Citation Nr: 0004269 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 98-09 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased disability rating for failed back syndrome, currently evaluated as 40 percent disabling. 2. Entitlement to an increased disability rating for hypertension, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD V. Marletta, Associate Counsel INTRODUCTION The veteran served on active duty from September 1966 to September 1970 and from September 1994 to March 1996. This case comes before the Board of Veterans' Appeals (Board) from rating decisions rendered in July 1997 and April 1998 by the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran applied for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) via a VA Form 21-8940 filed on December 15, 1997. The RO granted the veteran's TDIU claim in its April 1998 rating decision and therein assigned an effective date of December 15, 1997 for payment of TDIU benefits. While the veteran himself did not raise the validity of the assigned effective date, his representative, in a November 1999 brief on appeal, asserts that the RO erred in its assignment of December 15, 1997 as an effective date for the payment of TDIU benefits. The representative asks that the Board consider the veteran's comments in his May 1998 VA Form 9 (Appeal to Board of Veterans' Appeals) as a notice of disagreement (NOD) with the assigned effective date. However, the veteran makes no mention of (and thus does not formally disagree with) the effective date of his TDIU award in his VA Form 9. Because the Board lacks jurisdiction to dispose of an issue not set forth in an NOD, it refers this matter to the RO for appropriate action. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim for entitlement to increased disability ratings for failed back syndrome and hypertension has been developed. 2. The veteran sustains persistent symptoms of failed back syndrome, manifested by constant pain and right lower extremity numbness, with little intermittent relief. 3. The evidence indicates the veteran's back disability is accompanied by sciatic neuropathy with characteristic pain. 4. The veteran's hypertension disorder is manifested by systolic pressure readings below 200 and diastolic pressure readings predominantly below 110. CONCLUSIONS OF LAW 1. The criteria for a 60 percent evaluation for failed back syndrome are met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. § 4.1, 4.2, 4.7, 4.20, 4.71(a), Diagnostic Code 5293 (1999). 2. The criteria for an evaluation in excess of 10 percent for hypertension are not met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. § 4.1, 4.2, 4.7, 4.20, 4.104, Diagnostic Code 7101 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, claims for increased evaluations are considered to be well grounded. A claim that a condition has become more severe is well grounded where the condition was previously service connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board is satisfied that all relevant facts pertaining to the appellant's claim for increased evaluations for failed back syndrome and for hypertension have been properly developed. There is no indication of any additional pertinent records which have not been obtained. No further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). The percentage ratings in the Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (1999). Moreover, each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (1999). 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 (1999). When an unlisted condition is encountered, it will be permissible to rate it under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory finding. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (1999). I. Entitlement to an increased disability rating for failed back syndrome, currently evaluated as 40 percent disabling The veteran sustained a lower back injury in September 1994 while lifting ammunition during an Operation Uphold Democracy mission. Following the diagnosis of a large right paracentral herniated nucleus pulposus L4/5 with L5 radiculopathy, he submitted to surgery in December 1994, where a laminectomy and discectomy at L4/5 was performed. While some post-operative relief was initially noted, the veteran's lower back pain again worsened. An August 1995 USAF Medical Center consultation report noted an impression of failed back syndrome and because the veteran's symptoms and physical findings were "beyond that original level at L4-5 at which he was operated," advised against further surgical procedures. The USAF Physical Evaluation Board in January 1996 found the veteran unfit due to physical disability and recommended permanent retirement. Before his separation in March 1996, the veteran filed a claim in February 1996 for, inter alia, entitlement to service connection for his back disability. The RO granted the veteran's claim for service connection for his back disability in a July 1997 rating decision, which consolidated into one issue his claims for service connection for failed back syndrome, neurogenic bladder, and erectile dysfunction. Following a VA Form 21-4138 (Statement in Support of Claim) filed by the veteran in December 1997 contesting such consolidation, the RO, in a April 1998 rating decision, severed this issue into three distinct issues and rated each disability separately. In accord with the provisions in 38 C.F.R. § 4.20, the RO assigned the veteran a 40 percent evaluation for failed back syndrome under Diagnostic Code 5299-5293. Diagnostic Code 5293 provides for a 40 percent rating for severe intervertebral disc syndrome, which is manifested by recurring attacks and intermittent relief. A 60 percent rating under Diagnostic Code 5293 (pronounced intervertebral disc syndrome) is appropriate when the following symptoms are shown: "persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief." Diagnostic Code 5293 does not offer a disability rating above 60 percent. In March 1997, the veteran submitted to comprehensive compensation and pension (C&P) examinations. The spine C&P examination report indicates the veteran's subjective complaints as follows: "I'm still having pain that is worse than before I had surgery. I am losing the feeling in my right foot again. I cannot sleep at night and I cannot control my bladder. I have hypertension. I cannot sit for more than thirty minutes and cannot stand for more than fifteen minutes." The report further identifies numbness in the veteran's right foot as evidence of neurological involvement and notes positive objective evidence of pain upon motion of the spine. The hypertension C&P examination report indicates that the veteran was taking "Ibuprofen, 4-5 tablets a day in addition to different analgesics that he can put his hands on" and includes a diagnosis of ischialgia, status post laminectomy. In accord with this diagnosis, the bladder C&P examination report shows a diagnosis of neuralgia right nervus ischiadicus, a condition that implies sciatic neuropathy. The neurological C&P examination report indicates that the veteran has give-away weakness in his right lower extremity and a remarkably decreased pinprick in the right great toe and recommends that the veteran be enrolled in the Chronic Pain Clinic for treatment of his low back pain. The Board finds that the veteran has satisfied the requirements in Diagnostic Code 5293 for a 60 percent disability rating. The evidence shows that the veteran sustains persistent symptoms of failed back syndrome, manifested by constant pain and right lower extremity numbness, with little intermittent relief. The evidence further indicates sciatic neuropathy with characteristic pain. Because the evidence does not show a vertebra fracture (Diagnostic Code 5285) or ankylosis of the spine (Diagnostic Code 5286), the veteran is not qualified for a 100 percent disability rating under the Schedule's evaluation scheme for spinal disabilities. II. Entitlement to an increased disability rating for hypertension, currently evaluated as 10 percent disabling The RO granted the veteran service connection for hypertension in its July 1997 rating decision, which assigned a 10 percent evaluation under Diagnostic Code 7101 from March 12, 1996. Under the general rating formula for cardiovascular disorders, hypertensive vascular disease (essential arterial hypertension) is assigned a 60 percent evaluation when diastolic pressure is predominantly 130 or more. A 40 percent evaluation is assigned when diastolic pressure is predominantly 120 or more. A 20 percent evaluation is assigned when diastolic pressure is predominantly 110 or more or when systolic pressure is predominantly 200 or more. A 10 percent evaluation is assigned when diastolic pressure is predominantly 100 or more or when systolic pressure is predominantly 160 or more. The 10 percent evaluation is the minimal evaluation when an individual has a history of diastolic pressure predominantly 100 or more and requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101 (1999). An October 1994 emergency care and treatment report from the 646th Medical Group shows a blood pressure reading of 155/95. The notes attached to a February 1995 urology report indicate the veteran's blood pressure at that time was 170/105. The next blood pressure reading of record was 184/120, as shown on a December 1995 96th Medical Group examination report, which also indicates a diagnosis of hypertension. The final blood pressure readings of record are documented in a March 1997 hypertension compensation and pension examination report, which show blood pressure readings of 150/105 (sitting), 160/108 (lying), and 145/102 (standing). Under Diagnostic Code 7101, a 20 percent hypertension rating will be assigned when the medical evidence establishes systolic pressure readings predominantly 200 and above or diastolic pressure readings predominantly 110 and above. Out of the six blood pressure readings of record, none contain a systolic measurement of 200 or greater and only the December 1995 reading contains a diastolic pressure measurement at or above 110, which is insufficient by itself to satisfy the predominance standard. Because the veteran's blood pressure recordings do not demonstrate systolic readings that are predominantly 200 or greater or diastolic readings that are predominantly 110 or greater, the Board is unable to identify a basis to grant an evaluation greater than 10 percent for hypertension. ORDER A 60 percent rating for failed back syndrome is granted, subject to the laws and regulations governing the disbursement of monetary benefits. The veteran's claim for entitlement to an increased disability rating for hypertension is denied. _____________________________ M. W. GREENSTREET Member, Board of Veterans' Appeals