Citation Nr: 0002501 Decision Date: 02/01/00 Archive Date: 02/10/00 DOCKET NO. 98-02 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increased rating for adhesive pericarditis status post pericardial window, currently evaluated as 30 percent disabling. 2. Entitlement to an increased rating for lumbosacral strain with a history of spondylolisthesis, currently evaluated as 20 percent disabling. 3. Entitlement to an increased rating for duodenal ulcer, hiatal hernia, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD E. W. Koennecke, Associate Counsel INTRODUCTION The appellant served on active duty from November 1962 to March 1967, and from February 1969 to February 1984. This case comes before the Board of Veteran's Appeals (the Board) on appeal from a January 1997 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). Preliminary review of the record reveals that the RO expressly considered referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999) in a December 1997 rating decision. This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked inference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The U. S. Court of Appeals for Veterans Claims (known as the United States Court of Veteran's Appeals prior to March 1, 1999) (hereinafter Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). History This appeal stems from a January 1997 rating decision in which the RO confirmed and continued a 20 percent evaluation for lumbosacral strain with a history of spondylolisthesis; and a 10 percent evaluation for duodenal ulcer/hiatal hernia. The claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). This finding is based on the appellant's contentions that his disabilities are more disabling than currently evaluated. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The RO has met its duty to assist the appellant in the development of his claim. under 38 U.S.C.A. § 5107 (West 1991). Records were obtained from all identified treatment sources including the VA Medical Center. A VA examination was conducted in November 1996. Social Security Administration records were included in the file. A personal hearing was conducted in July 1997 and at that time the hearing officer discussed the available and necessary evidence with the appellant and his accredited representative thus fulfilling any obligation under 38 C.F.R. § 3.103 (1999). Furthermore, there is no indication from the appellant or his representative that there is outstanding evidence which would be relevant to this claim. Disability evaluations are determined by the application of a schedule of rating which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate diagnostic codes identify the various disabilities. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1999); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While evaluation of a service-connected disability requires review of the appellant's medical history, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Therefore, although the Board has reviewed all the evidence of record, it finds that the most probative evidence is that which has been developed immediately prior to and during the pendency of the claim on appeal. When all the evidence is assembled, the determination must then be made as to 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. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The appellant and his wife testified before the RO in July 1997, however his wife offered no evidence regarding the claims on appeal. He was still being treated for his gastrointestinal problems and the medication fairly well controlled the problem. A change in his medication had brought upon vertigo and so he returned to his other medication. He takes the medication twice a day. He still has reflux. His back was still a problem for him and he had just completed about 6 months of physical therapy for it. He was no longer dragging his left side like he had been doing and he could lift his left leg like he could not before. He still had to be extremely careful about bending over. When it went out he could not even get out of bed, dress himself, bathe himself or go to the toilet without assistance. He almost always required a cane and always carried it with him because of his back and vertigo problems. He has been told by his doctor not to work. [A total rating for compensation based on individual unemployability was granted in a December 1997 rating decision]. In his Appeal to the Board of Veterans' Appeals, VA From-9, the appellant contended that the hiatal hernia caused persistent epigastric distress with regurgitation and pyrosis. With regard to his back, he contended that he had only intermittent relief from the symptoms and during exacerbations his symptoms were definitely severe. The problem limited his activities and it did not take much exertion for his back to get much worse. VA Medical Center records from September 1995 documents the appellant's report that he was at a stable baseline in regard to chronic back pain and left-sided hemiparesis. His left arm and leg pain was sometimes an ache and at times a shooting pain. He had used a wheelchair-scooter for three years and could only walk with a cane. On examination he was able to transfer out of the scooter easily with the use of the cane. His abdomen was soft, non-tender, non-distended and with positive bowel sounds. Left arm motor strength was decreased without pronator drift. He had questionable decreased sensation to pinprick and vibration on the left lower extremity. Sensation was otherwise intact. Extremity pain and left hemiparesis was diagnosed. He was currently stable. On December 22, 1995 the appellant complained of pain in his lower back that shot down his legs and paralyzed him for 72 hours. He was left with residual weakness more so on the left. He was using a scooter but was able to get on the examination table with a cane. On examination, there was no vertebral tenderness. His abdomen was soft, nontender, nondistended and bowel sounds were heard. Straight leg raising test was negative for shooting pain bilaterally. The examiner questioned a functional component to the radiating back pain with weakness. On December 28, 1995 the appellant's complaint consisted predominantly of left-sided weakness. With twisting injuries he had periods of paralysis in the lower extremities bilaterally. He reported decreased sensation diffusely. He had no bowel or bladder changes. The last period of paralysis was a few weeks prior. On examination his central nervous system was normal. There was normal tone. Sensation to sharp and dull was intact bilaterally. There was questionable weakness in the left deltoid but on repeat testing the amount of weakness changed, from 3 to 5-. He said he could not pull up his left foot but walked without footdrop. Sensation to position and vibration was normal bilaterally in both lower extremities. There was no pain with palpation of the lumbar spine. Questionable weakness with subjective numbness that was probably functional was diagnosed. In February 1996 he reported for follow-up on his chronic back pain. His muscle strength and pain levels were stable. Magnetic resonance imaging of the lumbar spine revealed a small left paracentral protrusion at L5-S1 with slight narrowing noted of the left L5 lateral recess. There was disc desiccation at L4-5 and L5-S1. He was using a scooter but was about to walk from the hall to the examination room. His abdomen was soft, nontender and nondistended. In May 1996 he complained of chronic low back pain with several episodes of total left leg paralysis and left-sided weakness. Electromyographic studies showed no abnormality. Magnetic resonance imaging revealed a small left paraspinal disc bulge in the lumbar spine. Notes from later in May 1996 noted that the appellant was in a wheelchair but could walk with a cane. On examination, his abdomen was soft, nontender, nondistended and bowel sounds were heard. Chronic back pain was diagnosed. In July 1996 he complained of muscle spasm while reaching. There was strong pain and weakness with relief after medication. His abdomen was benign. His examination was unchanged from previous examinations. Later in July he was seen for complaints of left buttock and posterior thigh pain. He stated that his muscles felt tight. He had no left lower extremity numbness or tingling, no bowel or bladder incontinence. He denied a flare-up of back pain recently. He was minimally active and used a motorized wheelchair outside of his home. He ambulated in the home and did no regular stretching or back exercises. On examination he was using the motorized wheelchair but moved easily from the wheelchair to the examination table. There were no anatomic abnormalities in his back or lower extremities. There was no spinal or paraspinal tenderness, no left buttock tenderness, no greater trochanter or groin tenderness. His left hamstring was tender and tight. Straight leg raising caused hamstring pain but there was no back pain on either side. Left hamstring tightness secondary to immobility was diagnosed. On a separate examination in July 1996 the appellant reported low back pain for 25 years with progressive left-sided weakness. He reported 3 episodes of "complete paralysis" of the left side in the prior 18 months. Left-sides weakness and sensory changes of unknown etiology were indicated. There was no central disease process revealed on magnetic resonance imaging. It was unlikely that there was peripheral disease with normal muscle bulk and muscle tone and symptoms for 4 years. Records from October 1996 reported pain radiating to his left great toe. Sensation was normal, straight leg raising was positive at 40 degrees on the left and 50 degrees on the right. Motor testing was decreased on the left. Disc herniation at L5-S1 was suspected. A VA examination was conducted in November 1996. He complained of a lack of stamina and left-sided numbness with diaphoresis and nausea. He reported constant chest pain that increased with exertion. On examination he looked healthy. Idiopathic pericarditis was diagnosed several years prior, but the examiner opined that the pains across his chest were most likely not related to any cardiac causes. An esophogram was conducted to rule-out esophagitis and gastroesophageal reflux disease. The appellant had reported choking occasionally on liquids and solids. The test revealed a transiently present small sliding hiatal hernia without evidence of reflux. There was evidence of tertiary contractions in the distal third of the esophagus that suggested there was probably some occasional reflux. Other laboratory testing was normal His chest pain was said to be most likely due to the reflux, not cardiac origins. In December 1996 he had 5/5 motor strength on the right and left lower extremity and he was grossly intact on his sensory and coordination examination. His lumbar spine magnetic resonance imaging showed a mild paracentral disk bulge at L4- 5 that resulted in a mild narrowing of the left L5 lateral recess. This was possibly compromising the transversing left L5 nerve root. Physical therapy was recommended. In January 1997 notes, the appellant reported a 20 year history of chronic back pain and a 10 year history of upper and lower extremity left-sided weakness. An electromyogram was consistent with L5 radiculopathy. Physical therapy was helping greatly. He had been using a scooter for 4 years. His back pain was slowly worsening with flare-ups becoming more frequent, however the physical therapy was making him more functional. On examination he walked with a normal gait using a cane. He removed his shoes and socks easily. Strength was 5/5 on the left side, reflexes were 2+ and 1+ in the lower extremities. Straight leg raising test was negative and his hip examination was normal. His back was nontender and there was good range of motion. Low back pain with L5 radiculopathy was diagnosed. In March 1997 he reported decreased pain and increased strength with physical therapy. His abdomen was normal. In June 1997 the appellant reported a dramatic improvement in his quality of life after physical therapy. In July 1997, he was doing physical therapy 3 times a week and it was helping a great deal with his low back pain, sciatica, as well as his left-sided weakness. He was less dependent on the scooter. Previous testing had demonstrated L5 radiculopathy. Strength was 5/5 on the right and 4+/5 on the left upper and lower extremity, possibly 5/5. Reflexes were 2+ and down going. Sensation was intact on the right and the left. The appellant was limping slightly on the left leg when he walked. REMAND This appeal stems from a January 1997 rating decision in which the RO confirmed and continued a 30 percent evaluation for adhesive pericarditis status post pericardial window. The appellant is currently evaluated under Diagnostic Code 7003 for pericardial adhesions. The rating criteria for rating diseases of the cardiovascular system was revised in January 1998 and August 1998, after the December 1997 Statement of the Case was issued. The appellant has not been furnished with the revised rating criteria, and the VA examination of record is inadequate for rating purposes under the new rating criteria. The Board has reviewed the evidence and has been unable to locate an examination report that fully complies with the guidance established by the Court when evaluating orthopedic impairments or the digestive tract. Accordingly, this claim is REMANDED for the following action: 1. The RO should schedule the appellant for a VA examination. The examiner should be afforded the opportunity to review the claims folder prior to the examination. The examiner should conduct an examination consistent with the revised rating criteria for Diagnostic Code 7003, including cardiac workload assessment reported in METs with indicated onset of dyspnea, fatigue, angina, dizziness or syncope, and left ventricular ejection fraction findings. 2. The RO should schedule an orthopedic examination. The claims file must be made available to the examiner. It is requested that the examination report of the lumbar spine be sufficiently complete so as to comply with DeLuca. The examiner should address the criteria contained in diagnostic codes 5292, 5293 and 5295. The report of examination should include a detailed account of all manifestations of lumbar spine pathology found to be present. Special attention should be given to the presence or absence of pain, stating at what point in the range of motion any pain occurs and at what point pain prohibits further motion. The examiner should describe any limitation of motion, instability and weakness, lack of normal endurance, functional loss due to pain, pain on use, weakened movement, excess fatigability, and incoordination. If there is no pain, weakness, excess fatigability or incoordination, the facts must be noted in the report. The examiner must obtain active and passive range of motion (in degrees), state if there is any limitation of function and describe it, and state the normal range of motion. All positive and negative findings must be recorded. The veteran's neurologic function should be addressed. If complaints are inconsistent with findings, that should be noted. 3. The RO should obtain an examination report of the digestive tract that corresponds to the rating criteria. 4. The General Counsel, in representing VA before the Court of Veteran's Appeals, has noted that the RO has duties. Pursuant to 38 C.F.R. § 3.655, when a claimant fails to report for an examination in scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the claimant pursuing an original, reopened or claim for an increase without good cause fails to report for examination, the claim will be denied. However, the Secretary must show a lack of good cause for failing to report. Further, VA has a duty to fully inform the veteran of the consequences of the failure to undergo the scheduled examination. The RO must comply with all notification requirements regarding the duty to report and the failure to report for examination. The Remand serves as notice of the regulation. 5. The RO should then evaluate the appellant's entitlement to an increased disability evaluation for adhesive pericarditis under the applicable provisions of 38 C.F.R. § 4.104; Diagnostic Code 7003 (1999) as amended. If upon completion of the above action, the claim remains denied, the case should be returned to the Board after compliance with all requisite appellate procedures. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. H. N. SCHWARTZ Member, Board of Veterans' Appeals