BVA9502895 DOCKET NO. 92- 05 682 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. An increased disability rating for intervertebral disc syndrome of the lumbosacral spine, with headaches, currently evaluated as 20 percent disabling. 2. An increased disability rating for functional bowel disorder, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Barry F. Bohan, Counsel INTRODUCTION The appellant served on active duty in the United States Air Force from September 1949 to September 1969. In July 1974, service connection was granted for intervertebral disc syndrome of the lumbosacral spine, with headaches. A 20 percent disability rating was assigned. Service connection was also granted for functional bowel disorder, and a noncompensable disability rating was assigned. This appeal arose from an October 1988 decision of the Department of Veterans Affairs Regional Office in Denver, Colorado which confirmed and continued the assigned disability ratings for the two service-connected disorders. Jurisdiction of this case was transferred to the VA Regional Office in Phoenix, Arizona, later to the VA Regional Office in Reno, Nevada and more recently back to the Phoenix Regional Office. In a decision in March 1990, a hearing officer at the Reno Regional Office granted the appellant a 10 percent disability rating for functional bowel disorder. In September 1990, the appellant requested service connection for inflammatory polymyositis. The case was initially received and docketed at the Board in April 1992. In January 1993, the Board remanded this case so that certain issues could be clarified and so that additional medical evidence could be obtained. This was done, and in April 1994, service connection was granted for polymyositis of both upper and both lower extremities and for dysthymia secondary to service- connected intervertebral disc syndrome. A combined 100 percent disability rating was assigned. In addition, entitlement to special monthly compensation, entitlement to special housing assistance and entitlement to automobile and adaptive equipment was established. The appellant's claims folders were returned to the Board in November 1994 so that the remaining two issues could be adjudicated. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that his service-connected disabilities are of sufficient severity as to warrant increased disability ratings. 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 folders. 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 increased ratings should be denied for intervertebral disc syndrome of the lumbosacral spine, with headaches, and for functional bowel disorder. FINDINGS OF FACT 1. The appellant's service-connected intervertebral disc syndrome of the lumbosacral spine, with headaches is currently moderate, and is manifested by attacks of pain and limitation of motion, with accompanying headaches. 2. The appellant's service-connected functional bowel disorder is currently manifested by frequent diarrhea with mild abdominal tenderness. CONCLUSIONS OF LAW 1. The appellant's service-connected intervertebral disc syndrome of the lumbosacral spine, with headaches is no more than 20 percent disabling according to the schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1993). 2. The appellant's service-connected functional bowel disorder is no more than 10 percent disabling according to the schedular criteria. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.20, 4.114 , Diagnostic Code 7319 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is seeking increased disability ratings for his service-connected intervertebral disc syndrome of the lumbosacral spine, with headaches, and for his service-connected functional bowel disorder. 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). Furthermore, it is believed that this case has been adequately developed for appellate purposes by VARO and that the Board may therefore proceed to a disposition on the merits. In evaluating the appellant's request for increased ratings, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1991). In so doing, it is the Board's responsibility to weigh the evidence before it. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In the interest of clarity, the Board will separately discuss the issues presented in this appeal. With respect to each issue, the Board will first review the appellant's relevant medical history. 38 C.F.R. §§ 4.1, 4.41 (1993); Peyton v. Derwinski, 1 Vet.App. 282 (1991). The appellant's entire medical history is extremely complex, and involves long-standing complaints of numerous symptoms, many of which were and are ill-defined and without an adequately explained physiologic basis. What follows are those portions of the medical history which relate specifically to or have a bearing on the two service-connected disorders currently under consideration. 1. An increased disability rating for intervertebral disc syndrome of the lumbosacral spine, with headaches, currently evaluated as 20 percent disabling. Medical history Degenerative disc disease of the appellant's lumbosacral spine with associated headaches was diagnosed during service. During a VA examination in May 1974, the appellant reported low back pain, which radiated into his left thigh from time to time. He stated that he did not have headaches unless his back was hurting. X- rays revealed slight narrowing of the L2-3 interspace. The diagnosis was intervertebral disc syndrome of the lumbosacral spine. The examiner also commented that the appellant blamed his unemployment on his back problem and that the appellant's subjective complaints were beyond what could be expected from the physical findings. During a VA examination in June 1980, the appellant reported that not much had changed since the 1974 examination. Another VA examination of the appellant was completed in August 1988. He complained of severe back pain. X-rays revealed discogenic spondylosis from L2 through L5. Another VA examination of the appellant was completed in August 1991. The appellant reported chronic low back pain which tended to radiate into both lower extremities. X-rays revealed degenerative changes at L2-3 which were suggestive of a ruptured disk. On physical examination, the appellant was noted to have been wearing a lumbosacral corset and walked with the aid of a cane. Diffuse tenderness was noted over the lumbosacral spine. There was limitation of motion, secondary to "perceived" pain. The appellant was described as being independent with respect to dressing and undressing and moving on and off the examining table. Psychological testing of the appellant was completed in July 1993. It was observed that the appellant's responses to questions on the Minnesota Multiphasic Personality Inventory may have involved exaggeration. Interpretation of the responses indicated that the appellant's answers were consistent with persons who manifest a history of vague physical complaints, are markedly preoccupied with their health, and feel victimized by the world around them. An accompanying psychiatric examination resulted in a diagnosis of dysthymia. A VA orthopedic examination of the appellant was completed in May 1994. The examiner noted that the appellant had a "somewhat bizarre history" and presented with multiple medical problems, including a diagnosis of polymyositis. X-rays revealed a moderate degree of osteoarthropathy of the lumbar vertebra. The appellant arrived in a wheelchair and complained of generalized muscle weakness. He was wearing a lumbosacral corset. On physical examination, straight leg raising was negative. Back motion was carried out reasonably well. In the "Diagnoses" section of the report, the examiner stated that the appellant "does have at this time what appears to be better function than he was willing to admit....He does not have any obvious high grade radiculopathy from a discogenic or central spinal origin....The patient demonstrates a number of psychosocial changes, dependency, probably depression, and a definite somatization dependency or somatiform reaction." A VA neurological examination was also performed in May 1994. The appellant required the assistance of his wife in getting on the examining table. He had multiple complaints involving virtually all organ systems. Although the appellant reported inability to walk, the examiner observed that power, mass and tone of all muscle groups appeared physiologic. The examiner stated: "this is an extremely puzzling examination because it does not satisfactorily explain subjectively why [the appellant] was in a wheelchair, using...a lumbar back brace....There are some functional features on this examination which may harken back to previous psychiatric examinations." Analysis The schedular criteria call for a 20 percent disability rating for moderate intervertebral disc syndrome, marked by recurring attacks. A 40 percent disability rating is warranted for severe intervertebral disc syndrome, marked by recurring attacks, with intermittent relief. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1993). The words "moderate" and "severe" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just". 38 C.F.R. 4.6 (1993). It should also be noted that use of terminology such as "moderate" by VA examiners and others, as during the May 1994 VA orthopedic examination, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. 4.2, 4.6 (1993). The Board's evaluation of the appellant's service-connected low back disorder is complicated by other related physical and psychiatric disorders which, as has been indicated by a number of examiners, appear to be interrelated. These disorders include service-connected polymyositis and service-connected dysthymia. Caution should be exercised in guarding against pyramiding disabilities. 38 C.F.R. § 4.14 (1993). There is also the well- documented problem of seeming exaggeration of symptoms on the part of the appellant. The medical evidence of record indicates that the appellant has moderate degenerative changes of his lumbar spine which is productive of attacks of pain and limitation of motion, with accompanying headaches. This disability picture is consistent with the currently assigned 20 percent disability rating. An increased disability rating is therefore denied. The Board bases its decision in large measure on the recent reports of VA examining physicians, in particular those of the orthopedic and neurological examiners in May 1994, which did not describe back pathology which is consistent with a higher disability rating. The reports of both of those examinations indicate that the examining physicians were extremely thorough, carefully reviewed the appellant's lengthy medical history, and thoughtfully identified the problems associated with his complex disability picture. Guerrieri v. Brown, 4 Vet.App. 467, 473 (1993). Therefore, the preponderance of the evidence is against a grant of the higher evaluation. 2. An increased disability rating for functional bowel disorder, currently evaluated as 10 percent disabling. Medical history During service, the appellant complained of abdominal pain with loose bowel movements. During the May 1974 VA physical examination, the appellant reported three to five loose bowel movements daily for the previous eight or nine years. He was 68 inches tall and weighed 174 pounds. He stated that his weight had not decreased. Physical examination was unremarkable. A barium enema revealed no abnormalities. The diagnosis was functional bowel syndrome by history, manifested by subjective complaints. During the VA examination in June 1980, the appellant reported that not much had changed since the 1974 examination. During the August 1988 VA physical examination, the appellant reported five to six watery bowel movements daily, along with a feeling of abdominal cramping. On physical examination, his height was recorded as 68 inches and his weight was 211 pounds. His abdomen was mildly tender in the lower quadrants. Bowel sounds were somewhat hyperactive. The examination was otherwise normal with respect to the gastrointestinal tract. The diagnosis was functional bowel syndrome with diarrhea. During the August 1991 physical examination, the appellant reported nearly daily diarrhea over the preceding 34 years. He denied ever being constipated. He described his appetite as poor. On physical examination, his weight was recorded as 210 pounds. On physical examination, there was mild abdominal tenderness to palpation. X-rays of the upper gastrointestinal tract were essentially normal. The examiner stated that the appellant was in relatively good nutritional status and that the etiology of his bowel complaints appeared to be functional. Of record is the report of a July 1993 VA psychiatric examination of the appellant. The examiner had access to the appellant's medical records. The appellant, then age 63, was described by the examiner as obese, with no evidence of malnourishment. The examiner commented that the diagnosis of functional bowel syndrome suggested that the appellant may have had an emotional condition which was contributing to his diarrhea. The diagnosis was dysthymic disorder. During the May 1994 VA examination, the appellant reported frequent diarrhea, with incontinence of stool approximately once weekly. He was 5'8" in height and weighed 220 pounds. Analysis Functional bowel disorder is rated by analogy to irritable colon syndrome. 38 C.F.R. § 4.20 (1993). The schedular criteria call for a 10 percent disability rating for moderate disability, marked by frequent episodes of bowel disturbance with abdominal distress. A 30 percent disability rating is warranted for severe disability, marked by diarrhea, or by alternating diarrhea and constipation, with more or less constant abdominal distress. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.114, Diagnostic Code 7319 (1993). After having carefully considered the evidence of record, the Board believes that the appellant's service-connected functional bowel disorder is currently manifested by frequent diarrhea with mild abdominal tenderness. The appellant is well-nourished. The medical evidence described above does not support an increased disability rating, since the appellant does not appear to be undernourished and is not in constant abdominal distress. The Board cannot say that the appellant's gastrointestinal pathology is severe, based on the evidence of record. The preponderance of the evidence is against a grant of an increased rating. ORDER An increased disability rating for intervertebral disc syndrome of the lumbosacral spine, with headaches is denied. An increased disability rating for functional bowel disorder 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.