BVA9505114 DOCKET NO. 92-23 740 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an increased rating for the residuals of a low back injury with scoliosis of the dorsal spine and arthritis, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Martin F. Dunne, Counsel INTRODUCTION The veteran served on active duty from May 1942 until December 1945. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) San Diego, California, Regional Office (RO). The only issue properly developed and certified for appeal is for an increased rating for the veteran's back disability. On appeal, the veteran testified at a personal hearing held at the San Diego, California, RO in December 1992 before Albert D. Tutera, who is a member of the Board and who is rendering the determination in this claim. This member was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). In March 1994, the Board remanded the case to the RO for further development. That having been accomplished to the extent possible, the RO, in a rating decision dated in June 1994, denied the veteran an increased rating and the claims file has been returned to the Board for appellate determination on this issue. CONTENTIONS OF APPELLANT ON APPEAL Essentially, the veteran contends that his back disability is such that more than the currently assigned 40 percent disability rating is warranted. He asserts that he experiences constant back pain, muscle spasms, and sciatica which radiates into his lower extremities. He maintains that he can walk for only short distances at a time, needs assistance in walking, and cannot stand in one place for more than two or three minutes as a time. He also requests consideration be given to assigning an extraschedular evaluation to his back disability or to have the disability rated analogous to intervertebral disc syndrome. 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 claim for an increased rating for the residuals of a low back injury with arthritis. FINDING OF FACT The residuals of a low back injury with scoliosis of the dorsal spine and arthritis are manifested by complaints of constant pain and limitation of motion with medical findings of severe limitation of motion, no fixed deformity, and non-tenderness to palpation. CONCLUSION OF LAW The residuals of a low back injury with scoliosis of the dorsal spine and arthritis are no more than 40 percent disabling, on a schedular or extraschedular basis. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.1, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5292 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran has presented a well grounded claim; that is, one which is plausible. The Board also finds that the VA has adequately fulfilled its responsibility to assist him in the development of his claim. 38 U.S.C.A. § 5107(1a) (West 1991). Factual Background A review of the records show that, while on active duty in 1942, he injured his back when he got his foot caught in some netting on an obstacle course. He reinjured his back in 1944 when he slipped on some ice. The RO, in a rating decision dated in June 1948, granted him service connection for the residuals of an injury to his lower back with dextro scoliosis of the dorsal spine and ankylosing arthritis. The condition was evaluated as non-compensably disabling, effective from April 1946, and 10 percent disabling, effective from June 1948. The veteran filed a claim for an increased rating in November 1990. The RO, in a rating decision dated in March 1991, increased the rating for the back injury residuals, including arthritis, from 10 percent disabling, which had been in effect since 1948, to 40 percent disabling, effective from November 1990. Analysis The 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 (1994). It is thus 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. § 4.41 (1994). In the case at hand, the veteran's only service-connected disability are the residuals of a low back injury with scoliosis of the dorsal spine and arthritis. Although the veteran asserts that his disability be rated analogous to intervertebral disc syndrome, service connection has not been established for a disc disability. Under the VA's Schedule for Rating Disabilities, Diagnostic Code (Code) 5010 provides that arthritis due to trauma, substantiated by X-ray findings, is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a (1994). Under Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a (1994). The veteran's VA outpatient treatment records for 1987 through early 1994 show that he was seen primarily for diabetes, blindness, secondary to diabetic retinopathy, and for peripheral neuropathy. In January 1991, he underwent a VA orthopedic examination which found that his back had no muscle spasms. His iliac crests were noted to be equal distance from and parallel to the floor. His shoulders were even. Range of motion study revealed that his back had lateral flexion to 10 degrees, bilaterally, and rotation to 25 degrees on the right and to 20 degrees on the left. There was degenerative arthritis of the spine. In February 1991, he underwent VA neurological examination which confirmed, by electromyogram, that the veteran had peripheral neuropathy which was worse in the lower limbs than the upper limbs. The findings showed fibrillation potentials in the lumbosacral paraspinal muscles which the examiner found to be entirely consistent with diabetic peripheral neuropathy, diabetic muscle weakness, and atrophy. In December 1992, the veteran testified at a personal hearing at the RO before the member of the Board rendering the determination in this claim. Essentially, the veteran reiterated his contentions and presented his current and past experiences pertaining to his chronic back disability. A transcript of this hearing is of record in the veteran's claims file. The veteran underwent a VA orthopedic examination in December 1992 which showed that he had mild scoliosis and mild muscle spasm along his spine. Range of motion study of the lumbosacral spine revealed that forward flexion was to 30 degrees, extension was to 10 degrees, lateral bending was to 10 degrees, bilaterally, and rotation was to 20 degrees, bilaterally. He had decreased sensation and which was particularly absent in the lower extremities up to the knees. He had 3/5 muscle weakness in the lower extremities. The diagnoses were: Diabetic neuropathy; bilateral sciatic neuropathy, the sensory type particularly; low back pain; and lumbar spondylosis. X-rays revealed prominent productive changes in the lumbar spine, mild sclerosis of the sacroiliac joints, and probable fusion. The examiner opined that the veteran was considered legally blind and, because of the weakness in not being able to know where his feet were, he would also be considered unemployable. The veteran underwent a VA neurological consult in February 1993. Essentially, the examiner found that the veteran had severe peripheral tremor with wasting of the peripheral musculature and weakness. He opined that it was the veteran's onset of diabetes which subsequently produced a rather severe progressive peripheral neuropathy which , as a result of this progressive peripheral neuropathy, he had developed neuropathic tremor which had become quite disabling. On VA orthopedic examination of April 1994, the veteran was found to be very unstable with ambulation; however, he did not appear to be in any significant pain. He had no postural abnormalities, no fixed deformity was seen and the musculature of his back was found to be within normal limits. A range of motion study of the veteran's lumbar spine was unable to be conducted because of the veteran's instability. The examiner noted that the veteran could not stand and lean forward, extend, rotate to either side, or lateral bend without falling. Upon examination, his low back was non-tender to palpation. His motor function in the lower extremities was 5/5 throughout. He had an intention tremor with any motor testing or purposeful motion. Degenerative disc disease of the lumbar spine was diagnosed. The veteran complained of constant pain in the area, with prior radicular pain into the lower extremities. The examiner opined that the lower extremity findings were most likely secondary to nerve root compression. However, the examiner found it difficult to evaluate the veteran neurologically from the standpoint that the veteran had an intention tremor, motor weakness secondary to this tremor, and a stocking-glove decrease of sensation in all extremities. This was found to be consistent with peripheral neuropathy, most likely secondary to the veteran's diabetes. The veteran currently has a 40 percent rating for the residuals of a low back injury with scoliosis of the dorsal spine and arthritis. In addition, he has peripheral neuropathy for which he is not service-connected. The medical examiners have ascribed the veteran's lower extremity symptomatology to peripheral neuropathy, secondary to non-service connected diabetes, and not as a residual of the veteran's service-connected low back injury with scoliosis and traumatic arthritis. The 40 percent schedular rating is the most that can be assigned the veteran's low back disability under the appropriate diagnostic codes. In assigning this rating, consideration has been given to the functional loss of the veteran's back as well as the veteran's complaints of pain. 28 C.F.R. §§ 4.40, 4.45, 4.59 (1994). The 40 percent rating is fair and reflects all of the medical data. Consideration has also been given to the provisions of 38 C. F. R. § 3.321(b) (1994) regarding the assignment of an extraschedular evaluation but the Board finds that the residuals of the veteran's low back injury with scoliosis and arthritis are not exceptional or unusual. The medical evidence does not show that the symptomatology associated exclusively with the veteran's service-connected back disability, in and of itself, has caused marked interference with employment or that it has been the cause of frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In addition to the veteran's service-connected back disability, he also has non-service connected diabetes, legal blindness due to diabetic retinopathy, and peripheral neuropathy which, in concert with his service-connected back disability, contribute to the veteran's over-all physical condition. ORDER Entitlement to an increased rating for the residuals of a low back injury with scoliosis of the dorsal spine and arthritis is denied. ALBERT D. TUTERA 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.