Citation Nr: 0007441 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-06 934A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating for low back pain with herniated discs, currently evaluated as 60 percent disabling. 2. Entitlement to an increased rating for chronic sinusitis, currently evaluated as 10 percent disabling. 3. Entitlement to a total rating for compensation based on individual unemployability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and co-worker ATTORNEY FOR THE BOARD E. W. Koennecke, Associate Counsel INTRODUCTION The appellant served on active duty from August 1979 to March 1990. This case comes before the Board of Veteran's Appeals (the Board) on appeal from February and December 1998 rating decisions of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal for increased schedular ratings for service-connected low back and sinusitis disabilities. 2. The service connected back disorder results in no more than pronounced disc disability. 3. There is no evidence of vertebral fracture or complete bony fixation of the spine. 4. The veteran has 6 to 8 non-incapacitating episodes of sinusitis yearly. CONCLUSIONS OF LAW 1. The criteria for a schedular rating in excess of 60 percent for the service-connected low back pain with herniated discs have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including § 4.7 and Code 5285, 5286, 5292 (1999). 2. The criteria for a 30 percent rating for chronic sinusitis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including § 4.7 and Code 6513 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, his assertion that his service-connected disabilities have worsened raises plausible claims. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). All relevant facts have been properly developed. VA has completed its duty to assist the veteran in the development of his increased rating claims. See 38 U.S.C.A. § 5107(a). The veteran has not reported that any other pertinent evidence might be available. See Epps v. Brown, 9 Vet. App. 341, 344 (1996). In considering the severity of a disability, the Board has reviewed the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2 (1999). The current rating is based on the current extent of the disability, so this discussion will focus on the recent evidence, which is the most probative source of information as to the current extent of the disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Service-connected disabilities are rated in accordance with a schedule of ratings which are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Low Back The current 60 percent rating is the highest assignable under Diagnostic Code 5293, for an intervertebral disc syndrome. It contemplates a pronounced disability with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief. 38 C.F.R. Part 4, Code 5293 (1999). To assign a higher rating under the rating schedule would require the use of other rating codes. Most of the other rating criteria provide lesser ratings for back symptoms. 38 C.F.R. § 4.71a (1999). An additional 10 percent rating could be assigned if there was a fracture of a vertebral body with residual demonstrable deformity. 38 C.F.R. Part 4, Code 5285 (1999). A 100 percent rating could be assigned for complete bony fixation (ankylosis) of the spine at an unfavorable angle, with marked deformity. 38 C.F.R. Part 4, Code 5286 (1999). The record in this case shows that the veteran's low back disorder has been extensively investigated with X-ray studies and other tests, such as magnetic resonance imaging. The results disclosed arthritic (degenerative) changes; however, there is no evidence of vertebral fracture residuals or complete bony fixation (ankylosis) of the spine at an unfavorable angle, with marked deformity. The lay testimony describes pain and other symptomatology consistent with a pronounced disc disability; however, the testimony does not present competent evidence of the vertebral changes required for a higher rating. There is no basis in the rating schedule for a higher evaluation for the veteran's low back manifestations, Consequently, the claim for a higher schedular rating must be denied. Chronic Sinusitis The representative has argued that the recent examination findings were inadequate for rating purposes and this issue should be remanded for further examination. However, the Board's review shows the examination did in fact address the rating criteria. As of October 7, 1996, sinusitis will be rated as 50 percent disabling following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. A 30 percent rating requires three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 10 percent rating will be assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A noncompensable rating will be assigned where the sinusitis is detected by X-ray only. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. Part 4, Codes 6510 to 6514, effective October 7, 1996 (61 Fed. Reg. 46720-46731, Sep. 5, 1996). On the August 1998 VA examination, the veteran reported that he had to take antibiotics for sinus infection 6 to 8 times in the past year. He reported symptoms including headaches, pain, and nasal discharge. The examiner noted current manifestations of sinusitis and diagnosed chronic and recurrent sinusitis. The symptomatology reported by the veteran and accepted by the examiner meets the criteria for a 30 percent rating. Therefore, an increased rating will be granted. Review of the medical history does not disclose the surgery or near constant manifestations required for a 50 percent rating. ORDER An increased schedular rating for low back pain with herniated discs is denied. A 30 percent rating for chronic sinusitis is granted, subject to the law and regulations governing the payment of monetary awards. REMAND The appellant is currently at the maximum evaluation under Diagnostic Code 5293 for intervertebral disc syndrome. The accredited representative has requested extraschedular consideration for this disability. The appellant has alleged marked interference with employment due to his back disability and provided statements and testimony from co- workers to substantiate his claim. The RO should address 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). A medical examination is necessary to determine whether the appellant is unemployable due to his service connected disabilities. Accordingly, this claim is REMANDED for the following action: 1. The RO should schedule a VA examination for the purpose of determining whether the appellant is unemployable due to his service connected disabilities. 2. 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. This Remand serves as notice of the regulation. 3. The RO should consider referring 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). 4. The RO should develop evidence regarding the appellant's vocational and school status, specifically his status in the VA Student Work-Study Program. 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. CLIFFORD R. OLSON Acting Member, Board of Veterans' Appeals