BVA9504093 DOCKET NO. 92-18 788 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased evaluation for residuals of spinal fusions for spondylolisthesis, currently evaluated as 40 percent disabling. 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Julia M. Kurtz, Associate Counsel INTRODUCTION The veteran served on active duty from September 1946 to March 1947. This appeal arises from a July 1991 rating decision of the Detroit, Michigan, Regional Office (RO) which denied an increased evaluation for the veteran's low back disability. It also arises from a March 1992 rating decision which denied entitlement to a total disability rating for compensation purposes based on individual unemployability. The case was previously before the Board in May 1993 when it was remanded for further development. The veteran is represented in his appeal by Disabled American Veterans. The case is now ready for further appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his back disability is more disabling than is represented by the 40 percent rating. He contends that he is in constant pain, is unable to perform many simple tasks around the house, is unable to golf or swim, has worn a back brace for many years, used a TENS unit for several months but discontinued it due to scars and blisters, that his condition is spreading into his lower extremities, and that he has developed a limp in his left leg trying to relieve pressure while walking. Additionally, he contends that he is entitled to a total disability rating for compensation purposes based on individual unemployabiltiy. He asserts that he has not been able to work since March 1990; he took an early retirement but his physician advised him to stop working due to his back disability. 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 the preponderance of the evidence is against the veteran's claim for an increased evaluation for his low back disability but supports the veteran's claim for a total disability rating for compensation purposes based on individual unemployability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's low back disability is manifested principally by pain, limitation of motion, tenderness, and arthritis, productive of symptoms compatible with severe intervertebral disc syndrome. 3. Neither sciatic neuropathy nor ankylosis of the lumbar spine has been demonstrated. 4. The veteran is service-connected for residuals of spinal fusions for spondylolisthesis, evaluated as 40 percent disabling. 5. The veteran has a high school equivalency certificate and has occupational experience as a grocery clerk, retail clothing clerk, and automobile salesman. He states that he last worked in March 1990. 6. The veteran's service-connected disability, residuals of spinal fusions for spondylolisthesis, is of such severity as to preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The schedular criteria for an evaluation in excess of 40 percent for the veteran's low back disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, Part 4, Diagnostic Codes 5003, 5286, 5289, 5292, 5293 (1993). 2. A total rating based on individual unemployability is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, it is necessary to determine if the veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (VA) has properly assisted him in the development of his claims. A "well-grounded" claim is one which is not implausible. Our review of the record indicates that the veteran's claims are plausible and that all relevant facts have been properly developed. Pursuant to the Board's May 1992 remand, private treatment records were obtained and attempts were made to obtain the veteran's vocational and rehabilitation folder. I. History The service medical records show that the veteran developed low back pain while working in the galley and was unable to bend his spine or lift any weight. X-ray examination of the spine showed almost complete absence of the lamina of the 5th lumbar vertebra, and a marked anterior spondylolisthesis of the 5th lumbar vertebra on the sacrum. He was subsequently discharged from service due to the disability. Based upon the evidence of record, in April 1947, the RO granted service connection for deformity congenital, lumbar spine - aggravation in service, rated as limitation of motion of, and assigned a 10 percent evaluation effective from March 18, 1947. The veteran was hospitalized at a VA facility from August 1948 to December 1948 for recurrence of low back pain with radiation down the left lower extremity. X-rays of the lumbosacral spine were interpreted as showing a rather wide defect from the posterior processes of L5, slight forward slipping of L5 on S1, and failure of fusion in the lamina to the right of the midline. The impression was spondylolisthesis, 1st degree. The veteran underwent a spinal fusion. The RO reclassified the back disability as spondylolisthesis (deformity congenital), improved by fusion, and assigned a 100 percent evaluation for hospitalization from September 21, 1948 to December 27, 1948, and thereafter, increased the evaluation to 40 percent, effective from December 28, 1948. The veteran underwent VA fee basis examinations in March 1950. He complained of low back pain with radiation down both legs which was completely disabling. Roentgen examination of the lumbosacral spine was interpreted as showing evidence of a spinal fusion involving the apophyseal joints of the 4th and 5th lumbar and first sacral segments. The posterior spinous processes of the sacrum and 5th lumbar vertebra were fused into a single mass. The body of the 5th lumbar segment showed slight residual anterior displacement. The remaining portions of the lumbosacral spine were normal. The veteran was rehospitalized at a VA hospital from May 1950 to October 1950. X-rays revealed incomplete fusion at the upper end of the graft of the previous spinal fusion. A re-fusion operation was performed in June 1950. The veteran was placed on a Stryker frame for three weeks and then transferred to a plaster body jacket which he continued to wear from three months following discharge. The RO reclassified the back disability as fracture of spinal fusion, operated improved, and assigned a 100 percent evaluation for hospitalization from May 31, 1950 to October 2, 1950, and for convalescence from October 3, 1950 to May 1, 1951, thereafter returning to the prior 40 percent evaluation. A medical statement from Ishwar Dass, M.D., dated in January 1991, indicates that he has treated the veteran since June 1990 for back pain and restricted mobility. He noted the veteran has osteoarthritis changes in the 2nd, 3rd, and 4th facet joints of the lumbar spine and spondylolisthesis L4 through S1, which has been fused. He strongly recommended the veteran take early retirement and indicated that he did not think that the veteran was employable. A magnetic resonance imaging (MRI) scan of the lumbar spine showed disc degeneration at L1-L2 and L4-L5, and anterior disc herniation at L1-L2. An electromyogram dated in January 1991 and nerve conduction studies were normal. At a VA examination in July 1991, the veteran complained of severe upper and lower back pain, pain in the left leg, numbness and tingling in the mid-lumbar spine, and pain around the tail bone. He reported being unable to lift more than 10 pounds, unable to play golf or swim, and indicated that he wakes at night with back pain. The examiner observed the veteran walk with a slight limp on the lower left extremity. Physical examination of the lumbar spine revealed a shallow kyphosis deformity. There was tenderness over the lumbar spine and sacrum. There was no muscle spasm. The examiner did not observe motion of the lumbar spine. The veteran had limited backward motion, limited side motion, and was able to forward bend only to his knees, secondary to back pain. The veteran had straight leg raising to 80 degrees bilaterally. Deep tendon reflexes were 2+, knees and Achilles. X-ray study showed osteoarthrosis. The diagnosis was history of spondylolisthesis, lumbar spine, status post fusions 1948 and 1950, degenerative arthritis lumbosacral spine, and possible degenerative disc disease, lumbosacral spine with radicular pain, lower left extremity. A September 1991 medical statement from Dr. Dass indicates that the veteran was given a low chair back brace to use all the time and highly recommended the veteran be on permanent and total disability. When examined by the VA in February 1992, the veteran's gait was mildly broad based. There was no listing bilaterally. The veteran had flexion of the lumbar spine to 60 degrees, extension and lateral flexion to 10 degrees, and rotation to 15 degrees. The veteran had negative straight leg raising to 80 degrees bilaterally. Toe and heel gaits, flexors and extensors of the toes were intact. Knee and ankle reflexes were 2+ bilaterally. There was no sensory loss in the legs. X-ray study of the lumbosacral spine showed moderate to severe osteoporosis, very minimal superior compression deformity involving L2, a good size osteophyte arising from the supero-anterior aspect of the L2 vertebra, spondylolysis at L5 with first degree spondylolisthesis of L5-S1, disc space between L4 and L5 minimally narrowed posteriorly, and findings suggestive of spinal bony fusion were observed. The diagnosis was status post lumbar spinal fusion times 2 for spondylolisthesis with residual chronic lumbar strain, degenerative joint disease, osteoporosis (severe), spondylolysis by L5 and grade 1 spondylolisthesis L5 over S1, minimal compression of L2 and L4-L5 disc space narrowing. Treatment records dating from November 1982 to December 1993 were obtained from Dr. Dass. The veteran was first seen for back pain in June 1990. In June 1993, the physician indicated that the veteran's function had deteriorated and that the veteran was "going down hill". Following the Board's remand, the veteran was afforded a VA orthopedic examination in July 1994. The veteran sat and ambulated in a straight fashion. He had an abnormal gait but no mechanical device was observed. The examiner indicated that the veteran wears a lumbosacral corset. Physical examination revealed a shallow lumbar lordosis and generalized atrophy of all muscle groups of the back. The veteran had forward flexion to 52 degrees, back extension to 28 degrees, left lateral flexion to 26 degrees, right lateral flexion to 28 degrees, left rotation to 28 degrees, and right rotation to 30 degrees; he expressed discomfort with all movements. There was clearly tenderness over the lumbar spine and sacrum. Motor strength and sensation were equal, deep tendon reflexes were 2+/4+, symmetrical. X-ray study was interpreted as showing osteoarthritis and spondylolisthesis at L5-S1. The diagnosis was chronic low back pain secondary to history of probable spondylolisthesis, with history of spinal fusion times two, L4 through S1, with resultant progressive functional limitations, with osteoarthrosis. The examiner noted that the veteran's employability was greatly restricted secondary to his two previous lumbar fusions and probable postsurgical osteoarthritis. He indicated that even a sedate occupation would be limiting secondary to his chronic debilitating low back pain, which would increase his stress, which would probably interfere with his job performance. II. Increased Evaluation With respect to the veteran's claim for an increased rating, the Board points out that disability ratings are based, as far as practicable, upon the average impairment of earning resulting from the disability as reflected by the current medical findings. 38 U.S.C.A. § 1155 (West 1991). The average impairment is set forth in the VA's Schedule for Rating Disabilities, (hereinafter Schedule), codified in C.F.R. Part 4 (1993), which includes Diagnostic Codes that represent particular disabilities. The pertinent Diagnostic Codes and provisions will be discussed below as appropriate. The Schedule provides that degenerative arthritis established by x-ray findings is to be rated on the basis of the limitation of motion of the specific joint involved. Diagnostic Code 5003. The veteran is currently in receipt of a 40 percent evaluation. This is also the highest evaluation possible under Diagnostic Code 5292 for severe limitation of motion of the lumbar spine. The Board has therefore, considered the veteran's disability under other applicable diagnostic codes. Under Diagnostic Code 5293, a 60 percent disability evaluation is warranted for 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 the diseased disc and little intermittent relief. A 40 percent disability evaluation is appropriate for severe intervertebral disc syndrome with recurring attacks with intermittent relief. On the basis of the medical evidence set forth above, the Board concludes that the preponderance of the evidence is against the veteran's claim for an evaluation in excess of 40 percent for his service-connected back disability. The veteran's low back disability is manifested primarily by severe limitation of motion and back pain, which is recognized by the current 40 percent evaluation for severe intervertebral disc syndrome manifested by recurring attacks with intermittent relief. A higher evaluation requires sciatic neuropathy, muscle spasm, absent ankle jerk or other neurological findings. However, there is no evidence of neuropathy. Electromyogram and nerve conduction studies were normal, there were no muscle spasms and the veteran has ankle reflexes. The Board has also considered whether a higher percent rating is warranted under Diagnostic Codes 5286 for ankylosis of the spine or 5289 for ankylosis of the lumbar spine. However, the objective medical evidence reveals the veteran has motion of the spine, although limited. Accordingly, a higher rating under Diagnostic Codes 5286 or 5289 is not applicable. The provisions of C.F.R. § 3.321(b)(1) (1993) provide for an extraschedular evaluation in exceptional cases where the schedular criteria are found to be inadequate. Such an exceptional case is defined as one which presents an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization rendering impractical the application of the regular schedular standards. In this case, however, the manifestations of the disability present are those contemplated under the rating criteria of 40 percent under Diagnostic Code 5293, such as limitation of motion, muscle atrophy and pain. See also 38 C.F.R. § 4.40 (1993). Moreover, the veteran has not required hospitalization for his back disability. III. Individual Unemployability Total disability ratings for compensation purposes based on individual unemployability may be assigned where the combined schedular rating for the veteran's service-connected disabilities is less than 100 percent when it is found that such disorders are sufficient to render the veteran unemployable without regard to either his advancing age or the presence of any nonservice- connected disorders. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.340, 3.341 (1993). The provisions of 38 C.F.R. § 4.16(a) (1993), elaborate, in pertinent part, that a total disability rating may be assigned where the schedular rating is less than total, provided that if there is only one service-connected disability, it shall be ratable at 60 percent or more. Service connection is in effect for residuals of spinal fusions for spondylolisthesis, currently evaluated as 40 percent disabling. The record relates that the veteran has received a high school equivalency diploma and reports occupational experience as a grocery clerk, retail clothing salesclerk, and automobile salesman. He stated that he last worked full-time in March 1990 but was advised by his physician to take early retirement due to his back disability. In turning to the facts of the instant appeal, we observe that service connection is presently in effect solely for the veteran's low back disability which is evaluated as 40 percent disabling. Therefore, the veteran does not meet the schedular requirements of 38 C.F.R. § 4.16(a). Given this fact, we next need to address whether the veteran's service-connected disability nevertheless renders him totally unemployable on an extraschedular basis. 38 C.F.R. § 3.321. A total and permanent disability rating on an extraschedular basis, pursuant to 38 C.F.R. § 3.321(b)(2) shall be considered "[t]o accord justice. . . to the exceptional case where the schedular evaluations are found to be inadequate. . ." Moyer v. Derwinski, 2 Vet.App. 289, 293 (1992). The veteran's contention has been that he was advised by his physician to take early retirement due to his back disability. He has submitted medical statements from his physician which state that the veteran was advised to take early retirement due to his back disability, and that he considered the veteran to be permanently and totally disabled due to his back pain. Furthermore, a VA examiner concluded that the veteran's employability is greatly restrictive and that even a sedate occupation would be limiting secondary to his chronic debilitating back pain. In light of the opinion of the veteran's physician and concurrence by a VA examiner, the Board concludes that entitlement to a total disability rating for compensation purposes based on individual unemployability is warranted on an extraschedular basis. Given the medical opinion of record, it is felt that to conclude otherwise would not withstand Court scrutiny. ORDER An increased evaluation for residuals of spinal fusions for spondylolisthesis is denied. Entitlement to a total disability rating for compensation purposes based on individual unemployabiltiy is granted, subject to the laws and regulations governing the payment of monetary benefits. JEFF MARTIN 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.