BVA9504348 DOCKET NO. 93-12 106 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES Entitlement to an increased rating for residuals of a cervical spine injury, evaluated 20 percent disabling. Entitlement to an increased rating for residuals of a gunshot wound to the right shoulder involving muscle group I, evaluated 10 percent disabling. Entitlement to an increased rating for lumbar sprain, evaluated 10 percent disabling. Entitlement to an increased (compensable) rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Robert A. Leaf, Counsel INTRODUCTION The veteran served on active duty from October 1968 to August 1970. March and December 1992 rating decisions of the Muskogee, Oklahoma Regional Office (RO) of the Department of Veterans Affairs (VA) denied increased ratings for the disabilities listed on the title page of this decision. This appeal to the Board of Veterans' Appeals (Board) stems from those rating decisions. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that his service connected disabilities have become worse. 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 claims of entitlement to increased ratings for residuals of a cervical spine injury, residuals of a gunshot wound to the right shoulder involving muscle group I, lumbar sprain and bilateral hearing loss. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Residuals of a cervical spine injury are manifested primarily by paresthesias of the arms and complaints of tenderness involving the upper cervical area; there is no spasm of neck muscles or deformity of the cervical spine region; motor power of the upper extremities is well-preserved; the disability is productive of no more than moderately severe impairment of the muscles of the cervical spine. 3. Residuals of a gunshot wound to the right shoulder involving muscle group I is manifested primarily by an asymptomatic scar; there is no atrophy or spasm of right shoulder muscles; the right arm can be raised above shoulder level; the disability is productive of no more than moderate impairment. 4. Lumbar sprain is manifested primarily by pain on motion and no more than slight limitation of motion of the lumbar spine; there is no muscle spasm or unilateral loss of lateral spine motion. 5. The veteran has level I hearing in each ear. CONCLUSIONS OF LAW 1. A rating in excess of 20 percent for residuals of a cervical spine injury is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 5320 (1993). 2. A rating in excess of 10 percent for residuals of a gunshot wound to the right shoulder involving muscle group I is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 5301 (1993). 3. A rating in excess of 10 percent for lumbar sprain is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 5295 (1993). 4. A compensable rating for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.85 and Part 4, Code 6100 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the appellant's claims are "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented claims which are plausible. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity resulting from specific service-connected disabilities. 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities and the criteria that must be shown for specific ratings. I. Increased ratings for disabilities of the cervical spine, right shoulder and lumbar spine Service medical records reveal that the veteran sustained a fragment wound to the right anterior chest. According to a treatment entry of November 1969, a chest x-ray disclosed no retained fragment. In July 1970, the veteran indicated that he had sustained injury to the back and right shoulder when struck by a falling tree about one month before. X-ray examination was negative. The impression was healing contusion. A VA examination was performed in October 1970. It was reported that the veteran was right handed. He complained of numbness involving portions of the right upper arm, right forearm, and the right thumb, index and middle fingers; he also indicated similar areas of numbness involving the left upper extremity with numbness affecting all fingers of the left hand. Upper extremity symptoms were intensified by moving the head forward and downward. He also complained of lower back pain on excessive sitting or stooping Examination revealed a healed, 1/2 inch wound scar below the right shoulder blade tip. Also noted were healed, 1 inch stellate scars over the left side of the neck next to the tip of the shoulder. All joint movements were normal. There was no limitation of skilled movements involving finger-to-nose, thumb- to-finger tips and finger-to-nose. Forward flexion of the cervical spine brought on numbness of the upper extremities. Range of motion of the lumbar spine was as follows: forward flexion to 80 degrees without pain, extension backward to 25 degrees without pain, lateral flexion 30 degrees bilaterally, and rotation 20 degrees bilaterally. X-rays of the cervical, dorsal and lumbosacral spine disclosed no bony or articular abnormalities. The diagnoses included paresthesia of both upper extremities, probably adhesions of cervical region or trauma, with negative x-ray findings; and lumbar strain causing pain on excess motion. Based on the foregoing evidence, a March 1971 rating decision granted service connection and assigned evaluations, in pertinent part, for the following disabilities: contusion of the cervical spine with intermittent numbness of both arms, evaluated 20 percent disabling; residuals of a gunshot wound to the right shoulder involving muscle group I, evaluated 10 percent disabling; and lumbar sprain, evaluated 10 percent disabling. These evaluations have remained in effect since that time. On VA examination in October 1973, x-rays of the right shoulder and cervical spine were negative. The lumbar spine was also unremarkable on x-ray except for a scoliosis to the left and an exaggerated lordosis. Diagnostic impressions were as follows: numbness and paresthesia of both upper extremities, occasionally, following cervical spine contusion--no muscular weakness or limitation of motion of cervical spine or arms; gunshot wound of right shoulder, group I muscles, no residua, scars healed-- occasional pain on excess exercise (no limitation of motion); and lumbar strain with some pain on excess lifting and movements. The veteran was accorded a VA examination in January 1992. It was noted that he had an old shrapnel wound to the posterior right interscapular area which had not involved bone or artery damage and was asymptomatic. The veteran's chief complaints concerned the back and neck. He referred to increasing neck pain, with stiffness and intermittent limitation of motion, particularly in cold, damp weather. Back pain was reportedly less severe than neck pain. He noted that he avoided bending and lifting because of low back pain. He denied symptoms of radicular pain involving the neck or back. He stated that he had intermittent feeling of numbness and tingling of the both upper extremities; however, this occurred only when he tried to do work with his arms elevated above the shoulder area. On examination, the veteran walked with a normal gait. A barely visible scar from an old shrapnel wound of the shoulder was seen in the right scapular area; it was clinically unremarkable. There was normal spinal curvature throughout. He complained of some mild tenderness in the upper cervical area and the low lumbar area, but had no paravertebral muscle spasm or tenderness. He had full range of motion throughout the back except in the cervical spine where hyperextension was limited to 20 degrees and lateral flexion was limited to 30 degrees bilaterally. He also had some pain in the neck with hyperextension and lateral flexion. In the low back, he had full range of motion and complained only of some mild discomfort with full forward flexion. No neurological deficits were found. X-ray examination of the cervical spine was interpreted as showing narrowing of the posterior disc space at C5/C6 with early calcification of the posterior longitudinal ligament at this level; no significant bony abnormalities or joint space narrowing of the right shoulder or lumbosacral spine was seen. The impressions were old neck injury, symptomatic with limitation of motion; old back injury, intermittently symptomatic; and shrapnel wound, right interscapular area, asymptomatic without residuals. On VA examination of the joints in September 1992, there was positive moderate bicipital tenderness of the right shoulder. Positive crepitance was noted with range of motion. Some pain was elicited with all ranges of motion. The right shoulder exhibited no swelling or deformity. Range of motion of the right shoulder was as follows: flexion--120 degrees, extension--40 degrees, outward rotation--80 degrees, abduction--120 degrees, adduction--negative, and pronation and supination--within normal limits. The diagnosis was right shoulder pain, possible tendinitis/degenerative joint disease. VA examination of spine in September 1992 revealed slight scoliosis, with the right shoulder lower than the left. Tinel's sign was positive bilaterally at the wrists, the left wrist greater than the right. Strength of the upper extremities was 5+/5+ bilaterally. Musculature of the back was within normal limits. Range of motion of the back was as follows: forward flexion--130 degrees, backward extension--160 degrees, left lateral flexion--150 degrees, right lateral flexion--150 degrees, rotation to left--100 degrees, rotation to right--120 degrees. Objective evidence of pain on motion was demonstrated by slowness with range of motion, especially with forward flexion. Electromyographic testing was interpreted as showing no evidence of cervical radiculopathy or peripheral neuropathy. The diagnoses were degenerative joint disease of the cervical spine, probable degenerative joint disease of the lumbosacral spine, and questionable carpal tunnel syndrome bilaterally v. radiculopathy. A 20 percent rating is provided for moderately severe impairment of muscle group XX involving spinal muscles of the cervical and dorsal region. A 40 percent rating is warranted for severe impairment. 38 C.F.R. Part 4, Code 5320 (1993). With respect to cervical spine disability, the record discloses that trauma to the cervical spine region did not result in fracture or damage to vertebral segments or disc spaces. There is no clinically demonstrated deformity or misalignment of the cervical spine, although some disc space narrowing at C5-6 was noted on x-ray in January 1992. Electromyographic testing showed no evidence of damage to cervical nerves supplying the upper extremities, and physical examination revealed no atrophy of the upper arms or forearms; in fact, it was found that the veteran has excellent motor power of upper extremity muscles. The principal residual symptom of trauma to the cervical spine is paresthesia, which the veteran experiences as intermittent numbness affecting the upper extremities. We also recognize that he has complaints of mild upper cervical tenderness. However, there has been no indication of muscle spasm and the range of cervical spine motion was normal except for restriction of hyperextension to 20 degrees and lateral flexion to 30 degrees. Accordingly, we find that the evidence does not demonstrate severe impairment of affected muscles of the cervical spine region so as to warrant assignment of a 40 percent evaluation. A 10 percent rating is provided for moderate impairment of the muscle group I involving extrinsic muscles of the shoulder girdle of the major extremity. A 30 percent rating is warranted for moderately severe impairment of the major extremity. 38 C.F.R. Part 4, Code 5301 (1993). A 20 percent rating is provided for limitation of motion of the arm of the major extremity at shoulder level. 38 C.F.R. Part 4, Code 5201 (1993). Turning to the right shoulder disability, the record discloses that a fragment wound to the right chest/shoulder region produced minimal damage to muscle tissue. In this regard, the wound scar has not been shown to be adherent to underlying muscle tissue, nor is it depressed or tender. There are no clinical findings of atrophy or spasm of muscle group I of the shoulder, the muscles at the site of the fragment wound. Although the recent September 1992 VA examination noted moderate tenderness of the right shoulder and crepitance and pain on motion, there has been no clinical evidence of muscle weakness. In view of these findings, the Board concludes that the evidence does not demonstrate moderately severe impairment of affected muscles of the shoulder so as to warrant assignment of a higher evaluation under the rating code for muscle damage. In addition, recent examination disclosed that the veteran was capable of raising the right arm a significant distance above shoulder level. Accordingly, the veteran does not have limitation of motion of the arm to shoulder level as would support assignment of a higher evaluation under an alternate rating code. A 10 percent rating is provided for lumbosacral strain with characteristic pain on motion. A 20 percent rating is warranted for muscle spasm on extreme forward bending, unilateral loss of lateral spine motion in a standing position. 38 C.F. Part 4, Code 5295 (1993). A 10 percent rating may also be assigned for slight limitation of motion of the lumbar spine. A 20 percent rating is warranted where there is moderate limitation of motion. 38 C.F.R. Part 4, Code 5292 (1993). With respect to lumbar sprain, the record demonstrates that trauma to the back did not result in bony damage to the lumbar spine. The principal residual symptom of trauma to the lumbar spine region is mild pain with full forward flexion. However, there is no objective evidence of muscle spasm or unilateral loss of lateral spine motion. Criteria for assignment of a higher rating on the basis of lumbar sprain are not satisfied. In addition, recent examinations revealed no more than slight limitation of motion of the lumbar spine. Moderate limitation of motion of the lumbar spine is not demonstrated as would support assignment of a higher rating. The regulations require that the evaluation of disability of the musculoskeletal system must take into account functional loss due to pain of the damaged part of the system. Functional loss is the inability to perform normal working movements, and must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40 (1993) In this case, the extent of pain involving the cervical spine, right shoulder and lumbar spine is adequately reflected by the currently assigned schedular ratings. II. Increased rating for bilateral hearing loss Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability from bilateral service- connected defective hearing, the revised rating schedule establishes 11 auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85 and Part 4, Codes 6100 to 6110 (1993). Elevated pure tone thresholds bilaterally were noted on an examination in August 1970 for service separation. An elevated pure tone threshold in the left ear was recorded on VA audiologic examination in January 1971. Based on that record, a March 1971 rating decision granted service connection for bilateral hearing loss and assigned a zero percent evaluation. That evaluation has remained in effect since that time. The veteran was accorded an audiologic examination by VA in January 1992. For the right ear, pure tone threshold levels were 5, 5, 10 and 30 decibels (dB), at 1,000, 2,000, 3,000 and 4,000 Hertz (Hz), respectively, for an average of 12 dB. For the left ear, pure tone thresholds were 0, 5, 10 and 45 dB, respectively at the same frequencies, for an average of 15 dB. Speech discrimination ability was 96 percent correct for the right ear and 96 percent correct for the left ear. These results correspond to level I hearing in each ear and do not support assignment of a compensable rating. 38 C.F.R. Part 4, Code 6100 (1993). In reaching its decision, the Board has considered the complete history of the disabilities in question as well as the current clinical manifestations and the effect the disabilities may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2 (1993). Furthermore, the Board does not find that the evidence presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular criteria, so as to warrant the assignment of extraschedular evaluations under 38 C.F.R. § 3.321(b)(1) (1993). In this regard, there is no evidence of frequent periods of hospitalization or marked interference with employment (beyond that contemplated by the rating schedule) due exclusively to these disabilities. The Board has carefully reviewed the entire record in this case; however, the Board does not find the evidence to be so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107 (West 1991). ORDER An increased rating for residuals of cervical spine injury is denied. An increased rating for residuals of a gunshot wound to the right shoulder involving muscle group I is denied. An increased rating for lumbar sprain is denied. An increased rating for bilateral hearing loss is denied. D. C. SPICKLER 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.