BVA9500661 DOCKET NO. 93-05 815 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an increased rating for residuals of a fractured left transverse process L5 through L4, currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating for post operative fractured right femoral neck, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD P. Greif, Associate Counsel INTRODUCTION The veteran had active military service from January 1965 to January 1969. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 1991 rating decision from the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA). In that rating decision the RO, among other things, denied increased ratings for residuals of a fractured left transverse process L5 through L4 (low back disorder), rated as 20 percent disabling, and for post operative fractured right femoral neck (right hip disorder) rated as 10 percent disabling. A RO hearing was held in March 1992. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that the RO committed error in not granting increased ratings for low back disorder and right hip disorder. Specifically, the veteran asserts that his low back disorder causes excruciating low back pain, muscle spasms and left lower extremity numbness that leads to the leg giving out. In regards to the right hip disorder, the veteran contends that has "on and off pain that has been increasing over the years." 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 veteran's claim for an increased rating for right hip disorder, but the evidence supports a 40 percent rating, and not in excess thereof, for his low back disorder. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's right hip disorder is primarily manifested by slight impairment which includes some limitation of motion and minimal degenerative arthritic changes; however, moderate impairment of the right hip including malunion of the femur is not shown. 3. The veteran's low back disorder is primarily manifested by increasing pain, L5 - S1 disc degeneration, right and left side radiculopathy, and limitation of motion. 4. The veteran's service-connected low back disorder results in no more than severe impairment of the low back. 5. The veteran's disabilities do not present an exceptional or unusual disability picture rendering impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The schedular criteria for a rating in excess of 10 percent for post operative fractured right femoral neck have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, § 4.71a, including Diagnostic Code 5255 (1993). 2. The schedular criteria for a 40 percent rating, and not in excess thereof, for residuals of a fractured left transverse process L5 through L4 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, § 4.71a, including Diagnostic Codes 5285, 5292, 5293 (1993). 3. The failure of the RO to consider or to document its consideration of an extraschedular rating is no more than harmless error. 38 C.F.R. § 3.321(b)(1) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented claims which are plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The Board is cognizant of the fact that the veteran was awarded Social Security Disability Benefits in 1984 or 1985. However, the VA has obtained and associated with the claims file the medical records considered by the Social Security Administration in granting benefits to the veteran. All the pertinent records are on file and the issues on appeal can be decided on the merits. I. Increased Rating for Right Hip Disorder Service medical records show that the veteran suffered a fracture of the right femur neck in February 1966. It was noted that while the veteran was repairing a truck the truck axle landed on him and fractured his right femur neck. He was discharged from the hospital to light duty and eventually to full duty in September 1966. The separation examination report listed no abnormalities of the right hip. On an August 1969 VA orthopedic examination report the examiner reported flexion, extension, abduction, and adduction as full and not productive of pain. He noted that on internal and external rotation of the right hip the veteran complained of aching. X- rays of the right femur revealed some localized demineralization, but no apparent deformity. The final diagnosis included old fractured right femoral neck. Based upon the service medical record findings and private and VA examination reports, the RO, in a September 1969 rating decision granted service connection for, among other things, fracture right femoral neck, post operative and assigned a 10 percent rating under Diagnostic Code 5255 of the Schedule for Rating Disabilities, 38 C.F.R. Part 4, § 4.71a (1993). The 10 percent evaluation was thereafter continued until 1991, at which time the veteran sought an increased rating for the right hip disorder. On a March 1991 VA examination report the examiner reported right hip flexion 0 to 100 degrees. He noted that the veteran experienced right hip pain on extremes of motion and that lower extremity strength and sensory tests were normal. In April 1991 the RO denied the veteran's claim for an increased rating on the grounds that the veteran's disorder did not result in moderate or marked impairment of right hip motion or other symptoms that would warrant an increased rating. The 10 percent rating was continued. 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 (West 1991); 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The current 10 percent rating under Diagnostic Code 5255 contemplates malunion of the femur with slight knee or hip disability. The next higher rating, 20 percent, requires malunion of the femur with moderate knee or hip disability. A January 1989 private medical report from Dr. L. M. Strayer, M.D. indicated that the veteran complained of pain with right hip motion and difficulty sleeping because of back and right hip pain. The doctor noted that range of motion of the right hip was 10 degrees on flexion contracture and forward flexion to 90 degrees. He reported that the veteran had no rotation of his right hip, 10 degrees of abduction and scant adduction. Straight leg raising was not tolerated beyond 30-40 degrees because of right hip discomfort. X-rays of the right hip were normal except evidence of an old fracture with pin removal. A January 1989 private medical report from Dr. P. B. McAvoy revealed that the veteran was hospitalized for severe right hip pain. On examination of the extremities the examiner reported that the veteran was able to flex his right hip upon his thorax very slowly and with pain. He noted that the veteran had pain with external rotation, good peripheral and femoral pulses. He indicated that the veteran had no edema of the leg, no discernible redness or swelling of the right hip area, and no sensory loss. Dr. McAvoy reported that the right hip was very tender to touch with intermittent exacerbation of the pain. The final diagnosis included acute right hip pain, etiology uncertain. The veteran submitted VA outpatient reports dated between May 1990 and March 1992. Such reports, however, pertain to the veteran's low back and lung disorders. The veteran submitted a statement from Diane Aschenbach, P.T. in March 1992. She reported that the veteran had been receiving physical therapy treatment at the Theda Clark Regional Medical Center. The veteran was primarily seen for his low back disorder. In any event, the therapist recommended that the veteran be referred to a multidisciplinary pain management program or start an independent home exercise program. The veteran was accorded a VA examination in April 1992. At that time the veteran complained of right hip pain when walking. The examiner noted that the veteran had a pulmonary condition requiring continuing oxygen therapy which limited his ambulation. During physical examination the examiner reported that the deep tendon reflexes at the knee were normal and that the veteran was able to extend his legs at the knees. He indicated that it was impossible to test the veteran's right hip joint. The final diagnosis included residuals of postoperative state fracture of the right femoral neck with deformity of the right femoral neck. A VA doctor submitted a June 1992 statement describing the veteran's symptoms associated with his various disorders. She included a diagnosis of mild degenerative joint disease of the right hip. In July 1992 the veteran was accorded a VA examination. He complained that he was "wheelchair bound" and that attempts to walk increased the right hip and back pain. The examiner reported that the veteran could stand by himself and walk 10 to 12 feet with the aid of leaning on a desk on two or three occasions. He noted that attempts to have the veteran flex or rotate the right leg and hip were impossible to bring into conformity. The final diagnosis included postoperative state of fracture to the right femoral neck. In determining whether a higher rating is warranted for disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The Board acknowledges that the veteran experiences some pain associated with the service-connected right hip disorder. However, the pain is contemplated under the current rating. As noted above, the veteran is currently receiving a 10 percent disability evaluation on the basis that his right hip disorder does not result in malunion of the femur with moderate knee or hip disability such as to warrant a higher evaluation under Diagnostic Code 5255. The private examiner's who conducted examinations in January 1989 stated that the veteran had acute right hip pain, but that the etiology of the pain was unknown. It was reported that the veteran had a good femoral pulse, good peripheral pulses, no edema of the leg, and no redness or swelling discernible of the right hip area. Although the private examiner's noted that the right hip was very tender to touch with intermittent exacerbation of pain, the overall symptomatology associated with right hip disorder does not result in malunion of the femur with moderate knee or hip disability. As previously noted the VA examiner's diagnosed residuals of postoperative fracture of the right femoral neck, but they did not report a moderate knee or hip disability such as to warrant an increased rating. In weighing the evidence of record pertaining to the veteran's right hip disorder, the Board considered the available VA examination and outpatient reports, private medical reports, and a transcript of the hearing testimony, in light of the veteran's contentions. Accordingly, the 10 rating currently assigned for the right hip disorder accurately reflects the degree of disability produced as a result of the service-connected residuals of fracture right femoral neck, including complaints of pain. The regular schedular standards are shown to be adequate to compensate the veteran's disability. This is not an exceptional case where the regular schedular standards are shown to be inadequate. It does not present an exceptional or unusual disability picture 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. 38 C.F.R. § 3.321(b)(1) (1993). II. Increased Rating For Low Back Disorder Service medical records indicate that the veteran fractured the transverse processes of L1 through L4 in February 1966. The separation examination report listed the spine as normal. On an August 1969 VA examination report the examiner noted that the veteran had normal spinal contour with no hypertrophy, atrophy, spasticity, or tenderness to pressure. He reported normal range of motion of the back. Based upon the service medical record findings and the VA examination report, the RO, in a September 1969 rating decision granted service connection for fracture of the left transverse processes, L1 through L4 and assigned a noncompensable rating under Diagnostic Code 5285 of the Schedule for Rating Disabilities, 38 C.F.R. Part 4, § 4.71a (1993). The noncompensable evaluation was thereafter continued until 1990, at which time the veteran sought an increased rating for the low back disorder. On private medical reports from Theda Clark Regional Medical Center dated between January and February 1989 the examiner reported that the lumbar spine and pelvis showed first degree spondylolisthesis of L5 and S1 with associated degenerative changes of the facet joints at that level. VA outpatient reports dated between March 1976 and February 1990 revealed that the veteran received treatment for right hip and chronic lung disorders and occasional treatment for symptomatology associated with his low back disorder. The symptoms associated with the low back disorder appeared to increase in severity over the years. EMG and nerve conduction studies performed in October 1989 revealed mild irritation of L5 or S1 nerve root or of the sciatic nerve. A January 1990 outpatient report indicated that the veteran received a local anesthetic injection in the low back area and was to receive an epidural steroid injection. On a February 1990 report the provisional diagnosis was low back pain with radiculopathy and the veteran was instructed on the use of TENS unit for relief of back pain. On a February 1990 private medical report the veteran complained of chronic back spasms and noted that the VA gave him a local anesthetic injection and was considering an epidural steroid injection. In March 1990 the RO granted the veteran's claim for an increased rating for the low back disorder on the grounds that the veteran's disorder resulted in increased severity and radiculopathy which warranted a 20 percent rating. The veteran was accorded a VA examination in March 1991. He complained of extreme low back pain and right leg numbness. On physical examination of the back the examiner noted that the veteran could touch his toes on forward bending. He reported that the veteran had increased pain with extension, positive tender lumbar region diffusely, and negative straight leg raising bilaterally. X-rays revealed Grade 1 spondylolisthesis, a pars defect, and disc space narrowing. The final diagnosis included Grade 1 spondylolisthesis with chronic low back pain. In the April 1991 rating decision the RO, among other things, denied the veteran's claim for an increased rating for low back disorder on the grounds that severe limitation of lumbar motion was not shown. The 20 percent disability rating was continued and is still in effect. 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 (West 1991); 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The veteran is currently evaluated under Diagnostic Code 5285. The minimum schedular rating under Code 5285 is 60 percent; however Code 5285 refers to other Diagnostic Codes for less severe residuals of a fractured vertebra. The veteran's current 20 percent disability rating appears to be rated as slight limitation of motion of the lumber spine under Diagnostic Code 5292. In order for a 40 percent evaluation to be awarded, the evidence must demonstrate that the veteran has either: severe limitation of motion under 38 C.F.R. Part 4, Diagnostic Code 5292 (1993); severe intervertebral disc syndrome with recurring attacks with intermittent relief, 38 C.F.R. Part 4, Diagnostic Code 5293 (1993); severe sacroiliac injury and weakness 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, or some manifestations with abnormal ability on forced motion, (38 C.F.R. Part 4, Diagnostic Code 5295 (1993)). It is noted that under 38 C.F.R. Part 4, Diagnostic Code 5285, an additional 10 percent rating for demonstrable deformity of vertebral body can be awarded to the veteran, giving him a 30 percent rating under the Code. The veteran submitted VA outpatient reports dated between August 1990 and March 1992. On a December 1991 report the examiner noted that the veteran had chronic low back pain requiring physical therapy several times a week. On a February 1992 report the veteran complained of increased low back pain radiating down both legs. As previously noted, the veteran submitted a statement from Diane Aschenbach, P.T. in March 1992. She reported that the veteran had been receiving treatment at the Theda Clark Regional Medical Center physical therapy department for his low back disorder. In April 1992 the veteran was accorded a special VA orthopedic examination. During the examination the veteran complained that his low back disorder had become progressively more painful over the years. He stated that because of his low back disorder and other disorders he was unable to move outside of a wheelchair. The physical examination revealed that the veteran was "wheelchair bound." The examiner noted that the veteran could only walk a few steps. He reported that it was impossible to test the veteran's lower back. The final diagnosis included residuals of the left transverse process of L4 to L5 and minor degree spondylolisthesis at L5. A VA doctor submitted a June 1992 statement describing the veteran's symptoms associated with his various disorders. She noted that the veteran had difficulty with prolonged standing or sitting. Her diagnosis included mild L5, S1 radiculopathy and L5 S1 spondylolisthesis. In July 1992 the veteran was accorded a VA examination. He complained of low back pain which was aggravated by walking. The examiner noted that the veteran stood by himself and walked 10 to 12 feet with the aid of leaning on a desk several times. The examiner noted that the veteran had intense pain to pressure over both paralumbar musculatures. He reported that the veteran could flex forward to 60 degrees and flex laterally to the right to 0 degrees and to the left to 10 degrees. He indicated that the veteran could not extend his lower back. On examination of the lower extremities for deep tendon reflexes the examiner reported that the veteran's had a 2 plus patellar reflex on the left and 3 plus response on the right. X-rays revealed a minor degree of spondylolisthesis of L5. The final diagnosis included a possible spondylolysis, residuals of old lumbar transverse process fractures, and disc degeneration at L5-S1. In August 1992 the veteran was hospitalized for a period of neurologic observation. He complained of excruciating low back pain, muscle spasms, and left lower extremity numbness that leads to the leg giving out. The examiner reported that the veteran's motor examination revealed normal tone and bulk. He noted that the veteran's lower extremities revealed significant pain with any type of resistance throughout. The examiner reported that the veteran could ambulate behind a chair without assistance and without difficulty. The sensory examination showed that the veteran had decrease to light touch in the L2-3 dermatome on the left and decrease to pinprick in the L2-3 and L4-5 dermatone on the left. The veteran's deep tendon reflexes were 2 plus throughout and his toes were down going. A MRI of the lumbar spine revealed a mild to moderate disc degeneration in the L5-S1 disc and a bilateral pars defect at L5 with a Grade 1 spondylolisthesis. The MRI showed no signs of bulging disc nor foraminal encroachment. EMG and nerve conduction velocity tests revealed a mild chronic L2-3 radiculopathy on the right with some activity, a very mild inactive L4-5 radiculopathy on the right, mild chronic right S1 radiculopathy with some activity, and no evidence of plexopathy. Tests conducted on the left side revealed normal nerve conduction, chronic inactive L5 radiculopathy, and chronic active left S1 and L4 radiculopathy. On a December 1992 rating decision the RO continued the 20 percent evaluation for the low back disorder. It is the defined and consistently applied policy of the VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 (1993). In addition, where there is question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. Part 4, § 4.7 (1993). In determining whether a higher rating is warranted for disease or disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In weighing the evidence of record in this case, the Board considered the service medical records, VA examination and private medical reports, as well as all of the evidence of record, in light of the veteran's contentions. The findings included intense pain to pressure over the paralumbar muscles, a bilateral pars defect at L5 with a Grade 1 spondylolisthesis, severe limitation of motion, degenerative disc disease and chronic radiculopathy. These medical findings, along with the veteran's credible history of increasing back pain, support the veteran's claim for an increased rating to 40 percent, but not higher. Although the most recent VA examiner reported that the veteran had no bulging disc or foraminal encroachment, the veteran had chronic radiculopathy appropriate to site of diseased disc, deep tendon reflexes plus 2 throughout, severe limitation of lumbar motion, and increasing low back pain. A 60 percent evaluation under Code 5293 is not warranted as there are not persistent symptoms compatible with sciatic neuropathy and unfavorable ankylosis of the lumbar spine is not shown so as to warrant a 50 percent evaluation under Code 5289. Further, there is no objective showing of a demonstrable deformity of a lumbar vertebral body which could support an award of an additional 10 percent rating under Code 5285 or findings which are of sufficient severity to require the wearing of a jury mast. The Board, after considering the reported findings of the VA and private examiners, in light of the veteran's contentions, finds that the evidence presents a disability picture that more nearly approximates the higher rating of 40 percent under Diagnostic Codes 5292 and 5293. In any event by virtue of the benefit of the doubt doctrine, the law dictates that the veteran should win. Therefore, the Board finds that the veteran should be granted an increased rating. Accordingly, an increased rating for residuals of a fractured left transverse process L5 through L4 not higher than 40 percent is warranted. The regular schedular standards are shown to be adequate to compensate the veteran's disability. This is not an exceptional case where the regular schedular standards are shown to be inadequate. It does not present an exceptional or unusual disability picture 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. 38 C.F.R. § 3.321(b)(1) (1993). ORDER 1. Entitlement to an increased rating for post operative fractured right femoral neck is denied. 2. Entitlement to an increased evaluation of 40 percent, but not higher, for residuals of a fractured left transverse process L5 through L4 is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. JOAQUIN AGUAYO-PERELES 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.