BVA9500597 DOCKET NO. 92-05 863 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an increased rating for service-connected degenerative disc herniation, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for service-connected left wrist fracture residuals, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD M. J. Bohanan, Associate Counsel INTRODUCTION The appellant served on active duty from November 1989 to April 1991. This appeal arises from a June 1991, Department of Veterans Affairs Regional Office, New York, New York (VARO) rating decision which granted the appellant service connection for degenerative disc herniation, evaluated as 10 percent disabling, and service connection for residuals of a left wrist fracture, evaluated as 10 percent disabling. The Board of Veterans' Appeals remanded the appellant's claim in an October 1992 decision for further development. Additional development was completed and, in a February 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 her service-connected degenerative disc herniation and residuals of a left wrist fracture 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 does not support an increased rating for the appellant's service-connected degenerative disc herniation and residuals of a left wrist fracture. FINDINGS OF FACT 1. Current manifestations of the appellant's service-connected degenerative disc herniation, include pain and some limitation of motion. 2. Current manifestations of the appellant's service-connected residuals of a minor left wrist fracture, include complaints of numbness with no decreased range of motion or strength. CONCLUSIONS OF LAW 1. The manifestations of the appellant's service-connected degenerative disc herniation are no more than 10 percent disabling. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Codes 5295 (1993). 2. The manifestations of the appellant's service-connected residuals of a (minor) left wrist fracture are no more than 10 percent disabling. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5214 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has satisfied her statutory burden of submitting evidence which is sufficient to justify a belief that her 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 (1993). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 (1993) 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 (1993) requires that medical reports be interpreted in light of the whole recorded history. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The VA Schedule for rating disabilities does not specifically refer to degenerative disc herniation. However, 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 (1993). The schedular criteria for ankylosis of the minor wrist provides for a 10 percent disability rating for dorsiflexion of less than 15 percent, or palmar flexion limited in line with the forearm; a 20 percent disability rating is warranted for favorable ankylosis in 20 to 30 degrees dorsiflexion; a 30 percent disability rating is warranted for any other position, except favorable; and a 40 percent disability rating is warranted for unfavorable ankylosis, in any degree of palmar flexion, or with ulnar or radial deviation. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5214 (1993). The terms "unfavorable", "favorable" 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 (1993). Terminology such as "slight", "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 (1993). 1. Entitlement to an increased rating for service-connected degenerative disc herniation, currently evaluated as 10 percent disabling. Service medical records reveal that the appellant injured her back during a fall in May 1990, after a locker fell on her while she was trying to retrieve her keys. A February 1991 medical evaluation reported that the appellant had low back pain which had shifted to lower extremity pain below the knees. She was unable to stand or sit for prolonged periods and was unable to work steadily in an upright position for 40 hours without developing severe sciatica. Examination of the lumbosacral spine demonstrated mild tenderness at the lumbosacral area. There was no evidence of vascular compromise to any extremity. X-rays of the lumbosacral spine demonstrated no specific abnormalities. However, a lumbar myelogram demonstrated an extradural defect at L4-5 with attenuation of the right L5 nerve root. A CT of the lumbar spine demonstrated a diffuse bulge at the L4-5 disc. The examiner diagnosed small L4-5 degenerative disc herniation without significant radiculopathy, but with significant functional disability. A VA examination was conducted in September 1991. The appellant complained of back pain with radiation to the lower extremities and numbness. The examiner observed a normal gait. The appellant had anterior spine flexion to 35 degrees with pain, and lateral flexion to 20 degrees with discomfort on both sides. She was able to sit without discomfort. X-rays of her lumbar spine were negative for abnormalities. The examiner diagnosed a history of degenerated disc at the L4-L5 inter space and noted a decreased sensation of the L5 dermatomes upon neurological examination. Private medical treatment records from the Bailey Seton Hospital dated from May 1991 to July 1992 were submitted. The appellant was primarily treated for gynecological problems. However, May and June 1991 treatment entries reported that she received treatment for her back with minimal relief from pain, after she "jerked herself to prevent a fall, suffering injury to her back" three weeks earlier. A June 1991 radiology report indicated that X-rays of her lumbosacral spine revealed normal height of the vertebral bodies. There was no narrowing of disc spaces, bony destruction, spur formation or fractures, although a minimal tilting of the spine to the right was noted. VA outpatient treatment records dated from May 1993 to September 1993 reported the examiner's impression was lumbar radiculopathy. A December 1993 VA examination of the appellant's back reported no apparent deformity. The appellant had anterior flexion to 75 degrees, lateral flexion to 20 degrees and rotation to 25 degrees. A previous CT scan revealed a disc bulge with no herniation. After careful scrutiny of all of the medical records and evidence of record, the Board is of the opinion that the current manifestations of the appellant's degenerative disc herniation, which include pain with some limitation of motion, approximate the disability picture of characteristic pain on motion which calls for a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5294 (1993). The reported symptomatology of the appellant's degenerative disc herniation, in the opinion of the undersigned, does not approach the level required for a 20 percent disability rating. The Board bases this conclusion on the appellant's entire medical record, with emphasis upon her most recent December 1993 VA examination and outpatient treatment records, which indicate that, although the range of motion of her spine is minimally limited, with some tilting of the spine to the right, and lumbar radiculopathy. 2. Entitlement to an increased rating for service connected residuals of a left wrist fracture, currently evaluated as 10 percent disabling. Service medical records further reveal that the appellant also received a trans-scaphoid perilunate dislocation of her left wrist in May 1990 when a locker fell on her. She had limitation of motion and function of her wrist despite treatment. She received a closed reduction and occupational therapy, but continued to have a reduced range of wrist motion and pain with use. The examiner diagnosed status, post trans-scaphoid perilunate dislocation of the left wrist, currently healed, but painful fracture. A September 1991 VA examination reported that the appellant complained of occasional pain in her left wrist. There was no apparent deformity or swelling and range of motion was within normal limits. X-rays of her left wrist revealed mild degenerative changes, with spurring in the radionavicular region and pointing of the radiostyloid and navicular surfaces noted. The remainder of the bones appeared normal. The examiner noted degenerative changes in the radionavicular joint space. VA outpatient treatment records dated from May 1993 to September 1993 reported that the appellant complained of numbness in the fingers of her left hand. An EMG revealed normal latencies and amplitudes in the radial, median and ulnar nerves, bilaterally. In December 1993 a VA examination was conducted. The appellant complained of numbness in her fingers. She had normal range of motion in all fingers and in her left wrist. She was right handed with no apparent deformity and a normal grasp. After carefully reviewing and evaluating all of the medical evidence, the Board is of the opinion that the current manifestations of the appellant's residuals of a (minor) left wrist fracture, which include complaints of numbness, with no limitation of motion or decreased strength, approximate the level of severity which calls for a 10 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5214 (1993). The reported residuals of the appellant's (minor) left wrist fracture, in the opinion of the undersigned, do not approach the level of impairment required for a 20 percent disability evaluation, as the record, with emphasis upon her most recent December 1993 VA examination, indicates that she has normal range of motion, no deformity, and no decreased strength. 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) (1993). 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 her service-connected degenerative disc herniation nor residuals of a left wrist fracture 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 herniation is denied. An increased disability rating for the appellant's service- connected residuals of a left wrist fracture is denied. C. P. RUSSELL 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.