BVA9500408 DOCKET NO. 93-06 462 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased disability evaluation for multiple sclerosis, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.W. Engle, Counsel INTRODUCTION The appellant served on active duty from January 1963 to July 1968. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a decision in January 1992 by the Houston, Texas, Department of Veterans Appeals Regional Office (VARO). The Board notes that the appellant's representative, in the informal presentation dated in August 1993, raised the issue of entitlement to a total rating for compensation purposes based upon individual unemployability. Since this issue has not been developed, adjudicated or certified for appeal it is referred to VARO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that his service-connected multiple sclerosis has increased in severity and warrants a higher disability evaluation. 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 evidence of record does not support an increased disability evaluation for multiple sclerosis. FINDING OF FACT The appellant's service-connected multiple sclerosis is manifested by mild gait impairment, slightly decreased sensation in the upper and lower distal extremities, and mildly abnormal reflexes in the lower extremities. CONCLUSION OF LAW The schedular criteria for a disability evaluation in excess of 30 percent for multiple sclerosis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, Diagnostic Code 8018 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant has submitted 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). The Board notes that the minimum evaluation for multiple sclerosis, with ascertainable residuals, is 30 percent, with higher evaluations assignable, in proportion to the noted impairment of motor, sensory or mental function. 38 C.F.R. § 4.124a (1993). For specific disabilities established by a diagnosis which has not been listed in the Schedule for Rating Disabilities, the diagnosed condition will be evaluated by analogy to a closely related disease or injury. 38 C.F.R. § 4.20 (1993). Consideration is given to the various manifestations of the disease, (e.g., complete or partial loss of use of one or more extremities, disturbance of gait, or bowel or bladder impairment, etc.) by referring to the appropriate section(s) of the Schedule of Rating Disabilities. 38 C.F.R. § 4.120 (1993). Determination as to the presence of residuals not capable of objective verification, (e.g., headaches, dizziness, fatigability, etc.) must by approached on the basis of the diagnosis recorded; subjective residuals will be accepted when consistent with the disease and not more likely attributable to another disease or no disease at all. 38 C.F.R. § 4.124a, Diagnostic Code 8018 (1993). With respect to pyramiding, 38 C.F.R. § 4.14 (1993) provides that: [T]he evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. ... Both the use of manifestations not resulting from service-connected disease or injury in establishing the service- connected evaluation and the evaluation of the same manifestation under different diagnoses are to be avoided. It is clear that there are potentially many manifestations attributable to multiple sclerosis; however, in view of 38 C.F.R. § 4.14, and its prohibition against "pyramiding" of disabilities, care must be taken in the selection of appropriate diagnostic codes to rate the manifestations of the disease established by the record as producing disability. We further note that multiple sclerosis has been provided with a minimum disability rating of 30 percent pursuant to the VA's Schedule for Rating Disabilities. Should the manifestations representative of the disability not exceed 30 percent, the minimum rating of 30 percent will be assigned. The Board has noted the current presence of symptoms objectively identified within the medical evidence of record as attributable to multiple sclerosis, including gait impairment, decreased sensation, abnormal reflexes in the lower extremities and a neurogenic bladder. However, after review of the evidence of record, including an examination report from Dr. Gronseth dated in April 1991, VA outpatient treatment reports dated from 1989 to 1992 and VA examination reports dated in January and September 1992, the Board concludes that the appellant's multiple sclerosis is appropriately evaluated at the 30 percent level. While Dr. Gronseth noted in April 1991 that appellant's major problems centered around severe ataxia and painful leg cramps from a myelopathy and that due to these problems the appellant was essentially completely disabled, subsequent examination of the appellant by VA in January and September 1992 did not reflect that the appellant's multiple sclerosis symptomatology had persisted at the same level of severity as reported by Dr. Gronseth. In fact, while the appellant's gait and posture were noted to be unusual in that he walked with a spastic gait but did not limp on VA examination in January 1992, it was further noted that his cranial nerves II through XII were intact, his extremities compared favorably, bilaterally, he had good muscle strength in all extremities and there was no evidence of muscle atrophy. It was further noted that he performed coordination tests slowly but accurately. Significant abnormal findings at that time included reported decreased sensation distally in both hands and feet and deep tendon reflexes of 4+ in the lower extremities with sustained clonus at both ankles. Subsequent VA examination in September 1992 noted findings which were essentially consistent with those noted in January 1992. The appellant's mental status was considered to be normal, his speech and language function appeared normal and funduscopic examination did not show any unequivocal optic nerve changes. While some hesitation was noted in his eye movements there was no internuclear paraplegia. His facial strength and lower cranial nerves were normal and he did not exhibit any drift and there was no asymmetry in motor function in his arms or legs. The examiner noted that there was no clear cut long tract pattern of weakness and no muscle atrophy was found. The deep tendon reflexes were brisk throughout with sustained ankle clonus on both sides and the appellant's gait was considered to be mildly unsteady and slow. Furthermore, when moving around, the appellant occasionally had single jerks of his body which were accentuated with unusual tasks. It was further noted that when doing finger- nose-finger coordination testing the appellant was accurate but his movements were occasionally interrupted by small jerks which were myoclonic in nature. The appellant reported decreased sensation in the legs compared to the hands and in the hands compared to the face and decreased sensation to pin was noted in the T10 region. There were no cremasteric reflexes present. It was further noted that the appellant reported urinary difficulty which was considered to be consistent with myelopathy due to multiple sclerosis. The examiner indicated that the appellant's impairment resulting from the multiple sclerosis was "certainly partial" and that while the appellant has mild ataxia and mild incoordination, he functions relatively well through these abnormalities. He further noted that he could not tell any substantial difference between the current examination and previous examinations recorded in the chart. Upper Extremities The appellant's symptoms with respect to his upper extremities are noted to be sensory only, with only slightly decreased sensation reported in the hands. Otherwise, the upper extremities are without further sensory involvement or disabling impairment of function in movement or strength. However, the record further reflects that deep tendon reflexes have been between 2+ and 3+ and symmetrical on examination since April 1991. The mild incoordination is noted clinically but the function remains good. The appropriate diagnostic code is 8513 for all radicular groups, and a mild impairment may be rated at 20 percent in the major and minor extremities. Since the appellant reports only mildly decreased sensation of the hands, with clinical findings of slightly abnormal but symmetrical deep tendon reflexes in the upper extremities, the Board concludes that these findings do not meet the minimum rating for either extremity. Indeed, with only mild sensory findings in the hands, over several examinations, the impairment in our view does not more nearly approximate the mild degree required for the minimum rating. 38 C.F.R. § 4.7 (1993). Accordingly, the identified disability associated with each of the upper extremities is considered to be noncompensable. 38 C.F.R. § 4.31 (1993). Lower Extremities The appellant's symptoms compatible with gait disturbance and sensory deficits in the lower extremities may be rated analogous to diseases of the peripheral nerves under diagnostic codes 8520 through 8525. Peripheral nerve disease involving the sciatic nerve with incomplete paralysis of mild degree is rated 10 percent disabling; moderate impairment is rated 20 percent; moderately severe impairment is rated 40 percent disabling; severe impairment, with marked muscular atrophy is rated 60 percent disabling and complete paralysis where the foot dangles and drops, no active movement is possible of the muscles below the knee, flexion of the knee is weakened or (very rarely) lost, is rated as 80 percent disabling. 38 C.F.R. Part 4, Code 8520 (1993). The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of lost or impaired function substantially less than complete paralysis. When the involvement is wholly sensory, the rating should be mild, or at the most, moderate in degree of disability. 38 C.F.R. § 4.124a (1993). The objective medical evidence shows varied findings ranging from severe ataxia in April 1991 to mild ataxia in September 1992. Otherwise, the appellant consistently has demonstrated good muscle strength, with no asymmetry in motor function and no clear cut long tract pattern of weakness. However, sensory examination of the lower extremities has consistently revealed decreased sensation distally in the feet with abnormal deep tendon reflexes associated with sustained clonus at both ankles. These findings are considered to be consistent with a mild incomplete paralysis and a 10 percent rating is for application for each lower extremity. Bowel and Bladder The appellant has reported complaints of poor bowel and bladder control. However, the objective medical evidence of record does not reflect any findings of bowel control problems. The record does reflect that the appellant has been diagnosed with a neurogenic bladder secondary to multiple sclerosis. VA outpatient treatment reports reflect that in March 1992, an intervenous pyelogram and a cystoscopy were conducted which revealed no evidence of mechanical obstruction or other abnormality; however, the appellant continued to report complaints of post-voiding residuals. The appellant's symptoms of a neurogenic bladder may be rated analogous to a voiding dysfunction. Disabilities of the genitourinary system are evaluated pursuant to 38 C.F.R. § 4.115(a) (1993) which includes provisions for voiding dysfunction, which in turn are rated as urine leakage, frequency or obstructed voiding. Urinary frequency with a daytime voiding interval between two and three hours or awakening to void two times per night warrants a 10 percent disability evaluation. Obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year is noncompensable. Marked obstructive symptomatology manifested by hesitancy, slow or weak stream, decreased force of stream with any one or combination of the following: Post void residuals greater than 150 cc., uroflowmetry showing less than 10cc per second, recurrent urinary tract infections secondary to obstruction or stricture disease requiring periodic dilatation every 2 to 3 months warrant a 10 percent disability evaluation. Voiding dysfunction manifested by urinary incontinence requiring the wearing of absorbent material which must be changed less than 2 times per day warrants a 20 percent disability evaluation. The record does not reflect that the appellant is required to undergo dilatation or that he experiences urinary incontinence which requires the wearing of absorbent material which must be changed less than 2 times per day. Furthermore, with respect to urinary frequency, the appellant reported in March 1992 that he experienced nocturia only 1 time each night. He further reported that these symptoms had been stable over the past twenty years. The appellant's urinary complaints essentially consist of an inability to completely empty his bladder with no additional symptoms. Accordingly, when evaluated in light of the above criteria, these findings are considered to be consistent with a noncompensable disability evaluation for the appellant's neurogenic bladder. Combined Disability Evaluation After review of the evidence of record, the appellant's disabilities have been assigned the following ratings: Upper extremities, noncompensable; lower extremities, 10 percent for the right and 10 percent for the left; and bladder disorder, noncompensable. Pursuant to 38 C.F.R. § 4.25(b) (1993) the combined disability evaluation for multiple sclerosis is 20 percent. However, since the manifestations representative of the disability do not exceed 30 percent, the minimum rating of 30 percent will be assigned. 38 C.F.R. § 4.124a, Diagnostic Code 8018 (1993). Given the nature of multiple sclerosis, and its characteristic periods of exacerbations and remissions, the findings noted by Dr. Gronseth in April 1991 which included severe ataxia are considered to be representative of a period of exacerbation of the appellant's multiple sclerosis symptoms and not a permanent increase in severity, particularly when viewed in light of the subsequent findings noted on VA examinations in January and September 1992 which documented symptoms characterized by the examining VA physician in September 1992 as mild. We have considered the provisions of 38 C.F.R. § 3.321(b)(1) (1993) regarding the assignment of extraschedular evaluations. We find this provision to be inapplicable to the case before us because the disability picture is not exceptional or unusual, with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Hence, referral of this matter by the agency of original jurisdiction was not necessary in this case. Accordingly, entitlement to an increased disability evaluation for multiple sclerosis is not warranted. ORDER A disability evaluation in excess of 30 percent for multiple sclerosis is denied. 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.