 1991 orthopedic examination of the veteran that elements of radiculopathy were present and, on the basis of the veteran's symptoms, he was unable to carry out regular, light, or limited, work activities. However, it was also noted that his symptoms began on June 25, 1990, when he apparently jumped 8 feet landing on a concrete surface with the immediate onset of lower back pain. The chiropractic treatment records on file reflect evaluation for treatment during the months immediately after that date. The clinical findings reported by Dr. Jigarjian do not support a rating in excess of 20 percent under any of the applicable rating criteria. I note only mild limitation of motion of the lumbar spine, no indication of muscle spasm in the low back region, and the presence of bilateral ankle jerks, albeit diminished. Thus, even if one were to assume that the veteran's low back symptoms in January 1991 were entirely the result of his underlying service-connected low back disability versus any recent superimposed injury (which is clearly not the case as he gave a history of a recent injury), he still did not meet the schedular requirements for a rating in excess of 20 percent under 38 C.F.R. § 4.71a, Codes 5292, 5293 or 5295. However, his low back disability not only remained symptomatic but subsequently worsened as evidenced by the need for the lumbar laminectomy in March 1993 and the June 1993 VA compensation examination, which, as will be explained below, revealed findings consistent with severe functional impairment. While the veteran was discharged in stable condition in March 1993 following a lumbar laminectomy, the June 1993 VA compensation examination showed an overall increase in his low back symptomatology. I note, for example, his history of an increase in low back pain with radiation into the lower extremities and diffuse numbness of the legs. The clinical findings included almost complete loss of the normal lumbar curve and moderate to severe limitation of motion of the lumbar spine. The neurological findings included absent to diminished ankle jerks and marked paravertebral muscle spasm. These clinical findings clearly support a 40 percent rating under Code 5293 or 5295. Since a 40 percent evaluation represents the maximum rating under Code 5295, the question that remains is whether the veteran meets the criteria for a 60 percent rating under Code 5293. As discussed above, it is apparent that the onset of the veteran's low back symptoms was immediately after a low back injury in June 1990. However, the VA orthopedic examiner noted in June 1993 that his degenerative disc disease represented the normal progression of his lumbosacral strain. I am unable to distinguish between the symptoms and clinical findings attributable to his service-connected lumbosacral strain with superimposed degenerative disc disease and functional limitation attributable to the June 1990 low back injury. While the maximum schedular rating for lumbosacral strain is 40 percent (Code 5295) and there has been no clinical demonstration of ankylosis of the lumbar spine so as to support a rating in excess of 40 percent (Codes 5289 and 5292), as previously discussed, his low back disability is also appropriately rated under Code 5293 which permits a 60 percent rating for pronounced disability. Since there has been clinical demonstration of persistent neurological symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm and an absent ankle jerk, I find that the veteran does, in fact, more closely approximate the schedular criteria for a 60 percent rating. B. A Total Compensation Rating Based on Individual Unemployability Total disability ratings for compensation may be assigned where the schedular rating for the service-connected disability or disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16. The veteran's only service-connected disability is a low back disorder, which, as the result of this decision, is rated 60 percent. Thus, the issue is whether his low back disability precludes him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage") Moore v. Derwinski, 1 Vet.App. 83 (1991). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes this case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet.App. 361 (1993). The veteran reportedly has not been able to engage in substantially gainful employment since June 1990 which, I note, is the time that he gave a history of a low back injury. (See the report of the November 1991 examination performed by Dr. Jigarjian.) Nevertheless, since I have determined that his low back disability is productive of persistent neurological symptoms and findings compatible with pronounced disability, it logically follows that his service-connected low back disability would prevent him from engaging in any type of work that involved any appreciable manual labor, including most, if not all, of the carpentry jobs that he has performed in the past. However, I am unable to conclude that his low back disability prevents him from engaging in all forms of substantially gainful employment. In support of this conclusion, I note that he still has a fair amount of motion of the lumbar spine, particularly forward flexion. He has not required hospitalization since he underwent the lumbar laminectomy in April 1993. While the June 1993 VA compensation examination indicated an increase in low back symptoms, I note that subsequently dated VA neurosurgical outpatient clinic records pertain only to his non-service- connected cervical spine disability. It is apparent that that disability has contributed to his inability to work. I have considered the fact that he is in receipt of Social Security disability benefits, which is evidence in support of the veteran's claim, but aside from the fact that there are some principal differences between the Social Security concept of unemployability and that of VA (See Murincsak v. Derwinski, 2 Vet.App. 363 (1992); Collier v. Derwinski, 1 Vet.App. 413 (1991)), it becomes clear in reviewing the Social Security records that the veteran was found to be entitled to benefits, in part, because of his non-service-connected cervical spine disability. It is again pertinent to point out that the more recent VA outpatient clinic records on file only reflect treatment for the cervical spine disorder and that non-service- connected disability cannot be considered. The fact that the veteran was able to perform on a part-time basis as a sales clerk despite both disabilities shows that the low back disability alone has not totally negated his capacity to function in an employment setting. Hence, I find that the veteran's service-connected low back disability alone does not prevent him from securing or following a substantially gainful occupation. Accordingly, a total compensation rating based on individual unemployability is not warranted. ORDER An increased rating to 60 percent for a low back disability is granted. A total compensation rating based on individual unemployability is denied. J. E. DAY 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.