Citation Nr: 0000733 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 92-10 653 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased evaluation for osteoporosis and spondylosis of the lumbar spine, currently evaluated as 40 percent disabling. 2. Entitlement to an increased evaluation for residuals of fracture of the descending ramus of the left pubic bone and ascending ramus of the left ischium, currently evaluated as 10 percent disabling. 3. Entitlement to a total disability evaluation based on individual unemployability. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The veteran served on active duty from December 1952 to July 1959, and from April 1964 to March 1967. This appeal arises from a January 1992 rating decision of the Department of Veterans Affairs (VA), St. Louis, Missouri, regional office (RO), which confirmed the 10 percent disability rating for residuals of a fracture of the descending ramus of the left pubic bone and ascending ramus of the left ischium, and continued a non compensable rating for osteoporosis of the spine. The Board of Veterans' Appeals (Board) remanded the case in October 1996 for procedural deficiencies and for additional development of the medical record, during which development the RO increased the evaluation of the service connected osteoporosis of the spine to 20 percent disabling from October 1991. A January 1997 rating decision denied the veteran's claim for a total rating based on individual unemployability. In August 1998, the Board again remanded the case for additional development. Subsequently, a June 1999 rating decision increased the evaluation of the service connected back disability to 40 percent for osteoporosis and spondylosis of the lumbar spine. The issue of entitlement to a total disability evaluation based on individual unemployability will be addressed in the REMAND portion of this document. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claims. 2. The veteran's service connected osteoporosis and spondylosis of the lumbar spine is manifested by severe limitation of lumbar spine motion; while muscle spasm has been demonstrated, there are no significant neurological findings shown. 3. The veteran's service connected residuals of fracture of the descending ramus of the left pubic bone and ascending ramus of the left ischium are manifested by complaints of pain, gait problems and a leg length discrepancy of six tenths of an inch. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for osteoporosis and spondylosis of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. Part 4, Codes 5292, 5293 (1999). 2. The criteria for an evaluation in excess of 10 percent for residuals of fracture of the descending ramus of the left pubic bone and ascending ramus of the left ischium have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. Part 4, Codes 5255, 5275 (1999). 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). 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 (1999). Separate diagnostic codes identify the various disabilities. Musculoskeletal disorders are rated with consideration of the resulting functional impairment. 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.42 (1999). See DeLuca v. Brown, 8 Vet. App. 202 (1995). Evaluation of Back Disability The Board granted service connection for osteoporosis of the spine in August 1984. By rating decision of October 1984, the RO assigned a noncompensable evaluation from October 1982. In May 1995, the evaluation was increased to 20 percent from October 1991. A June 1999 rating decision increased the evaluation to 40 percent for osteoporosis and spondylosis of the lumbar spine from October 1991. The veteran contends that he is entitled to a higher evaluation. The veteran's lower back disability is currently evaluated at the maximum 40 percent evaluation under code 5292 based on severe limitation of lumbar spine motion. 38 C.F.R. Part 4, Code 5292 (1999). Under Code 5293, the current 40 percent rating contemplates a severe intervertebral disc syndrome with intermittent relief. A 60 percent evaluation requires a pronounced intervertebral disc syndrome, 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, with little intermittent relief. 38 C.F.R. Part 4, Code 5293 (1999). A VA examination was conducted in October 1998. The veteran reported pain in the lower back at approximately the L4 level. He stated that he was forced to ambulate in a forward flexed position with a cane, which he attributed to his limb length discrepancy. The veteran stated that his ambulation was limited. On examination, there was no marked deformity in the sagittal or coronal plane. Range of motion of the lumbar spine was profoundly limited: extension was 5 degrees; forward flexion was approximately 30 degrees; lateral bending was to 10 degrees bilaterally, with sustained paravertebral spasms; lateral rotation was approximately 5-10 degrees, and limited at the extremes by pain. Straight leg test was negative. Reflexes were 1+ and equal, and there were no pathological reflexes. There was a one-half inch leg length discrepancy. There was mild tenderness to palpation of the posterior spinous process of the lumbosacral spine. X-rays showed moderate lumbosacral spondylosis with facet hypertrophy and anterior osteophyte formation at multiple levels. The diagnosis was lumbosacral spondylosis, which was described as moderately severe. the examiner discounted the previous diagnoses of spina bifida occulta and osteoporosis as either inaccurate or of no clinical significance. The medical evidence of record demonstrates severe limitation of lumbar spine motion as contemplated by the current 40 percent evaluation under code 5292. The Board has considered the veteran's disability under code 5293 which pertains to intervertebral disc syndrome. However, while muscle spasm has been demonstrated, there are no significant neurological findings shown. A pronounced neurological disability is required for a 60 percent evaluation. Clearly, that is not present in this case. Although the veteran does not have intervertebral disc syndrome, if the veteran's back pathology were rated by analogy to that code section, his disability picture would more closely approximate the severe level of intervertebral disc syndrome, with recurring attacks, which is contemplated by the current 40 percent disability rating. 38 C.F.R. Part 4, § 4.7, Code 5293 (1999). If the disability were rated analogous to the evaluation for lumbosacral strain, the veteran is already in receipt of the maximum 40 percent evaluation assignable under that code. See 38 C.F.R. § 4.71a, Diagnostic Code 5295 (1999). The VA examiner indicated that there was no additional limitation of motion beyond that noted on the examination. The Board finds that the veteran's gait problems are adequately compensated by the 40 percent evaluation of his lumbar spine and the 10 percent for the residuals of pelvic fracture. Thus, there is no basis for consideration of a higher evaluation based on functional loss due to pain. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Accordingly, the Board has determined that the veteran is not entitled to an evaluation in excess of 40 percent for his service-connected osteoporosis and spondylosis of the lumbar spine. As the evidence for and against the claim is not in relative equipoise, the reasonable doubt rule does not apply. 38 C.F.R. § 3.102 (1999). Evaluation of Residuals of Fracture, Descending Ramus, Left Pubic Bone, and Ascending Ramus, Left Ischium The veteran suffered fractures of the descending ramus of the left pubic bone and ascending ramus of the left ischium, with resulting pelvic asymmetry, in a truck accident in Germany in August 1955. Service connection was granted in November 1959, and a 20 percent evaluation was assigned from July 1959. An August 1983 rating decision reduced the evaluation to 10 percent, effective from November 1983. The 10 percent evaluation has been continued in subsequent rating actions. The veteran contends that he is entitled to a higher evaluation. The service connected residuals of fracture of the descending ramus of the left pubic bone and ascending ramus of the left ischium are evaluated by analogy to code 5255. The current 10 percent evaluation contemplates slight knee or hip disability. A 20 percent evaluation would require evidence of moderate knee or hip disability. 38 C.F.R. Part 4, Code 5255 (1999). On the VA examination in October 1998, the veteran reported left posterior hip pain as well as gait problems associated with his leg length discrepancy. The veteran stated that he ambulated with a cane and with the left lower extremity slightly rotated. He reported that he could only ambulate for short distances, and he had difficulty climbing stairs. The veteran stated that weather changes and increased use caused flare-ups of his pain. On examination, the hips exhibited internal rotation of approximately 10 degrees, external rotation of 20 degrees, and abduction to 25 degrees, bilaterally. Extremes of abduction and internal rotation of the left hip produced discomfort. External rotation of the left hip with fixation of the right hemipelvis produced discomfort about the left posterior hemipelvis and lower back. There was mild tenderness over the sacroiliac joints. Examination of the pelvis revealed some mild deformity as the palpated anterior superior iliac spine was held at different levels on the two sides. Compression of the iliac wings produced only minimal to moderate discomfort. Posterior compression over the symphysis pubis produced mild discomfort. X-rays demonstrated the previous fractures of the superior inferior pubic rami, and deformities of the left superior inferior pubic rami. The symphysis pubic was healed in an asymmetrical fashion. There appeared to be no obvious disruption of the sacroiliac joints or elsewhere in the pelvic ring. The examiner stated that there was no evidence that the veteran ever sustained a fracture or dislocation of the left hip itself, and there is no suggestion of degenerative disease of the left hip. However, there was residual deformity from the pelvic fracture, including the limb length discrepancy of approximately six tenths of an inch, sufficient to produce a change in gait. The examiner further stated that there was no relationship whatsoever between the veteran's pelvic fracture and hip arthrosis, and no evidence of an affliction of the left hip as opposed to the right. The medical evidence does not demonstrate the moderate knee or hip disability necessary for an increased evaluation under code 5255. In fact, the examiner has discounted any relationship between the veteran's service connected disability and any hip problems. 38 C.F.R. Part 4, Code 5255 (1999). The Board has considered the possibility of assigning a higher evaluation based upon shortening of the lower extremity under code 5275; however, a 20 percent evaluation under that section requires two to two and one- half inch shortening, and the veteran's leg length discrepancy is less than one inch. 38 C.F.R. Part 4, Code 5275 (1999). The VA examiner indicated that there was no additional limitation of motion beyond that noted on the examination. As noted above, the Board finds that the veteran's gait problems are adequately compensated by the 40 percent evaluation of his lumbar spine and the 10 percent for the residuals of pelvic fracture. Thus, there is no basis for consideration of a higher evaluation based on functional loss due to pain. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Accordingly, the Board has determined that the veteran is not entitled to an evaluation in excess of 10 percent for his service-connected residuals of fracture of the descending ramus of the left pubic bone and ascending ramus of the left ischium. As the evidence for and against the claim is not in relative equipoise, the reasonable doubt rule does not apply. 38 C.F.R. § 3.102 (1999). ORDER A evaluation in excess of 40 percent for osteoporosis and spondylosis of the lumbar spine is denied. An evaluation in excess of 10 percent for residuals of fracture of the descending ramus of the left pubic bone and ascending ramus of the left ischium is denied. REMAND The veteran contends that he is unable to work due to his service connected disabilities. In addition to the above noted back and hip disorders, the veteran is also service connected for duodenal ulcer, rated as 20 percent disabling, and high frequency hearing loss, rated as noncompensably disabling. His combined rating is 60 percent. His combined disability rating does not meet the criteria for a total rating under 38 C.F.R. § 4.16(a) (1999). The veteran has a sixth grade education, was previously employed as a factory worker, and has not worked since 1994. A VA examiner's statement dated in March 1999 noted that: The residual of the patient's pelvic fracture could be expected to interfere with the patient's capacity to maintain gainful employment, should the demands of said employment place strain on the lumbar spine. That is, any vocation other than a sedentary one would be likely to be compromised in part by the patient's lumbar spondylosis. As his spondylosis is in part a result of the aforementioned pelvic fracture and resulting limb length discrepancy, it is considered more likely than not that the patient's capacity to maintain gainful employment was compromised by this injury. 38 C.F.R. § 4.16(b) states that it is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. The RO determined that a referral to the Director was not appropriate in this case. However, the supplemental statement of the case issued in June 1999 did not provide an adequate explanation to the veteran of the reasons for that decision in light of the VA examiner's comments. The regulations state that the Statement of the Case must be complete enough to allow the appellant to present written and/or oral arguments before the Board of Veterans' Appeals. It must contain: (a) A summary of the evidence in the case relating to the issue or issues with which the appellant or representative has expressed disagreement; (b) A summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination; and (c) The determination of the agency of original jurisdiction on each issue and the reasons for each such determination with respect to which disagreement has been expressed. 38 C.F.R. § 19.29 (1999). In order to ensure due process of the veteran's claim, the case must be returned to the RO for the following: The RO should again consider the veteran's claim under the provisions of 38 C.F.R. § 4.16(b) (1999). If it is determined that a referral to the Director, Compensation and Pension Service, is not appropriate, a supplemental statement of the case including full reasons and bases for the RO's determination must be issued. Following the above, if the outcome remains unfavorable to the veteran, he and his representative should be given a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration. 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. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals