BVA9500456 DOCKET NO. 93-05 868 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased rating for residuals of low back strain, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for residuals of fracture, thoracic spine, currently evaluated as 10 percent disabling. 3. Entitlement to an increased rating for residuals of a right shoulder injury, currently evaluated as 10 percent disabling. 4. Entitlement to an increased rating for a headache disorder, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The veteran served on active duty from September 1981 to September 1985. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of November 1990 and July 1991 from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In a Statement of Accredited Representative (VA Form 1-747), dated in March 1993, the veteran's representative raised, for the first time, the issue of entitlement to service connection for a cervical spine disorder. As that issue has not been adjudicated, it is not in proper appellate status. Further, we do not find that the issue of entitlement to service connection for a cervical spine disorder is inextricably intertwined with the issues currently on appeal. The issue of entitlement to service connection for a cervical spine disorder is referred to the RO for further appropriate action. The Board limits its consideration herein to the issues stated on the title page of this decision. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO committed error in failing to grant increased ratings for the service-connected disabilities at issue because it did not take into account or properly weigh the medical and other evidence of record. It is asserted that each of the disabilities at issue is more disabling than currently evaluated and that an increased rating is warranted for each of these disorders. 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. 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 the preponderance of the evidence is against the veteran's claims for increased ratings for residuals of low back strain, residuals of a thoracic spine fracture, residuals of a right shoulder injury, and headaches. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO. 2. The residuals of a right shoulder injury are manifested by clinical findings of a slight outward displacement of the right scapula, and spasm of the right trapezius muscle, without objective clinical findings of nonunion, loose movement, disloca- tion, or limitation of motion of the contiguous joints. 3. The residuals of fracture of the thoracic spine are manifested by complaints of pain and occasional paravertebral muscle spasm, without objective clinical findings of spinal cord involvement, ankylosis, limitation of motion, or demonstrable deformity of a vertebral body. 4. Residuals of low back strain are manifested by characteristic pain on motion, without objective clinical findings of muscle spasm on extreme forward bending or unilateral loss of lateral spine motion in a standing position. 5. The veteran's headache disorder is manifested by daily headaches, without objective clinical findings of prostrating attacks. CONCLUSIONS OF LAW 1. An increased rating for residuals of a right shoulder injury is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Codes 5201, 5203, 8211 (1993). 2. An increased rating for residuals of thoracic fracture is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Codes 5285, 5291 (1993). 3. An increased rating for residuals of low back strain is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Code 5295 (1993). 4. An increased rating for a headache disorder is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, § 4.20, Code 8100 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are plausible and thus "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), which mandates a duty to assist the veteran in developing all pertinent evidence. In that connection, the Board notes that the medical evidence of record includes the veteran's service medical records, reports of VA radiographic, orthopedic, and urological examinations conducted in March 1988, June 1990, February 1991, April 1991, November 1991, and February 1992, and a report from a private chiropractor dated in February 1991. On appellate review, we see no areas in which additional development might be fruitful. The veteran's service medical records show that he was seen with complaints of lumbosacral pain, without radiation, after a fall. Sensation was intact in the lower extremities, and deep tendon reflexes were equal and active. X-ray examination disclosed no fracture. The clinical impression was low back strain. An entry in December 1984 shows that the veteran continued to complain of low back pain. Examination disclosed tenderness in the area of L1, and X-rays were interpreted as revealing a fracture of L1. Straight leg raising was negative, and deep tendon reflexes were equal and active. The clinical assessment was back pain secondary to compression fracture, L1. A report of orthopedic consultation in December 1984 disclosed no positive findings, and X-rays were interpreted as showing a possible acute versus old injury. The clinical impression was injury, not requiring treatment. The veteran's service medical records further show that he was seen in January 1985 with complaints of recurring low back pain, especially when sitting. Physical examination was unchanged. The diagnosis was low back pain secondary to injury. A report from the physical therapy clinic revealed tenderness to palpation over the right lumbar paraspinal muscle from L1 to S2, over the right sacroiliac joint, and over the superior aspect of the gluteus maximus. In March 1985, the veteran complained of tension-related headaches. In April 1985, he complained of headaches of two weeks' duration. Neurological examination was negative. The clinical assessment was tension headaches. Records dated in April and May 1985 show that the veteran was again seen for complaints of right parietal headaches. On physical examination, mild tenderness of the right trapezius muscle was found; and it was noted that the right shoulder was slightly lower than the left. The clinical assessment was headaches of unknown etiology. A report of VA general medical examination conducted in March 1988 cited a history of inservice injuries to the head and middle and lower back. Physical examination disclosed that range of motion of the back was normal and there was no radiation into the lower extremities. Normal strength and range of motion was found in the right shoulder, and it was noted that the right shoulder was lower than the left. X-ray examination of the skull, shoulders, and cervical, thoracic, and lumbar spines disclosed no abnormalities. The diagnoses included residuals of right shoulder injury, residuals of thoracic fracture, minimal, chronic low back strain, and headaches residual to an inservice fall. VA outpatient clinic records dated in April 1990 show that the veteran was seen for complaints of constant back pain with muscle spasms and numbness of both legs. A report of VA examination, conducted in June 1990, cited the veteran's complaints of continuing pain throughout his back, numbness, tingling, and muscle spasms in the lower extremities, limitation of motion in the arms, and constant headaches. Physical examination disclosed that the veteran had a normal gait and could stand on either foot and hop. Romberg's test was negative, and there was no drift of the outstretched upper extremities. The back had a normal curvature, appearance, and range of motion. Straight leg raising was accomplished to 90 degrees, bilaterally, with hamstring check; and no sciatic notch tenderness was found. There was a slight tenderness to percussion over L4-L5, posteriorly. No motor, sensory, or reflex deficit was found, and coordination was good in all movements. Plantar reflexes were downgoing. X-ray studies dated in March 1988 were reviewed and revealed no bony abnormalities of the skull, shoulders, or cervical, thoracic, or lumbar spines. The diagnosis was lumbar strain. The examiner noted that there was no evidence of radiculopathy and that the veteran was neurologically intact on current examination. He reiterated that there was some tenderness over L4-L5 and that the veteran reported increased difficulty with physical activity. He stated that the veteran was minimally impaired at the present time. A letter from G. M. Jordan, a chiropractor, dated in February 1991, noted the veteran's complaints of neck pain and stiffness, mid and low back pain, shoulder pain, headaches, numbness of the hands, and loss of sleep and fatigue. Physical examination disclosed very substantial hypertonicity of the splenius, scalene, levator scapulae, trapezius, and rhomboid, as well as the sternocleidomastoid and paravertebral muscles, bilaterally. An approximate 40 percent loss of cervical rotation and lateroflexion was reported. No motor, sensory, or reflex deficit of the upper extremities was found. X-ray examination of the cervical spine was said to reveal a slight alteration of normal spinal alignment from C3 through C6, with mild spondylitic spurring. The diagnoses included chronic muscle spasms and myofascitis secondary to cervical sprain/strain. The examiner attributed these conditions to a fall down stairs in December 1983 (sic). A report of VA orthopedic examination, conducted in April 1991, cited the veteran's complaints, including pain and muscle spasms in the thoracic and lumbar spines. Physical examination disclosed that the veteran walked with a normal gait. No deformity of the thoracic spine was found. Some tenderness and spasm were noted in the mid portion of the paraspinal muscles. Forward flexion was accomplished to 80 degrees, extension to 10 degrees, and lateral bending to 30 degrees, bilaterally. A slight lowering of the right shoulder and a slight pelvic tilt were reported. X-ray examination of the spine revealed that the vertebral bodies were intact and unremarkable throughout, with no interspace narrowing, and that the sacroiliac joints were well- defined. The diagnoses included chronic low back strain, residuals of thoracic fracture, and residuals of a right shoulder injury. The examiner offered the opinion that the veteran's right shoulder complaints were secondary to problems in his cervical spine. A report of VA neurological evaluation, conducted in November 1991, cited a history offered by the veteran of sustaining injuries to his vertebrae, head, and shoulder in a 1984 fall on an icy stairway. His complaints included pain throughout the spine, muscle spasm and occasional numbness and tingling of the lower extremities, limitation of motion of the upper extremities, constant headaches, and diminished energy due to loss of sleep secondary to pain. Physical examination disclosed that the veteran walked well upon a narrow base, that he could stand on either foot and hop, that Romberg's sign was negative, and that there was no drift of the outstretched upper extremities. A normal spinal lordosis was present, no sciatic notch tenderness was found, normal spinal flexibility was demonstrated, and no paravertebral muscle spasm was noted. Strength was excellent throughout, without fasciculation, tenderness, or atrophy. Deep tendon reflexes were equal and active, plantar responses were downgoing, and coordination was good in all movements. The diagnosis was lumbar strain. The examiner noted that, while the veteran's story suggested the possibility of intermittent radicular compression in the lower lumbar segment, he had no complaints on the day of examination and there were no current clinical findings which might substantiate his report. A report of VA orthopedic examination, conducted in February 1992, noted the veteran's complaints of recurring muscle spasm in the cervical area and in the right shoulder area, although the right shoulder itself was not specifically involved. Physical examination revealed that the right shoulder was somewhat lower than the left, apparently involving the right scapula rather than the clavicle. A slight outward displacement of the right scapula was seen and the right trapezius muscle was spastic and tight. A full range of right shoulder motion was present in all planes, and no looseness or nonunion was found. The diagnosis was fibromyositis of the musculature of the cervical spine and right shoulder. The examiner attributed the findings to an acute stretching injury of the muscles mentioned above and indicated that other suprascapula and infrascapular muscles might also have been involved. In his substantive appeal (VA Form 1-9), submitted in January 1993, the veteran reported that he experienced "headaches continually on a daily basis." 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 (1993). Separate diagnostic codes identify the various disabilities. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided 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. 38 C.F.R. § 3.321(b)(1) (1993). When an unlisted condition is encountered, it will be permissible 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. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (1993). With respect to the veteran's claim for an increased rating for his service-connected residuals of a right shoulder injury, the Schedule for Rating Disabilities provides that malunion of the clavicle or scapula, or nonunion without loose movement warrants a 10 percent evaluation. A 20 percent evaluation requires nonunion with loose movement or dislocation. These disabilities may also be rated on the basis of impairment of function of the contiguous joint. 38 C.F.R. Part 4, Code 5203 (1993). A 20 percent evaluation is warranted for limitation of motion of the major arm when motion is possible to the shoulder level. A 30 percent evaluation requires that motion be limited to midway between the side and shoulder level. 38 C.F.R. Part 4, Code 5201 (1993). Our review of the medical evidence of record shows that the veteran's service-connected residuals of a right shoulder injury are currently manifested by complaints of pain and clinical findings of a slight outward displacement of the right scapula, without objective clinical findings of nonunion of the scapula with loose movement or dislocation, limitation of motion in any plane, or impairment of function of the contiguous joint. Thus, an increased rating under either of the above-cited codes is not warranted. Since the symptoms of the right shoulder disorder include trapezius muscle spasm, the disorder may alternatively be rated under the criteria for neuritis of the trapezius. Code 8211. The spastic and tight appearance of the trapezius muscle noted on VA examination in February 1992 reflects no more than moderate incomplete paralysis of that muscle and warrants no more than a 10 percent rating under the criteria for rating neurological disorders. 38 C.F.R. § 4.123 and Part 4, Code 8211. Since the medical evidence of record does not establish that the veteran's residuals of a right shoulder injury meet the criteria for an evaluation in excess of the currently assigned 10 percent rating, the Board finds that the increased rating sought on appeal is not warranted. The Board has also carefully considered the veteran's claim for an increased rating for residuals of a thoracic fracture. The Schedule for Rating Disabilities provides that residuals of fracture of a vertebra warrant a 60 percent evaluation if there is no spinal cord involvement, but abnormal mobility is present which requires a neck brace (jury mast). In other such cases, the residuals should be rated on the basis of resulting definite limitation of motion or muscle spasm, adding 10 percent for demonstrable deformity of a vertebral body. When evaluating the residuals on the basis of ankylosis and/or limited motion, evaluations should not be assigned for more than one spinal segment by reason of the involvement of only the first or last vertebra of an adjacent segment. 38 C.F.R. Part 4, Code 5285(1993). The medical evidence of record shows that the veteran's residuals of fracture of the thoracic spine are currently manifested by clinical findings of occasional paravertebral muscle spasm, without objective clinical findings of spinal cord involvement, ankylosis, limitation of motion, or demonstrable deformity of a vertebral body. Limitation of motion of the thoracic spine is not demonstrated. We note clinical findings of muscle spasm involving the paravertebral muscle of the thoracic spine on private examination in February 1991 and on VA examination in April 1991. However, more recent VA examination, in November 1991, revealed no such spasm. Those findings do not provide any basis for a rating in excess of the current 10 percent rating (which is the maximum rating provided by the rating schedule for limitation of motion of the dorsal [thoracic] spine. Code 5291). With respect to the claim for increased rating for residuals of low back strain, the Board notes that the Schedule for Rating Disabilities provides that a 10 percent evaluation is warranted for lumbosacral strain where there is characteristic pain on motion. A 20 percent evaluation requires muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. 38 C.F.R. Part 4, Code 5295 (1993). The veteran's service-connected residuals of low back strain are currently manifested by tenderness to palpation over the lumbosacral spine, without objective clinical findings of motor, sensory, or reflex deficit, muscle spasm, or limitation of motion in any plane. As the criteria for a rating in excess of 10 percent for residuals of lumbosacral strain are not met, an increased rating for that disorder is not warranted. The Board has also considered the veteran's claim for an increased rating for his service-connected headaches. This disorder is evaluated by analogy to migraine headaches. The Schedule for Rating Disabilities provides that a 10 percent evaluation is warranted for migraine with characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation requires characteristic prostrating attacks occurring on an average of once a month over the last several months. 38 C.F.R. Part 4, Code 8100 (1993). The Board notes that symptom reports regarding the frequency and severity of headaches are necessarily subjective in nature. However, we are obliged to take into consideration the several reports of headaches shown during active service (described as tension headaches), as well as ongoing complaints of headaches on VA examinations in March 1988, June 1990, April 1991, and November 1991. Further, the veteran has described experiencing headaches "continually on a daily basis." Nevertheless, it is neither claimed nor established that his headache disorder is manifested by the prostrating attacks characteristic of migraine, and we find that his current symptoms do not warrant a rating in excess of the currently assigned 10 percent evaluation. Consideration has also been given to the potential application of the various applications of 38 C.F.R. Parts 3 and 4, including § 4.40, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, we find that the evidence discussed above does not suggest that the disabilities at issue present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant an assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1993). For example, they have not recently required periods of hospitalization, nor do they present marked interference with employment that is not already contemplated by the current evaluations. We note that the veteran is unemployed; but the only evidence of record pertaining to this shows that it is because he was laid off from his "desk" job, and not because of his service-connected disabilities. ORDER An increased rating for residuals of fracture of the thoracic spine is denied. An increased rating for residuals of low back strain is denied. An increased rating for residuals of a right shoulder injury is denied. An increased rating for a headache disorder is denied. GEORGE R. SENYK 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.