BVA9501834 DOCKET NO. 93-03 396 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for herniated nucleus pulposus of the lumbar spine, currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating for hypertension, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and F. Curry ATTORNEY FOR THE BOARD P. A. Dowdell, Associate Counsel INTRODUCTION The veteran served on active duty from June 1955 to June 1959, from October 1965 to October 1969, and from April 1979 to April 1991. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from an August 1991 rating decision from the Waco, Texas, Regional Office (RO), which, in pertinent part, granted service connection for herniated nucleus pulposus of the lumbar spine and assigned a schedular 20 percent evaluation. This rating action also granted service connection for hypertension and assigned a zero percent evaluation. The veteran perfected an appeal relative to entitlement to an increased rating for herniated nucleus pulposus of the lumbar spine and hypertension. A hearing was held before a hearing officer at the RO in April 1992. By rating action of November 1992, implementing the hearing officer's decision, the veteran's hypertension was assigned a schedular 10 percent evaluation. Although the issue of entitlement to an increased rating for degenerative disc disease of the cervical spine has been certified to the Board for appellate consideration, the Board notes that neither the veteran nor his representative has expressed disagreement with that assigned rating. As such, the Board declines jurisdiction as to that matter. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that increased evaluation is warranted for herniated nucleus pulposus of the lumbar spine and hypertension. 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 claims for an increased rating for hypertension and herniated nucleus pulposus of the lumbar spine. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's herniated nucleus pulposus of the lumbar spine is primarily manifested by complaints of chronic back pain, productive of no more than moderate limitation of motion. 3. The veteran's hypertension is primarily manifested by recent diastolic pressure readings no higher than 90. 4. Neither an unusual nor exceptional disability picture has been demonstrated so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for herniated nucleus pulposus of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b), Part 4, §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5289, 5292, 5293, 5294, 5295 (1993). 2. The criteria for an evaluation in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b), Part 4, § 4.104, Diagnostic Code 7101 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claims are "well-grounded" within the meaning of 38 U.S.C.A. § 5107. That is, the Board finds that he has presented claims which are plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Service connection for herniated nucleus pulposus of the lumbar spine and hypertension was granted by a rating action dated in August 1991, following a review of the evidence then of record including, in particular, the service medical records and the report of VA examination dated in July 1991. A schedular 20 percent evaluation was assigned for herniated nucleus pulposus of the lumbar spine effective from May 1, 1991. A zero percent evaluation was assigned for hypertension effective from May 1, 1991. By rating action of November 1992, implementing the hearing officer's decision, the veteran's hypertension was assigned a schedular 10 percent evaluation effective from May 1, 1991. As indicated above, the veteran contends that his herniated nucleus pulposus of the lumbar spine and hypertension are of such severity as to warrant an increased evaluation. After a review of the record, the Board finds that his contentions are not supported by the evidence, and that his claims fail. I. Lumbar Spine Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The severity of herniated nucleus pulposus of the lumbar spine is determined, for VA rating purposes, by application of the provisions of Parts 3 and 4 of the Code of Federal Regulations, and in particular 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, (1993) and Diagnostic Codes 5289, 5292, 5293, 5294, 5295 (1993) of the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1993). Ankylosis of the lumbar segment of the spine at a favorable angle warrants a 40 percent evaluation. 38 C.F.R. Part 4, Diagnostic Code 5289. Moderate limitation of motion of the lumbar segment of the spine warrants a 20 percent evaluation. A 40 percent evaluation requires severe limitation of motion. 38 C.F.R. Part 4, Diagnostic Code 5292. A 20 percent evaluation is warranted for moderate intervertebral disc syndrome with recurring attacks. A 40 percent evaluation requires severe intervertebral disc syndrome with recurring attacks with intermittent relief. 38 C.F.R. Part 4, Diagnostic Code 5293. A 20 percent evaluation is warranted for sacroiliac injury and weakness or lumbosacral strain where there is muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. A 40 percent evaluation requires severe sacroiliac injury and weakness or lumbosacral strain manifested by 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 the joint space. A 40 percent evaluation is also warranted if only some of these manifestations are present if there is also abnormal mobility on forced motion. 38 C.F.R. Part 4, Diagnostic Codes 5294, 5295. The service medical records include a hospitalization record dated in July 1990 reveals the veteran was admitted for lumbar myelography with associated computerized tomography and underwent decompressive laminectomy because of incapacitating claudication. Postoperatively, claudication disappeared. The final diagnoses included lumbar spinal stenosis, neurogenic claudication, and lumbar spondylosis, extensive, multiple levels. Service medical records reveal the veteran received physical therapy treatment for his back disability from December 1990 and was on pain medication. In December 1990, the veteran reportedly had no complaint except when lifting heavy objects. Examination revealed trunk mobility was slightly limited on motion, 10 percent, but without pain. Straight leg raising was negative in the sitting and supine positions. There was no tenderness to palpation. The assessment was status post diskectomy of the lumbar spine. The examiner opined the veteran was "doing very well," and that he would be discharged from physical therapy at that time. Follow-up was recommended "as needed." The report of Department of Veterans Affairs (hereinafter VA) examination performed in July 1991 demonstrates that the veteran reported to the examiner that he has back pain. The physical examination of the veteran's back showed lateral bending to be about 50 percent of normal. On forward bending, the veteran was able to reach to within one foot of the floor with his outstretched hands. He was able to do heel and toe walking although he had some difficulty in holding his weight on his left foot. Deep tendon reflexes in the lower extremities showed the knee jerks and ankle jerks to be equal and active. The examiner noted that X-rays of the lumbosacral spine showed moderate narrowing of the L3-L4 and L4-L5 intervertebral disc spaces. The examiner noted that the veteran had had a complete laminectomy of L3-L4, and L5 and possibly L2 as well. His sacroiliac and hip joints appeared to be normal. A radiographic report of X-ray evaluation of the lumbar spine revealed status post L3 to L5 posterior laminectomy with degenerative joint disease change. There was no evidence of acute bony disease. The examiner's diagnostic impressions included a rather marked impairment of back function. Sworn testimony provided by the veteran at the RO hearing in April 1992 was essentially an elaboration of previously mentioned contentions. The veteran testified that he has daily pain in his lower back which radiates down the left leg. He stated that he takes medication, uses a bed board, and sleeps on an orthopedic mattress. The veteran indicated that he wears a back brace and is on an exercise program, but that his activities are limited by low back problems. The report of VA orthopedic examination performed in September 1992 reveals the veteran reported complaints of low back pain. On physical examination, the veteran had fair range of motion in the low back area. Forward flexion of the lumbar spine was possible to 60 degrees. Backward extension was possible to 10 degrees. There was a well healed midline low back scar. Straight leg raising tests were negative. Ankle and knee jerks were equal and active. There was no measurable atrophy in the thigh or calves. X-rays of the lumbar spine showed status post L3-L5 laminectomy grade I L4-5 spondylolisthesis, narrowing L4 disc space, and large osteophyte anterosuperior aspect L4 vertebral body. There had been no significant change since July 1991. The diagnoses included generalized osteoarthritis with limited motion of the lumbar spine. Based on a review of all of the evidence of record, the Board finds that an evaluation in excess of the 20 percent for the veteran's herniated nucleus pulposus of the lumbar spine is not warranted. The lumbar spine has not been shown to be ankylosed, so as to warrant a greater evaluation under Diagnostic Code 5289. The reported clinical findings on VA examinations in July 1991 and September 1992 reflect range of motion of the lumbar segment of the spine, albeit limited. The demonstrated limitation of motion of the lumbar spine has not been shown to be severe, so as to warrant the next higher evaluation under Diagnostic Code 5292. On VA examination in July 1991, the veteran demonstrated about 50 percent of normal lateral flexion. The reported ranges of motion noted on VA examination in September 1992 were consistent with that characterization of the veteran's lumbar spine motion in that no more than moderate limitation of motion of the lumbar spine was demonstrated. Likewise, there has been no demonstration of severe intervertebral disc syndrome, sacroiliac injury and weakness, or lumbosacral strain to warrant an increased evaluation under Diagnostic Codes 5293, 5294, or 5295. There has been no reported muscle spasm or listing of the lumbar spine. Moreover, as noted above, marked limitation of forward bending is not shown. Additionally, no neurological deficit was noted on examinations in July 1991 or September 1992. Although the veteran has reported complaints of increasing pain, he has no bowel, bladder or rectal dysfunction, and has no major motor deficits of his lower extremities. Inasmuch as the schedular criteria for an increased evaluation are not met, we must accordingly conclude that the preponderance of the evidence is against the veteran's claim for an increased evaluation for residuals of lumbar diskectomy for herniated nucleus pulposus. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Diagnostic Codes 5289, 5292, 5293, 5294, 5295. II. Hypertension The severity of hypertension is determined, for VA rating purposes, by application of the provisions of Parts 3 and 4 of the Code of Federal Regulations, and in particular 38 C.F.R. § 4.104 (1993) and Diagnostic Code 7101 of the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1993). A 10 percent evaluation is warranted for hypertensive vascular disease (essential arterial hypertension) where the diastolic pressure is predominantly 100 or more. A minimum 10 percent evaluation is also assigned when continuous medication is shown necessary for the control of hypertension and there is a history of diastolic blood pressure of predominantly 100 or more. A 20 percent evaluation requires diastolic pressure of predominantly 110 or more with definite symptoms. 38 C.F.R. Part 4, Diagnostic Code 7101 (1993). In regards to the veteran's hypertension, the service medical records reveal that the veteran was treated on multiple occasions for complaints of high blood pressure when the assessment was hypertension. A treatment record dated in March 1984 noted assessment of hypertension, good control. A February 1985 treatment record showed diagnostic impression of hypertension, essential controlled. The reported diagnostic pressures in service were all less than 110. In regard to the veteran's hypertension, the report of VA examination in July 1991 disclosed the veteran had a blood pressure reading of 118/86 while sitting. Pulse rate was 72 and respiration rate was 16. The heart was of normal size with regular rhythm. There was no evidence of murmurs. Pedal pulses were present. The veteran testified at the RO hearing in April 1992 that he continues to take medication for control of hypertension. The report of VA examination conducted in September 1992 noted that the veteran reported to the examiner that he has had known hypertension for about 15 years. He also stated that he has taken various medications in the past, but presently he takes Zestril. The physical examination was essentially negative. The peripheral pulses and heart were normal. The veteran's blood pressure reading was 134/90. His heart rate was 72 and regular. The examiner noted that the veteran's electrocardiogram showed left axis deviation without evidence of a conduction defect. The examiner's diagnostic impressions included hypertension, under good control. The Board finds that an evaluation in excess of 10 percent for hypertension is not warranted. The veteran's diastolic pressure has not been shown to be predominantly 110 or more with definite symptoms, so as to warrant a greater evaluation under Diagnostic Code 7101. Specifically, the Board notes that the recent medical evidence consisting of reported clinical findings on reports of VA examination in July 1991 and September 1992 demonstrate that the diastolic pressure readings were 86 and 90. These reports do not indicate that the veteran currently has diastolic pressure readings of at least 110. Inasmuch as the schedular criteria for an increased evaluation are not met, we must accordingly conclude that the preponderance of the evidence is against the veteran's claim for an increased evaluation for hypertension. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 7101. III. General Considerations In reaching the above decisions, the Board has considered the complete history of the disabilities in question as well as the current clinical manifestations and the impact the disabilities may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2 (1993). In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation may be awarded commen-surate with average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321. We do not find that this case presents such an exceptional or unusual disability picture inasmuch as there has been no demonstration of such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. ORDER An increased rating for herniated nucleus pulposus of the lumbar spine and hypertension is denied. U. R. POWELL 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.