BVA9507061 DOCKET NO. 92- 03 389 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for residuals of a fracture of the right leg. 2. Entitlement to service connection for defective hearing in the right ear. 3. Entitlement to service connection for defective visual acuity. 4. Entitlement to an increased evaluation for postoperative residuals of a herniated nucleus pulposus of the lumbar spine with arthritis, currently rated 10 percent disabling. 5. Entitlement to an increased evaluation for vitiligo, currently rated 10 percent disabling. 6. Entitlement to an increased evaluation for cluster headaches, currently rated 30 percent disabling. 7. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The record reflects that the appellant retired from active military service in June 1970 with more than 23 years of active duty. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) North Little Rock, Arkansas, Regional Office (RO), dated in May 1989, March 1990, and August 1994. The May 1989 rating decision granted service connection for cluster headaches, assigning a 30 percent evaluation effective January 18, 1989; granted service connection for postoperative residuals of a herniated nucleus pulposus in the lumbar spine with arthritis, assigning a 10 percent evaluation effective January 18, 1989; and denied service connection for residuals of a fracture of the right leg. The March 1990 rating decision granted service connection for vitiligo, assigning a 10 percent evaluation effective October 24, 1989, and denied entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. The August 1994 rating decision granted service connection for an acquired psychiatric disorder (somatization disorder with dysthymia) as secondary to cluster headaches, assigning a 10 percent evaluation effective January 30, 1991; granted service connection for defective hearing in the left ear, assigning a noncompensable evaluation effective January 30, 1991; denied entitlement to service connection for residuals of a fracture of the right leg, defective hearing in the right ear, and defective visual acuity; denied entitlement to increased evaluations for postoperative residuals of a herniated nucleus pulposus in the lumbar spine with arthritis, vitiligo, and cluster headaches; and denied entitlement to a total disability evaluation based on individual unemployability due to service- connected disabilities. The case was remanded to the RO in November 1993 for additional development prior to appellate adjudication of the several claims. In reviewing the claims file, the Board notes two arguments raised by the appellant's representative in his August 1992 and February 1995 informal hearing presentations that are best addressed at this point. The representative asserts in his August 1992 statement that the appellant should be service connected for degenerative arthritis in the lumbar spine. We note, however, that the appellant's service-connected back disability already includes arthritis as part of the disability. Whether that arthritis is categorized as traumatic or degenerative is inconsequential because the arthritic condition of the lumbar spine has been considered in the evaluation of the lumbar spine disability. In his February 1995 statement, the representative presses for a grant of service connection for an acquired psychiatric disorder as secondary to the appellant's service-connected cluster headaches disorder. We note that the August 1994 rating decision, in fact, granted service connection for an acquired psychiatric disorder (somatization disorder with dysthymia) as secondary to cluster headaches. Therefore, we find the representative's request for an examination by a specialist in the field of psychiatry, for the purpose of identifying a psychiatric disorder as secondary to the headache disorder, to be unnecessary. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that his postoperative residuals of a herniated nucleus pulposus of the lumbar spine with arthritis is more severely disabling than currently evaluated, thereby warranting a higher evaluation. 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 appellant'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 evidence demonstrates that the severity of the appellant's service-connected low back disability warrants a 20 percent evaluation. FINDING OF FACT Postoperative residuals of a herniated nucleus pulposus of the lumbar spine with arthritis are shown to be manifested by symptomatology productive of moderate limitation of motion in the lumbar spine, without severe intervertebral disc syndrome. CONCLUSION OF LAW The schedular criteria for a 20 percent evaluation for postoperative residuals of a herniated nucleus pulposus of the lumbar spine with arthritis are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.71a, Diagnostic Codes 5292, 5293 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented a well-grounded claim. The facts relevant to this appeal have been properly developed, and the obligation of the VA to assist the appellant in the development of the claim has been satisfied. Id. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate rating codes identify the various disabilities. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (1994). 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. 38 C.F.R. § 4.7 (1994). When limitation of motion in the lumbar spine is shown to be severe, a 40 percent evaluation is assigned. If limitation of motion in the lumbar spine is moderate, a 20 percent evaluation is assigned. For slight limitation of motion in the lumbar spine, a 10 percent evaluation is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1994). When intervertebral disc syndrome is pronounced, as manifested by 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 the diseased disc for which there is little intermittent relief, a 60 percent evaluation is assigned. If intervertebral disc syndrome is severe, with symptomatology indicating recurring attacks with intermittent relief, a 40 percent evaluation is assigned. When intervertebral disc syndrome is shown to be moderate with recurring attacks, a 20 percent evaluation is granted. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1994). Service medical records show that the appellant initially complained of chronic intermittent backache of five years duration in April 1953, and continued to experience back problems, to the point that he underwent a laminectomy for a herniated nucleus pulposus in the lumbar spine in October 1964. At a VA medical examination in April 1989, a seven centimeter surgical scar was noted in the area of the appellant's lumbar spine. There was no limitation of motion in the lumbar spine, and straight leg raising was negative to 80 degrees. The appellant was able to heel and toe walk well, and there was no weakness of the great toes. Touch sensation was normal over each leg. X-ray examination of the lumbar spine revealed degenerative changes at L4, L5, and S1, with spurring and marrow disc spaces, significant narrowing at L5-S1 with vacuum phenomenon, and some degenerative changes involving the apophyseal joints at L5-S1 bilaterally. A January 1990 VA medical examination revealed that range of motion in the lumbar spine was 75 percent of normal, with normal straight leg raising and a negative sciatic notch test. A subsequent VA medical examination in June 1991 also showed motion in the lumbar spine to be 75 percent of normal, with intact reflexes, no sensory deficits, normal straight leg raising, and no pain to pressure over the sciatic notches. A VA orthopedic examination was conducted in April 1994. At that time the appellant could bend forward to a point where his fingers reached approximately the middle and lower third of the tibia. Extension of the lumbar spine was to 3 degrees, and lateral bending was to 20 degrees. Straight leg raising was to 90 degrees bilaterally without difficulty, and there was no muscle spasm noted in the back. Under guidelines presented in the VA's Physician's Guide for Disability Evaluation Examinations, § 2.23, p. 2-10 (March 1985), the average normal ranges of motion of the lumbar spine are as follows: flexion forward- 95 degrees; extension backward- 35 degrees; lateral flexion- 40 degrees; and rotation- 35 degrees. In reviewing the appellant's current range of motion in his lumbar spine, the Board finds that his ability to bend forward to a point reaching the middle and lower third of the tibia indicates normal flexion because reaching that point with the fingers is accomplished by bending forward to 90 degrees or more. However, his backward extension to only 3 degrees represents severe limitation of extension, while his lateral bending to 20 degrees represents moderate limitation of lateral flexion. After careful and thorough review of the evidence, the Board concludes that the clinical findings now show that the appellant has moderate limitation of motion, overall, in his lumbar spine, and, therefore, a 20 percent evaluation is warranted for his lumbar spine disability. We do not find that the evidence demonstrates that his overall range of motion in the lumbar spine is severely limited, or that he experiences severe recurring attacks of intervertebral disc syndrome with little intermittent relief. Hence, an evaluation in excess of 20 percent is not warranted. Consideration has been given to the potential application of the provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, the evidence does not suggest that the appellant's postoperative residuals of a herniated nucleus pulposus of the lumbar spine with arthritis presents such an exceptional or usual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of an extraschedular evaluation for either of these disabilities under 38 C.F.R. § 3.321(b)(1) (1994). For example, this disability has not required frequent periods of hospitalization, nor does it present marked interference with employment. ORDER A 20 percent evaluation is granted for postoperative residuals of a herniated nucleus pulposus of the lumbar spine with arthritis, subject to the laws and regulations governing the award of monetary benefits. REMAND Because of our grant of a 20 percent evaluation for the appellant's postoperative residuals of a herniated nucleus pulposus of the lumbar spine with arthritis, we believe that the RO should have the opportunity to reevaluate the claim of entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities prior to final appellate consideration. The Board also notes that the previous remand requested that the RO obtain signed release of information forms from the appellant for the purpose of securing copies of medical records from private health care providers who had treated the appellant for his various disabilities. The record reflects that the forms were sent to the appellant but not returned. The appellant did indicate in a subsequent statement that he had not received any private medical treatment during the previous year. It is the Board's belief that the appellant may have misunderstood the request for the signed forms, in that he perhaps thought they pertained only to private medical treatment for the previous year. The Board feels that because of its duty to assist the appellant as established by 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994) and Colvin v. Derwinski, 1 Vet.App. 171 (1991), another attempt to obtain the signed forms should be made, with a notation to the appellant that the request is for the purpose of associating copies of all previous private medical records with the claims file, not just private medical records for the past year. Therefore, the case is REMANDED to the RO for the following reasons: 1. The RO should request the appellant to sign release forms for obtaining copies of medical records from all health care providers who have treated him over the years. The information provided by the appellant should include addresses, approximate dates of treatment, and other information necessary to request copies of the records. Thereafter, the RO should undertake to obtain copies of all the medical records to which reference is made. If records are not obtained from any of the sources, the appellant and his representative should be notified. 38 C.F.R. § 3.159 (1994). 2. The RO should reconsider the issue of entitlement to a total disability evaluation based on individual unemployability due to service connected disabilities, in light of the Board's grant of a 20 percent evaluation for postoperative residuals of a herniated nucleus pulposus of the lumbar spine with arthritis. After the above requested actions have been completed, the RO should review the appellant's claims with regard to the additional evidence obtained. If any of the benefits sought on appeal remains denied, a supplemental statement of the case should be furnished to the appellant and his representative. They should be afforded a reasonable period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration. Appellate consideration of the other issues certified on appeal is deferred pending completion of the development requested above. The purpose of this REMAND is to obtain addition medical evidence and to ensure that the appellant is afforded due process of law. No opinion, either legal or factual, is intimated as to the merits of the his claims by this REMAND. He is not required to undertake any additional action until he receives further notice from the VA. BETTINA S. CALLAWAY 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 so assigned. 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).