Citation Nr: 0003131 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 98-08 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased evaluation for cervical myofascial pain syndrome, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for degenerative disc disease at L5-S1, currently evaluated as 10 percent disabling. 3. Entitlement to a total disability evaluation based on individual employability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Richard A. Cohn, Associate Counsel INTRODUCTION The veteran served on active duty from December 1963 to November 1966 and January 1968 to December 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO) which continued 10 percent disability ratings for cervical myofascial pain syndrome, for degenerative disc disease at L5-S1 and for post-traumatic osteoarthritis of the right knee, and denied entitlement to a TDIU. The Board notes that, although the veteran initiated an appeal pertaining to evaluation of his post-traumatic osteoarthritis of the right knee, he did not perfect an appeal on that issue. Therefore, that issue is not before the Board at this time. FINDINGS OF FACT 1. The record includes all evidence necessary for the equitable disposition of this appeal. 2. The veteran's service-connected cervical myofascial pain syndrome is manifested by symptoms that most closely approximate severe limitation of motion of the cervical spine including additional impairment due to pain. 3. The veteran's service-connected degenerative disc disease at L5-S1 is manifested by symptoms that most closely approximate moderate intervertebral disc syndrome with recurring attacks including additional impairment due to pain. 4. The veteran has completed 12 years of school, with additional special training as a barber/cosmetologist and as a food service worker; he has 20 years work experience as a barber/cosmetologist and as a food service worker; and he last worked in 1995. 5. The veteran is service connected for cervical myofascial pain syndrome, degenerative disc disease at L5-S1, post- traumatic osteoarthritis of the right knee and hypertension, each individually evaluated as 10 percent disabling. 6. The veteran's service-connected disabilities are not sufficiently severe as to preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation 30 percent for cervical myofascial pain syndrome have been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5021 (1999). 2. The criteria for an evaluation of 20 percent for degenerative disc disease at L5-S1 have been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5293 (1999). 3. A total rating based on individual unemployability due to service-connected disabilities is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.340, 4.16(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased ratings The veteran contends that he is entitled to a higher evaluations for his service-connected cervical myofascial pain syndrome and for degenerative disc disease at L5-S1 because the disorders are more disabling than contemplated by their current 10 percent ratings. He asserts that his substantial pain upon movement and standing has materially affected his life. A claimant for benefits under a law administered by VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). Because an allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating, see Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992), the Board finds that the veteran's claim for an increased rating based upon an alleged increase in the severity of his service-connected disability is well grounded. Once a claimant presents a well-grounded claim, VA has a duty to assist the claimant in developing facts which are pertinent to the claim. Id. The Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issue on appeal is of record. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) to the veteran's current symptomatology. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4 (1999). If two evaluations are potentially applicable the higher evaluation will be assigned if the disability appears to approximate more nearly the criteria required for that rating. 38 C.F.R. § 4.7. A disability may require reratings in accordance with changes in a veteran's condition. It is therefore essential to consider a disability in the context of the entire recorded history when determining the level of current impairment. 38 C.F.R. § 4.1. Nevertheless, the current level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A disability of the musculoskeletal system is primarily a damage- or infection-caused inability of a body part to move with normal excursion, strength, speed, coordination and endurance. A rating examination must fully describe anatomical damage and functional loss in each of these areas. A functional loss may result from absence of a bone, joint, muscle or associated structure, or to a deformity, adhesion, defective innervation or other pathology, or it may be due to pain, provided claimed pain is supported by evidence of pathology and visible behavior of the claimant while undertaking the motion. Weakness is as effective an indicator of disability as limitation of motion and a body part which becomes painful on use is seriously disabled. 38 C.F.R. §§ 4.40, 4.45. In addition to applying schedular criteria, VA may consider granting a higher rating when the veteran is rated under a code that contemplates limitation of motion and additional functional loss due to pain or weakness is demonstrated. DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). A. Cervical myofascial pain syndrome The veteran's cervical myofascial pain syndrome was service connected in May 1985 and assigned 10 percent disability ratings under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5021. Under DC 5021, disability due to myositis is rated based upon limitation of motion of the affected body part, in this case, the cervical spine. Under DC 5290, pertaining to limitation of motion of the cervical spine, a 30 percent rating is warranted for a severe decrease, a 20 percent rating is warranted for a moderate decrease and a 10 percent rating is warranted for a slight decrease in range of motion. A report of a March 1985 VA examination noted the veteran's report of having injured his neck during an in-service traffic accident. The injury caused pain in the left neck area radiating to the left shoulder and left arm. Physical examination disclosed no spinal tenderness to palpation, or pain, normal upper extremity strength and motion and a cervical spine range of motion of 60 degrees forward flexion, 50 degrees backward extension, 40 degrees lateral flexion and 55 degrees of rotation without pain. X-rays disclosed congenital spina bifida occulta, normal lordosis and no other cervical spine abnormality. Service department records show that the veteran was treated for several disorders including back pain between November 1984 and August 1992. The veteran reiterated his complaint of radiating neck pain to a VA physician who examined him in November 1992. The examiner found no abnormalities of the forearms, hands or cervical spine, which had a range of motion of 50 degrees forward flexion, 50 degrees backward extension, 30 degrees lateral flexion and 80 degrees of bilateral rotation. X-rays disclosed early degenerative changes at C6 and the examiner diagnosed cervical strain. During a February 1997 VA spinal examination, the veteran reported continuing pain in the left trapezius muscle area occasionally radiating down to his left thumb and that he was no longer able to work because of back pain. Objective findings included left proximal trapezius muscle tenderness but no pain on motion and no left arm or hand abnormality. Cervical spine range of motion was 48 degrees forward flexion, 50 degrees backward extension, 38 degrees left lateral flexion, 35 degrees right lateral flexion, 80 degrees left rotation and 62 degrees right rotation. The diagnosis was osteoarthritis of the neck with intermittent pain to the left thumb. Contemporaneous X-rays disclosed spina bifida occulta, malalignment of the cervical spine compatible with muscle spasm and/or strain and minimal osteoarthritis. A report of a December 1998 VA X-ray examination also showed evidence of spina bifida occulta and minimal osteoarthritis and described alignment of the cervical spine as satisfactory. A contemporaneous VA peripheral nerves examination disclosed decreased range of motion and tender neck muscles but no spinous process pain, atrophy, pronator drift, loss of muscle tone or objective evidence of radiculopathy. During a contemporaneous spinal examination, the veteran informed the examiner that his neck pain, including muscle spasms, was increasing, especially in cold and damp weather, and that it reached 7 to 9 on a ten-point scale on a good day. He stated that any kind of repetitive work with his hands aggravated the pain. He also stated that his back pain had increased to the extent that he could no longer work. Objective findings included mild cervical spine kyphosis, muscle and spinal tenderness and range of motion limited by pain to 45 degrees forward flexion, 11 degrees backward extension, 20 degrees left lateral flexion, 30 degrees right lateral flexion, 30 degrees left rotation and 42 degrees right rotation. The diagnosis of evidence of spina bifida occulta and minimal degenerative change was also based on X-rays. At a November 1998 personal hearing, the veteran testified that continuing neck pain that occasionally affected his left hand grip made it difficult for him to continue his occupation as a barber. A steadily decreasing range of motion of the veteran's cervical spine is evident from the VA examination reports. Although no examiner has characterized the severity of the limitation of motion, the Board finds that, at least as of the December 1998 examination, the veteran experienced a moderate level of motion decrease. Under DC 5290, a moderate level of cervical spine limitation of motion is consistent with a 20 percent disability rating. In addition, the Board notes the veteran's complaints of virtually constant pain and medical evidence confirming cervical spine motion limited by pain. In this regard, the Board acknowledges that functional loss due to pain supported by adequate pathology, is recognized as resulting in disability. The Board recognizes that there are situations in which the application of 38 C.F.R. §§ 4.40, 4.45, or 4.59 (1999) is warranted to evaluate possible functional loss due to pain, or weakened movement, excess fatigability, incoordination, or pain on movement of the veteran's joints when the rating code under which the veteran is rated does not contemplate these factors. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. The Board observes that there is evidence of neck pain and resulting additional functional loss in this case such that the Board finds that the demonstrated symptomatology more nearly approximates that of severe spinal disability as contemplated by DC 5290. Accordingly, the Board concludes that, with application of the provisions of 38 C.F.R. § 4.40, a 30 percent disability evaluation is warranted. See 38 C.F.R. §§ 4.3, 4.7 (1999). B. Degenerative disc disease of L5-S1 The veteran's degenerative disc disease at L5-S1 was service connected in May 1985 and assigned a 10 percent disability rating under 38 C.F.R. § 4.71a, DC 5003. In July 1997 the RO continued the evaluation under DC 5293. Under DC 5293, pertaining to intervertebral disc syndrome, a 60 percent rating is warranted for a pronounced disability 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; a 40 percent rating is warranted for severe disability including recurring attacks and intermittent relief; a 20 percent rating is warranted for moderate disability with recurring attacks; and a 10 percent rating is warranted for mild disability and a cured, postoperative disorder is noncompensable. A report of a March 1985 VA examination noted the veteran's report of first having low back pain in-service in early 1983. Physical examination disclosed normal posture, gait, leg lift, heel and toe walking and no tenderness, with range of motion of 90 degrees forward flexion, 35 degrees backward extension, 40 degrees lateral flexion and 35 degrees of rotation without pain. X-rays disclosed narrowing of the intervertebral space between L5-L6 and an otherwise normal lumbar spine. Service department records show that the veteran was treated for several disorders, including lower back pain, between November 1984 and August 1992. In an October 1992 letter, an Air Force staff physician who had treated the physician since his retirement stated that the veteran's chronic low back pain was secondary to degenerative joint disease which stressed the veteran's back too much for him to continue his occupation as a barber. The report of the veteran's November 1992 VA examination noted findings similar to the March 1985 examination in all material respects except that range of motion had decreased to 80 degrees forward flexion, 30 degrees backward extension, 30 degrees lateral flexion and 45 degrees of rotation. X- rays disclosed a normal lumbosacral spine including disc spaces. A November 1996 report of a magnetic resonance imaging (MRI) examination of the veteran's lumbar spine disclosed L5-S1 disc herniation and left lumbar stenosis at L4-L5. During VA examinations in February 1997, the veteran reported continuing low back pain aggravated by protracted standing and sitting without changing position. Wearing a back brace while working had alleviated some of the pain. Objective findings included normal posture and gait, mid- and low- lumbar tenderness and range of motion of 85 degrees forward flexion, 35 degrees backward extension, 28 degrees left lateral flexion, 30 degrees right lateral flexion and 55 degrees of left rotation and 60 degrees right rotation, all without pain. The diagnosis was degenerative disc disease of the lower back. Contemporaneous X-rays showed a normal lumbar spine except for minimal disc space narrowing at L5 to S1. The veteran told VA examiners who examined him in December 1998 that his continuous lower back pain was never less intense than a 9 on a ten-point scale, which severely affected his capacity to work and enjoy routine life activities. He also stated that he continued to wear a back brace, that the pain was aggravated by prolonged standing, sitting, bending and lifting anything weighing more than 10 pounds and that his pain from all sources limited his sleep to about three hours a night. The veteran also asserted that he experienced muscle spasms in his lower back. Objective findings included loss of some lumbar lordosis, lumbar tenderness, slow and antalgic gait and lumbar range of motion of 40 degrees forward flexion, 20 degrees backward extension, 35 degrees left lateral flexion, 30 degrees right lateral flexion and 20 degrees bilateral rotation, all limited by pain, as was his ability to heel and toe walk. The spinal examiner noted that the veteran's diagnosed lower back degenerative disc disease, disc herniation and lumbar spinal stenosis caused his intermittent episodes of numbness and tingling associated with lumbar pain. Diagnoses, including those derived from contemporaneous X-rays, were degenerative disc disease at L5- S1, sclerosis involving both sacroiliac joints compatible with minimal osteoarthritis, and chronic back pain without radiculopathy. The X-ray report described the veteran's lumbar spine abnormality as minor. Also associated with the claims file are letters from a former employer and two prospective employers. In February 1997 the veteran's former manager wrote that deterioration of the veteran's physical condition, including his neck and lower back, rendered him no longer capable of working as a barber and hair stylist after July 1995. May 1998 letters from two managers who had wanted to hire the veteran for their food service businesses stated that they did not do so because of his health and medical problems. At the November 1998 hearing, the veteran testified about the severity of his lower back pain and its debilitating effect upon his daily life. He stated that he often was required to wear a flexible brace to support his lower back, sometimes even in bed, and to use a TENS unit for lower back pain. He also stated that he could not stand for more than an hour without pain that often radiated down his left leg and that once or twice a week his back pain and spasms were so severe as to leave him unable to get out of bed in the morning. The record contains no medical evidence that symptoms associated with the veteran's degenerative disc disorder include neurological impairment, objectively confirmed muscle spasms or severe or moderate attacks. Furthermore, from 1992 through 1998 VA X-ray and MRI examinations have disclosed no more than minor abnormalities in the veteran's lumbosacral spine. Therefore, it is arguable whether demonstrated symptomatology as set forth here is indicative of a level of disability sufficient to support an evaluation in excess of a 10 percent rating under DC 5293. However, the Board also notes the veteran's complaints of virtually constant pain and medical evidence confirming motion of the lumbar spine limited by pain. For reasons articulated in part I. A of this decision, see DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (1998), the Board finds that evidence of low back pain and resulting additional functional loss demonstrated in this case more nearly approximates moderate intervertebral disc disability as contemplated by DC 5293. Accordingly, the Board concludes that, with application of the provisions of 38 C.F.R. § 4.40, a 20 percent disability evaluation is warranted. See 38 C.F.R. §§ 4.3, 4.7. The Board notes that as to the evaluation of the veteran's neck and lower back disorders this decision is based solely upon Rating Schedule provisions. The Board finds that the record does not establish that schedular criteria are inadequate to evaluate the veteran's disabilities. There is no showing that the disabilities under consideration have interfered with employment beyond that contemplated in the assigned evaluation or necessitated frequent periods of hospitalization so as to render the schedular standards inadequate and to warrant assignment of an extra-schedular evaluation. In fact, the increased disability evaluations granted pursuant to this decision recognize that the veteran has substantial back disabilities and considers the industrial impairment noted in the record. Thus, in the absence of an exceptional or unusual disability picture, the Board finds that that remand for compliance with the procedures for assignment of an extra-schedular evaluation is not warranted. See Bagwell v. Brown, 9 Vet. App. 157, 158-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). II. TDIU The veteran contends that he is unable to continue to work as a result of his service-connected cervical myofascial pain syndrome, degenerative disc disease at L5-S1, post-traumatic osteoarthritis of the right knee and hypertension, because he is no longer able to stand for periods long enough to allow him to function effectively on the job. The Board finds that the claim is well grounded, see 38 U.S.C.A. § 5107(a), because it is not implausible when the evidence is viewed in the light most favorable to the veteran. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board is also satisfied that the facts are properly and sufficiently developed to the extent possible. A veteran is entitled to TDIU upon showing a service- connected disability so severe as to render it impossible for an average person to follow a substantially gainful occupation. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 3.340, 3.341, 4.16 (1999). VA determination of unemployability in each case turns upon practical consideration of whether employment is realistically within a veteran's physical and mental capabilities. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). VA determination of whether service-connected disabilities alone are of sufficient severity to produce unemployability, see Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993), may include consideration of the veteran's education, special training, and previous work experience but not his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (1999). A veteran may establish entitlement to a TDIU for disabilities rated at less than 100 percent provided: 1) service-connected disabilities preclude the veteran from securing or following a substantially gainful occupation; 2) if there is only one such disability, it is rated at least 60 percent disabling, and; 3) if there are two or more such disabilities, at least one is rated at least 40 percent disabling and there is sufficient additional disability to bring the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a) (1999). A veteran who fails to meet the percentage standards also may establish entitlement to a TDIU on an extraschedular basis. Id. In this case, it is clear that the veteran does not meet minimum TDIU percentage requirements because none of his four service-connected disabilities is rated at least 40 percent disabling. The Board's decision increasing the disability evaluations to 30 percent for a cervical spine disorder and to 20 percent for degenerative disc disease is discussed above. An evaluation of 10 percent is in effect for hypertension, and the claims file includes no medical evidence that the veteran's diastolic blood pressure is predominantly at least 120. Therefore a 40 percent disability rating for hypertension is not warranted under DC 7101. Similarly, an evaluation of 10 percent is in effect for post-traumatic osteoarthritis of the right knee, and there is no medical evidence of right knee osteoarthritis limiting right leg extension to 30 degrees. Therefore a 40 percent disability rating is not warranted under DCs 5010 and 5261. The veteran is not entitled to TDIU on an extraschedular basis. The veteran's occupational background and educational attainment are, the Board finds, satisfactory for employment purposes. According to his TDIU application, he is a high school graduate with two years of college and training as a food service manager and as a barber/cosmetologist. The veteran has had extensive employment experience. The Board acknowledges the October 1992 letter from a treating physician, the February 1997 letter from a former manager and the two May 1998 letters from prospective employers, all discussed above, regarding the veteran's disabilities. However, none of these statements suggest that the veteran could not successfully pursue an occupation not requiring constant standing. Indeed, the veteran himself testified at his November 1998 hearing that he had not explored more sedentary employment possibilities and that the Social Security Administration had denied his claim for disability benefits on a finding that he is not totally disabled. In light of the foregoing, the Board finds that there is insufficient objective evidence upon which to conclude that the veteran's service-connected disorders render him unemployable, and the preponderance of the evidence is against such a conclusion. Therefore, the veteran is not entitled to TDIU on an extraschedular basis. See 38 C.F.R. § 4.16(b). ORDER An evaluation of 30 percent for cervical myofascial pain syndrome is granted, subject to governing regulations concerning monetary awards. An evaluation of 20 percent for degenerative disc disease at L5-S1 is granted, subject to governing regulations concerning monetary awards. A total evaluation based on individual unemployability due to service-connected disabilities is denied. JAMES A. FROST Acting Member, Board of Veterans' Appeals