Citation Nr: 0005147 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-05 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating for status post discectomy at the level of the sixth and seventh cervical vertebrae (C6-7) with left (minor) arm muscle weakness, currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating for left carpal tunnel syndrome, currently evaluated as 10 percent disabling. 3. Entitlement to an increased (compensable) rating for hiatal hernia with reflux. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Daniel R. McGarry INTRODUCTION The veteran had active service from October 1962 to September 1967 and from January 1969 to July 1987. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision in which the regional office (RO) denied increased ratings for status post C6-7 discectomy, left carpal tunnel syndrome, and hiatal hernia with reflux. In Floyd v. Brown, 9 Vet. App. 88 (1996), the United States Court of Veterans Appeals (now the United States Court of Appeals for Veterans Claims, hereinafter referred to as the Court) held that the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the laws and regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) or from reaching such a conclusion on its own. Moreover, the Court did not find the Board's denial of an extraschedular rating in the first instance prejudicial to the veteran, as the question of an extraschedular rating is a component of the appellant's claim and the appellant had full opportunity to present the increased-rating claim before the RO. Consequently, the Board will consider whether this case warrants the assignment of an extraschedular rating. FINDINGS OF FACT 1. The veteran is right handed. 2. The veteran's disability from residuals of C6-7 discectomy with left arm muscle weakness is manifested by subjective complaints of morning stiffness in the neck and shoulders, with clinical findings of mildly decreased motor strength in the left upper extremity, without severe recurring attacks of radicular neuropathy or loss of function of the shoulder, elbow, wrist, or hand. 3. The veteran's disability from left carpal tunnel syndrome is manifested by subjective complaints of hand weakness, without clinical findings of loss of grip strength, weak wrist flexion, deformity, atrophy, loss of finger or wrist motion, abnormal finger extension, or other manifestations of paralysis of the median nerve. 4. The veteran's disability from hiatal hernia is manifested by subjective complaints of epigastric pain without clinical findings of two or more of the following symptoms: dysphagia; pyrosis; regurgitation; or substernal, arm or shoulder pain. CONCLUSIONS OF LAW 1. The criteria for rating in excess of 20 percent for status post C6-7 discectomy with residual muscle weakness of the left arm have not been met. 38 U.S.C.A. §§ 1155, 5107 (1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, 4.123, 4.124a, Diagnostic Codes 5293, 8510 (1999). 2. The criteria for a rating in excess of 10 percent for left carpal tunnel syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107 (1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, 4.123, 4.124a, Diagnostic Code 8515 (1999). 3. The criteria for a schedular rating in excess of zero percent for hiatal hernia with reflux have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.114, Diagnostic Code 7346 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran has presented a well-grounded claim for increased disability evaluation for his service-connected disabilities within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); cf. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (where veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by the Department of Veterans Affairs, he established a well- grounded claim for an increased rating). The Board is satisfied that all appropriate development has been accomplished and the Department of Veterans Affairs (VA) has no further duty to assist the veteran in developing facts pertinent to his claim. The veteran has not advised VA of the existence of additional evidence which may be obtained. Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Although VA must consider the entire record, the most pertinent evidence, because of effective date law and regulations, is created in proximity to the recent claim. 38 U.S.C.A. § 5110 (West 1991). VA utilizes a rating schedule which is used primarily as a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). When utilizing the rating schedules, when an unlisted condition is encountered, the VA is permitted to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (1999). It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 C.F.R. § 4.1 (1999). I. C6-7 Discectomy The veteran presented for treatment in June 1978 giving a history of cervical strain from lifting a heavy object. He developed numbness in his left arm in the ulnar distribution. After an examination revealed mild paraspinous spasm, tenderness in the left cervical area, and reduced sensation to pinprick in the ulnar distribution, the examiner noted a diagnosis of ulnar neuropathy. In March 1986, the veteran had another episode of neck pain and transient left upper extremity weakness. An X-ray of the cervical spine showed degenerative disc disease at C5-6 and C6-7, with disc narrowing and anterior spurring. A neurology note dated several weeks later indicated that the sensory symptoms had resolved. However, the symptoms neck and shoulder pain with radiating pain to the left arm returned in June 1986. An examiner noted an impression of C6-7 radiculopathy. The veteran underwent a C6-7 posterior discectomy in July 1986. A follow-up note dated in August 1986 indicated that he continued to have severe neck, shoulder and arm pain. Follow-up notes dated in September 1986 indicated that the veteran was much improved after taking more convalescent leave. The veteran was granted entitlement to service connection for status post C6-7 discectomy with resultant muscle weakness in the left (minor) arm by the RO's August 1988 rating decision. The associated disability was rated 20 percent disabling, effective from the date of the day following the veteran's separation from service. The 20 percent rating has remained in effect since that time. The RO has evaluated the disability associated with the veteran's service-connected cervical spine disorder utilizing Diagnostic Codes 5293 and 8510. Under Diagnostic Code 5293, 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 diseased disc is rated as 60 percent disabling when there is little intermittent relief. Severe intervertebral disc syndrome is rated 40 percent disabling where there are recurring attacks, with intermittent relief. Intervertebral disc syndrome manifested by moderate, recurring attacks is rated 20 percent disabling. Under Diagnostic Code 8510, incomplete paralysis of the upper radicular group (C5-6) of nerves, is rated 20 percent disabling. Moderate incomplete paralysis of such nerves on the minor side is rated 30 percent disabling. Severe incomplete paralysis of the upper radicular group on the minor side is rated 40 percent disabling. The term "incomplete paralysis", with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a (1999). The rating regulations provide that neuritis of a peripheral nerve characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is rated on the scale provided for the appropriate nerve, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by such organic changes will be that for moderate, or with sciatic nerve involvement, moderately severe, incomplete paralysis. 38 C.F.R. § 4.123 (1999). Complete paralysis of the upper radicular group is manifested by loss of all shoulder and elbow movement, or such movement is severely affected, without loss of hand or wrist movements. The VA outpatient treatment records contained in the claims folder do not show that the veteran has had treatment for symptoms associated with his cervical spine disorder. Similarly, VA and private hospital records show no complaints or treatment for symptoms associated with a cervical disc disorder. The only pertinent evidence contained in the claims folder are the reports of VA orthopedic and neurological examinations dated in September 1997. During the VA neurological examination, the veteran had normal muscle mass and tone. Strength was generally diminished, although particularly so in the proximal thigh muscles, which were 4/5. Biceps jerks were present. Other reflexes were difficult to obtain or totally absent. Sensory examination demonstrated a decreased distal sensory perception to pinprick. The examiner reported an impression of diabetic polyneuropathy. Electromyographic and nerve conduction studies conducted in October 1997 were diagnostic of very mild diabetic neuropathy. During the VA orthopedic examination, the veteran reported that he was working as a registered nurse. He told the examiner that after his surgery for C6-7 discectomy he never completely recovered function of his left, non-dominant arm. He reported that he still had residual weakness. H complained of discomfort over the posterior aspect of his neck radiating into his shoulders with morning stiffness. He denied radiation into his upper extremities. He reported that his left arm symptoms improved after his surgery. On examination, there was a well-healed incision over the dorsum of his cervical spine. Ranges of motion were as follows: forward flexion, 20 degrees; extension, 20 degrees; lateral bending to the right, 35 degrees; lateral bending to the left, 25 degrees; rotation to the right, 40 degrees; rotation to the left, 25 degrees. Motor strength in his right upper extremity was 5/5 throughout. In his left upper extremity, motor strength was 4/5 throughout. The veteran had good grip strength in both hands. X-rays showed straightening of the cervical spine. There was fusion of the C4 and C5 vertebral bodies. There was severe loss of disc space and large marginal osteophytes at C5-6 and C6-7. The reported diagnosis was status post C-6 discectomy with residual left upper extremity weakness. When viewed in the context of Diagnostic Code 5293, the record does not show that the veteran has more than moderate symptoms of intervertebral disc syndrome. There is no evidence showing that he has severe, recurring attacks with intermittent relief. The only clinical finding is mildly reduced motor strength in his left upper extremity. Accepting his subjective complaints of morning stiffness and neck and shoulder pain, the Board concludes that the veteran's disability from intervertebral disc syndrome does not meet the criteria for a schedular rating in excess of 20 percent. In the context of Diagnostic Code 851l, the evidence in the record does not show symptoms indicative of moderate, incomplete paralysis of the radicular group. Although sensation is generally diminished, that has been attributed to the veteran's nonservice-connected diabetic neuropathy. Left upper extremity muscle strength is only mildly diminished. The record contains no finding of impairment of movement of the shoulder, elbow, wrist, or hand. The Board has also considered the veteran's disability from the cervical spine disorder in the context of Diagnostic Code 5290, which provides for ratings of 10, 20, or 30 percent for slight, moderate, or several limitation of motion of the cervical spine. However, based on the ranges of motion reported in the September 1997 VA examination the Board finds that the limitation of motion in the veteran's cervical spine is not severe. For the foregoing reasons, the Board concludes that the criteria for rating in excess of 20 percent for status post C6-7 discectomy with residual weakness of the left arm have not been met. The Board has considered the provisions of 38 C.F.R. § 4.7, which provide for assignment of the next higher evaluation where the disability picture more closely approximates the criteria for the next higher evaluations. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. The veteran's cervical spine disability, as discussed above, does not approximate the criteria for the next higher schedular evaluation of 20 percent. He does not have symptoms approaching moderate, incomplete paralysis of the left upper extremity, severe recurrent episodes of neuropathy, or severe limitation of motion of the cervical spine. The Board concludes that the criteria for a schedular rating in excess of 20 percent for status post C6-7 discectomy with left (minor) arm muscle weakness have not been met or approximated. II. Left Carpal Tunnel Syndrome After nerve studies in September 1978, the veteran was diagnosed to have left carpal tunnel syndrome. He underwent surgery for left carpal tunnel release in March 1979. Notes of follow-up treatment show that he had full active range of motion in all fingers and that the nerves were intact. In follow-up notes dated in June 1979, the veteran was described as asymptomatic after the left carpal tunnel release. The veteran was granted service connection for left carpal tunnel syndrome by the RO's August 1988 rating decision which assigned an evaluation of 10 percent pursuant to Diagnostic Code 8515. The 10 percent rating has been effective since the time of the veteran's separation from service. Under Diagnostic Code 8515, mild, incomplete paralysis of the median nerve on the minor side is rated 10 percent disabling, moderate incomplete paralysis of the median nerve is rated 20 percent disabling on the minor side, and severe, incomplete paralysis of the median nerve on the minor side is rated 40 percent disabling. Complete paralysis of the median nerve shows manifestations such as the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of the middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; and pain with trophic disturbances. As with the veteran's disability from his cervical spine disorder, the record contains no indication of treatment for symptoms associated with left carpal tunnel syndrome. The only evidence pertinent to current level of disability is contained in the September 1997 VA orthopedic and neurological examinations. No left hand disorder was identified during either of such examinations. Grip strength was good. There was no thenar wasting of the muscles in either hand. No loss of motion, painful motion, deformity, or lack of coordination was reported. Tinel's sign and Phalen's maneuver were only slightly positive. Therefore, the Board concludes that the criteria for a schedular rating in excess of 10 percent are not met. Nor does the veteran's disability picture from left carpal tunnel syndrome more closely approximate the criteria for the next higher schedular rating of 20 percent, as there is no showing the veteran has more than slight symptoms compatible with partial paralysis of the median nerve. 38 C.F.R. § 4.7 (1999). III. Hiatal Hernia with Reflux Service medical records indicate that the veteran began to have symptoms of gastroesophageal reflux in 1971. A subsequent upper gastrointestinal radiographic series revealed a hiatal hernia with gastroesophageal reflux. This was treated symptomatically with antacids. In 1973, while under going a thoracic procedure for mitral valve dysfunction, the veteran also underwent a hiatal hernia repair. However, he continued to have intermittent retrosternal and epigastric pain. A summary of the veteran's hospitalization in June 1986 for treatment of his cervical disc disorder contains among its final diagnoses hiatal hernia with reflux, controlled with oral medication, status post hiatal hernia repair. The veteran was granted entitlement to service connection for hiatal hernia with reflux by the RO's August 1988 rating decision. The associated disability was rated zero percent disabling, effective from the date of the day following his separation from service. The RO has utilized Diagnostic Code 7346 to rate the disability associated with hiatal hernia. Under that diagnostic code, where there are symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia, or other symptoms combinations productive of severe impairment of health, a 60 percent rating is assigned. A 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal, or arm or shoulder pain, productive of considerable impairment of health. A 10 percent rating is assigned where there are two or more of the symptoms associated with the 30 percent rating, although of less severity. The veteran asserted in the VA Form 9 filed in March 1998 that he had projectile vomiting and symptoms of chest pain radiating to his jaw and left arm for which he took nitroglycerin sublingually. He stated that he took Prevacid daily and Gaviscon after meals and at bedtime to reduce reflux. The VA outpatient treatment records contained in the claims folder show that the veteran's treatment has been predominantly for a heart disorder. When he was examined in August 1996, his abdomen was nontender and not distended. Subsequently dated treatment records do not show that the veteran had complaints related to hiatal hernia or gastroesophageal reflux. However, a summary of a private hospitalization dated in June 1997 indicated that the veteran was taking Prevacid and Gaviscon. During a VA examination in September 1997, the veteran reported that his symptoms of reflux improved after the in- service hiatal hernia repair. Such symptoms improved dramatically with use of Prevacid and Gaviscon. He had recently lost 60 pounds over a short period of time following a dietary regimen for control of diabetes. The weight loss also help his reflux symptoms. He denied a history of anemia. He denied having difficulty swallowing. He had never had an episode of food impacting in the swallowing tube. He reported having epigastric pain which responded very well to Prevacid and Gaviscon. On examination, the veteran's abdomen was soft, nontender, and without palpable masses. Serology was not indicative of anemia. The examiner reported that the veteran had gastroesophageal reflux disease without clinical evidence of stricture. The Board finds that the veteran's disability from hiatal hernia with reflux is manifested by epigastric pain which is responsive to medication, without clinical findings of two or more of the following symptoms: dysphagia; pyrosis; regurgitation; or substernal, arm, or shoulder pain. The Board concludes that the criteria for a schedular rating in excess of zero percent have not been met. Nor does the veteran's disability picture from hiatal hernia more closely approximate the criteria for the next higher schedular rating of 10 percent, as the digestive disorder is not manifested by more than epigastric pain. The record contains no clinical findings that the veteran has dysphagia; pyrosis; regurgitation; or substernal, arm, or shoulder pain. IV. Extraschedular and Other Considerations In reaching its decision, the Board has considered the complete history of the disabilities in question as well as the current clinical manifestation and the effect each disability may have on the earning capacity of the veteran. 38 C. F. R. §§ 4.1, 4.2, 4.41 (1999). The Court has held that pursuant to 38 C.F.R. § 4.40 the Board must consider and discuss the impact of pain in making its rating determination concerning musculoskeletal disorders. See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997); DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). Section 4.40 provides in part that functional loss may be due to pain, as supported by adequate pathology, and as evidenced by the visible behavior of the claimant undertaking the motion. The section also provides that weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. Factors listed for consideration in 38 C.F.R. § 4.45 include less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination, impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. The evidence contained in the claims folder does not show that the veteran's disabilities from a cervical spine disorder and left carpal tunnel syndrome are manifested by painful motion, excess fatigability, incoordination, deformity, or atrophy. The mild weakness in the left upper extremity is contemplated in the criteria for the schedular ratings currently in effect. In exceptional cases where schedular evaluations are found to be inadequate, consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities" is made. 38 C.F.R. § 3.321(b)(1) (1999). The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. Id. The Board first notes that the schedular evaluations in this case are not inadequate. The 20 percent rating under Diagnostic Code 5295 contemplates moderate recurrent symptoms of neuropathy and radiculopathy. Higher schedular rating are provided for more severe, frequent, prolonged, and intransigent symptoms. Similarly, there are higher ratings assignable for symptoms of neuropathy associated with carpal tunnel syndrome and for hiatal hernia with reflux, but the medical evidence reflects that the veteran's symptoms from the disabilities under consideration do not warrant such higher ratings. Second, the Board finds no evidence of an exceptional disability picture in this case. The veteran has not required hospitalization or frequent treatment for his cervical spine, left hand, or gastric disorder, nor is it otherwise shown that such disorders so markedly interfere with employment as to render impractical the application of regular schedular standards. Rather, for the reasons noted above, the Board concludes that extraschedular consideration under 38 C.F.R. § 3.321(b) is not warranted in this case. The RO's failure to discuss extraschedular consideration and to refer the claim for assignment of such a rating as provided in the regulation was not prejudicial to the appellant in light of the Board's findings on that issue. ORDER Increased ratings are denied for status post C6-7 discectomy with left arm weakness, left carpal tunnel syndrome, and hiatal hernia with reflux. SANDRA L. SMITH Acting Member, Board of Veterans' Appeals