BVA9505022 DOCKET NO. 90-46 680 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Increased rating for residuals of a back injury with discogenic disease, currently rated as 40 percent disabled. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William L. Pine, Counsel INTRODUCTION The appellant served on active duty from August 1967 to August 1969. This appeal is from the October 1988 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) denying a rating greater than 20 percent for residuals of a back injury. The RO increased the rating to 40 percent in a rating decision of October 1994. The appellant continues his appeal for a higher rating. The appellant's representative avers, in essence, that the effective date of the 40 percent rating should be earlier than June 14, 1994, where the increase was granted in the context of a claim that has been timely and continuously on appeal from an October 1988 rating decision. Additionally, the Board notes, that the date of claim displayed on the October 1994 rating decision is the date of the Board's fourth remand in this case attempting to obtain the RO's performance of the duty to assist the appellant. The Board construes the appellant's brief as raising a claim for an earlier effective date for the increased rating granted in the October 1994 rating decision. Additionally, the appellant testified in his October 1989 hearing, and reiterated on the VA Form 1-646 of September 1990 that he cannot work due to his service-connected back disability. Both claims are referred to the RO for appropriate development and adjudication. The appellant's representative avers that the issue of entitlement to an increased rating and the issue of the effective date of the 40 percent rating are "inextricably intertwined." Harris v. Derwinski, 1 Vet.App. 180 (1991). Whereas the two issues rest on separate and distinct laws and regulations, and a pending action on the latter does not inhibit a complete resolution of the former, the claims are not intertwined and appellate action on the instant increased rating claim need not be stayed pending action on the effective date issue. Likewise, a total rating claim arising subsequently to an increased rating claim in appellate status does not render the increased rating decision preliminary or require completion of action on the total rating claim to permit the increased rating decision to become final. Holland v. Brown, 6 Vet.App. 443 (1994). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he is more than 40 percent disabled by his service-connected residuals of a back injury with discogenic disease. 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(s). 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 an increased rating is warranted. FINDING OF FACT The appellant has a herniated nucleus pulposus at L5-S1 compressing the right S1 nerve root with bilateral neural foramen narrowing, symmetric facet hypertrophy at L4-L5, and osteophyte formation at T11-T12, manifested by radiculopathy of the right lower extremity, demonstrable paravertebral muscle spasm and slight bladder incontinence. CONCLUSION OF LAW The schedular criteria for a 60 percent rating for residuals of a back injury with discogenic disease are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5293 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant has raised a well grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). The Board has remanded this case to the St. Petersburg RO, the agency of original jurisdiction, four times: May 1991, June 1992, November 1993, May 1994. These remands have been to afford the appellant orthopedic and neurologic examinations, including nerve conduction velocity and electromyographic tests. The neurologic examination and related testing has never been accomplished. Despite two remands so ordering, November 1993 and May 1994, documentation of the actual scheduling of examinations has never been put in the claims folder. Additionally, the RO has neither obtained certain VA outpatient records nor obtained an explanation from the custodial VA Medical Center why the records requested by the RO have not been furnished. Although the Board is at a loss to understand why development of this case has remained incomplete for so many years and despite so many remand orders, it appears that the part of the May 1994 remand that was accomplished provided a VA examination report that is adequate to grant the benefit sought by the appellant. Whereas VA has a duty to "assist . . . in developing the facts pertinent to the claim," 38 U.S.C.A. § 5107(a) (West 1991), and the facts developed are sufficient to the purpose of the development, the Board deems the duty to assist (nominally) discharged without need for a fifth remand before the record is closed and a decision is issued. Service medical records reveal that the appellant was treated for severe lumbosacral pain with muscle spasm and neurologic symptoms. VA examination in June 1973 noted limitation of lumbosacral flexion due to pain and right leg pain. An August 1973 x-ray study was normal. An x-ray study of December 1981 noted decreased height of T12 vertebra and slightly increased density of lumbosacral bones, considered a normal variant without change from August 1973. He was admitted to a VA medical center (VAMC) in September 1988 for complaints of back pain radiating occasionally to the right buttock and thigh. He denied loss of bowel or bladder control. He denied loss of strength, but reported the development of a limp in the previous two years. He was found to have decreased strength on the right side, 4/5 in the right lower extremity, with strength 5/5 in the left lower extremity. Deep tendon reflexes were symmetrical throughout. He underwent a computerized tomography study (CT) and a myelogram of the lumbar spine. Both procedures revealed a herniated nucleus pulposus (HNP) lateralizing towards the right side. VA outpatient records of April 1988 reveal complaints of low back pain with radiation down the right lateral thigh. Examination found tenderness in the right lower back with 0 to 1+ patellar and Achilles reflexes, bilaterally. In September 1989, the appellant was seen in a VA urology clinic complaining of urinary dribbling after voiding. The prostate was very tender, and prostatitis was diagnosed. On further urology work-up in November and December 1989, intravenous urogram and voiding cystourethrogram were negative In an October 1989 hearing, the appellant testified that he had constant low back pain, a limp, numbness of the right leg and occasionally was completely incapacitated. He stated that he had been unable to work for two years and that he had been refused employment because of his back. On VA examination in August 1989, the appellant had limitation of lumbar flexion to 140 degrees [180 degrees equals standing erect], straight leg raising was negative, reflexes were slightly decreased. He complained loudly on flexion and percussion of the lumbar spine. The diagnosis was discogenic disease. On VA hospitalization in July 1991, which included a VA examination for compensation purposes, he had slight decrease in right lower extremity strength, but could heal and toe walk. He complained of pain with right leg raising, but could sit up fully. Deep tendon reflexes were 2+ in all extremities. He had trouble raising his right leg to place it on his left shin, and he walked was a slightly abnormal lag in his right leg. Romberg sign was negative. EMG and NCS were to be scheduled to evaluate for radiculopathy. The diagnosis of herniated L5-S1 disc with clinical symptoms was confirmed, although it was opined that the appellant embellished slightly on the neurology examination, partly due to guarding from fear of pain. Lumbar x-rays revealed interval progression in the degree of osteophytic bony spurring extending off the L5 and the S1 vertebrae, compared with the September 1988 lumbar myelogram. Intervertebral disc spaces were fairly well maintained. CT scan, with and without myelography was recommended if HNP or spinal stenosis was suspected clinically. In December 1993, the appellant had a VA lumbar magnetic resonance image (MRI) of the lumbosacral spine. The MRI produced findings consistent with a HNP predominantly to the right at L5- S1 compressing the right S1 nerve root and barely touching the left S1 nerve root. There was bilateral neural foramen narrowing at that level, similar to the CT myelogram of September 1988. Additional findings were a symmetric facet hypertrophy at L4-5, greater on the left than the right, and mild osteophyte formation at T11-12. The appellant had a VA examination in June 1994. He was found to have slight scoliosis and some paraspinal spasm in the lower lumbar area. Ranges of lumbar motion were flexion 60 degrees; extension 5 degrees; lateral flexion 30 degrees, bilaterally; rotation 30 degrees, bilaterally. Objective evidence of pain was noted present. Complaints of pain were commented on as "honest," with movement and bending done carefully due to pain. Straight leg raising was positive at 60 degrees on the left and at 35 degrees on the right, with sensation of tingling on the right. Lasegue's sign was positive in the right lower extremity. He was able to toe and heel walk with difficulty and pain. There was slight bladder incontinence. Irritation of the nerve roots at the L5-S1 level was considered to cause pain in the right lower extremity radiating to the thigh, leg and foot; there were weak deep tendon reflexes in the right ankle. The diagnosis was right L5-S1 discogenic disease. Analysis of the evidence clearly shows a steadily increasing degree of disability. The notation that the December 1993 MRI findings were comparable to the September 1988 CT myelography is strong evidence that the appellant has had the current level of underlying pathology for some time. The appellant's disability is rated according to the criteria for intervertebral disc syndrome. The criteria for a 60 percent rating are "[p]ronounced; 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. § 4.71a, Diagnostic Code 5293 (1994). The appellant need not demonstrate all of the criteria to satisfy the rating requirements. 38 C.F.R. § 4.21 (1994). Clearly, the appellant satisfies nearly all of the rating criteria. His symptoms are persistent. He has sciatic neuropathy, as shown clinically by the positive Lasegue's sign, which is a test for sciatica. The diagnostic code does not define "demonstrable," but the common definition is "capable of being demonstrated; obvious or apparent," Webster's II New Riverside Dictionary 361 (Riverside Pub. Co. 1984), and there is no basis to conclude from the examination report that the finding "some . . . spasm" means other than demonstrable. Whereas the June 1994 examiner included bladder incontinence among his positive findings, and urologic work-up provided no genitourinary explanation for the incontinence, the Board finds that the incontinence constitutes the "other neurological findings" that can satisfy the rating criteria. In short, the preponderance of the evidence shows entitlement to a 60 percent rating for residuals of a back injury with discogenic disease. Sixty percent is the highest schedular rating assignable for the appellant's disability. The Board therefore considers whether extraordinary circumstances render the application of the rating schedule impracticable, hence warranting an extra-schedular rating. See 38 C.F.R. § 3.321(b)(1) (1994). The appellant has alleged frequent hospitalizations for his back, but the record contradicts that assertion. The two hospitalizations shown in the record as due to his service-connected back disability, August 1989 and July 1991, does not amount to "frequent" within the meaning of the regulation. There is no evidence that the appellant is frequently interrupted in his work. He is, in fact, unemployed. Consequently, the question whether the service- connected disability causes such "marked interference with employment as to render impractical the application of the regular rating schedule," Id., is inapposite to the facts in this case. The rating schedule comports well with the degree of disability the appellant suffers due to his service-connected back disorder. Its application is not impractical. The preponderance of the evidence is against awarding additional compensation on an extra- schedular basis. ORDER An increased rating of 60 percent for residuals of a back injury with discogenic disease is granted, subject to the regulations governing payment of monetary benefits. 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.