BVA9502303 DOCKET NO. 92-13 133 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an increased evaluation for status post trauma to the dorsal spine with scoliosis, rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo, Associate Counsel INTRODUCTION The veteran served on active duty from September 1977 to August 1981. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In May 1991, the RO promulgated a rating decision denying entitlement to service connection for left C6 radiculopathy secondary to soft disc herniation at C5-6 and continuing the 10 percent evaluation for status post trauma of the dorsal spine with scoliosis. In May 1991, the RO affirmed the above determination. The notice of disagreement with the above determination was received in May 1991. A statement of the case was issued in July 1991. The substantive appeal was received in October 1991. The Board remanded the case in June 1993. The RO, in an April 1994 decision, granted entitlement to service connection for left C6 radiculopathy secondary to soft disc herniation at C5-6. A 20 percent rating was assigned for the C5-6 disc herniation effective February 28, 1991, resulting in a combined disability rating of 30 percent. A temporary total rating based on a period of convalescence was in effect from March 4, 1991, through April 30, 1991. For the period beginning May 1, 1991, a 10 percent rating was assigned for the C5-6, disc herniation, resulting in a combined rating of 20 percent. The veteran has not appealed the ratings assigned for the C5-6 disc herniation, and the only question currently before the Board is whether a rating in excess of 10 percent is warranted for disability resulting from injury to the dorsal spine. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected status post trauma to the dorsal spine with scoliosis, should be rated more than 10 percent disabling, as the symptoms and manifestations of the disability from which he suffers, particularly the fatigue and pain in his thoracic spine, especially after work, have increased in severity. 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 a disability rating of more than 10 percent for the veteran's service-connected status post trauma to the dorsal spine with scoliosis, is not warranted. FINDING OF FACT The veteran's service-connected status post trauma to the dorsal spine with scoliosis, is manifested by mild, left thoracic paravertebral muscle spasms and tenderness and a mild post- traumatic scoliosis; there is no ankylosis of the dorsal spine. CONCLUSION OF LAW A disability rating higher than 10 percent for the veteran's service-connected status post trauma to the dorsal spine with scoliosis, is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5191 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service medical records reveal that the veteran suffered injuries in a military rodeo in November 1980. In May 1981, he complained of a dull ache between the neck and scapula since the accident. In June 1981, it was noted that the veteran had had back pain for four months, and that X-rays were negative for fracture or dislocation. According to the report of a VA examination of December 1981, the veteran had minimal scoliosis of the dorsal spine without functional impairment. The veteran was granted a 10 percent evaluation for status post trauma to the dorsal spine with scoliosis, in a January 1982 rating action. The veteran renounced his compensation benefit in October 1982 based on a private physician's evaluation that there was no longer any restriction or impairment. The veteran was again granted a 10 percent evaluation for this disability in a May 1991 rating action. According to the report of a VA examination of April 1991, the veteran had some thoracic tenderness at the level of T2 through T6, without muscle spasms. It was noted that X-ray studies showed minimal convex left scoliosis at T9, with otherwise unremarkable findings. VA examination was performed in December 1991. According to the examination report, the veteran complained of pain and numbness in the upper and middle back. Examination of the thoracic spine showed no tenderness or spasms. The range of motion of the lumbar spine was 75 degrees flexion, 20 degrees extension, and 20 degrees lateral bending bilaterally. A VA examination was performed in September 1993. The veteran complained of progressive pain in the mid-back with some fatigue while working and a general feeling of weakness in his back. He indicated that a scoliosis was previously detected, however, he also notes that he has no obvious deformity. Examination reveals a normal thoracic kyphosis. There was some mild, left thoracic paravertebral muscle spasms and tenderness. On shoulder bending, a slight (less than .5 centimeter) left sided rib hump was present and a slight truncal asymmetry was present when viewed from the posterior. Forward bending, elicited a suggestion of a mild, left sided scoliosis. A neurologic examination of the lower extremities, i.e., motor strength, sensation, and reflexes, was normal. An x-ray evaluation revealed a mild post-traumatic scoliosis. The evidence also includes testimony presented by the veteran at a hearing in November 1991. The veteran stated that he had tenderness in the mid-back area, and that he had a problem with back movements from side to side and with lifting. The VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1993), is a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1993). The evaluation assigned for a disability is established by comparing the manifestations indicated in medical findings with manifestations described in prior medical findings, and with the criteria in the VA's Schedule for Rating Disabilities. In applying the rating criteria, it is also necessary to note that when there is a question as to which of two evaluations should 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 (1993). When an unlisted condition is encountered, it is permissible to rate it under a closely related disease or injury. 38 C.F.R. § 4.20 (1993). Several provisions of the rating schedule must be taken into account in rating the veteran's dorsal spine disability. Although the same symptoms may not be evaluated under various diagnoses, it is necessary to determine which rating criteria most closely approximate the current manifestations of disability. In this case, the rating criteria that might be applicable include those for limitation of motion of the thoracic spine and complete bony fixation of the spine. The rating criteria include provisions directly applicable to the dorsal spine. The Board notes that the veteran is currently receiving the highest rating possible under Diagnostic Code 5291. Under that code a rating of 10 percent is applicable even if the limitation of motion of the dorsal spine is severe. For a rating in excess of 10 percent to be granted for dorsal spine impairment on a schedular basis, there must be ankylosis (complete bony fixation). Under Diagnostic Code 5288, a 20 percent rating is provided for ankylosis in a favorable position, and a 30 percent rating is provided for ankylosis in a unfavorable position. These Diagnostic are not for application, however, as there is no evidence of any spinal ankylosis and the September 1993 VA examination indicates that the veteran could forward bend his spine. A rating higher than 10 percent may also be assigned under Diagnostic Code 5285 where a trauma to the spine results in a fracture with spinal cord involvement or demonstrable deformity of a vertebral body. Here, however, the medical reports do not refer to a fracture, and, in fact, there are medical statements to the effect that there were negative X-ray findings when the veteran was treated in service. Under 38 C.F.R. § 4.40 (1993), functional loss of part of the body due to pain is also considered a disability. 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. In this case, the veteran stated that he experiences pain in the thoracic spine, especially after work, however, no functional loss of the thoracic spine has been shown and his muscle strength and sensation are normal. Therefore, a higher rating under this regulation is not warranted. The Board has also considered whether the veteran is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1993). That regulation permits the application of an extraschedular rating in exceptional cases where the schedular ratings do not adequately represent the disability picture. However, the schedular ratings in this case do adequately represent the disability picture. That is, his service-connected disability does not require frequent periods of hospitalization nor has marked interference with employment been shown. 38 C.F.R. § 3.321(b)(1) (1993). Accordingly, the Board concludes that the negative evidence outweighs the positive evidence. 38 U.S.C.A. § 5107(b) (West 1991). Thus, the Board concludes that a 10 percent rating is appropriate. ORDER The appeal is denied. G. H. SHUFELT Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.