BVA9502854 DOCKET NO. 93-16 400 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an increased rating for low back disability, currently rated at 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alberto H. Zapata, Associate Counsel INTRODUCTION The veteran served on active duty from January 1942 to January 1946. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The issue of entitlement to special monthly compensation on account of loss of use of a foot has been raised by the record and is referred to the RO for appropriate disposition. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected low back disability has worsened, and that his current symptoms include constant lower back pain which radiates down his legs, muscle spasms, loss of neural control over his leg and foot, and loss of balance; walking and sitting for prolonged periods also cause the veteran distress. The veteran argues that his current rating of 40 percent for intervertebral disc syndrome should be increased to the maximum for the relevant diagnostic code, namely, 60 percent. 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 evidence is at least in equipoise and thus, with resolution of reasonable doubt in the veteran's favor, supports the veteran's claim for entitlement to an increased rating for low back disability. FINDINGS OF FACT The veteran's low back disability is characterized by persistent pain, sciatic neuropathy which includes muscle spasms of the leg and thighs, possible foot drop, and associated lumbosacral radiculopathy. The veteran has lumbar stenosis and intervertebral disc syndrome which is pronounced. CONCLUSION OF LAW The schedular criteria for an evaluation of 60 percent for intervertebral disc syndrome have been met. 38 U.S.C.A. §§ 1155, 5107 (b) (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5293 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the veteran's claim for entitlement to an increased rating for his service-connected low back disability is well grounded according to 38 U.S.C.A. § 5107 (a); his claim is plausible and capable of substantiation. The Board is satisfied that all relevant facts have been properly developed and no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107 (a). The veteran was originally granted service connection for low back disability in 1963 and assigned a 10 percent disabling rating. The RO granted an increased rating to 20 percent in March 1988 and to 40 percent in January 1993 for what was classified as degenerative joint disease of the lumbar spine with herniated nucleus pulposus and radiculopathy. Relevant testimony from the veteran's hearing held at the RO in May 1994 includes his comments about the daily pain he suffers due to the condition of his lower back; this pain causes him to wake up at night to seek relief. The veteran described the pain as a throbbing and twitching pain which caused an aching feeling, and he stated that the pain is more pronounced on the left side of his back. He stated that due to the pain he could only walk 50 yards at a time. The veteran described other symptoms including his loss of control over his left foot and a lack of feeling in his foot and leg. Also relevant are the veteran's complaints of constant muscle spasms in his thighs which radiate down his legs to his feet; the veteran was able to obtain relief from these muscle spasms after taking quinidine sulfate. Furthermore, the veteran spoke of an occasional loss of balance and testified that he was receiving cortisone shots for his back and this provided him with some relief from the pain. The veteran has been treated on numerous occasions at VA facilities over the recent years for his low back disability along with other ailments such as lung cancer, neck pain, positional vertigo, and carpal tunnel syndrome. The most significant of those exams for the purposes of evaluating the claim on appeal are the January 1993 orthopedic and neurological examinations of the veteran at the VA Medical Center in Boston. In accordance with 38 C.F.R. § § 4.1, 4.2, 4.41 (injury cases) and 4.42 (1993) and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records pertaining to the history of low back disability. The Board has found nothing in the historical record which would lead it to conclude that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1992). The Rating Schedule is applied to the specific evidence contained in the veteran's claims file bearing in mind that the ratings represent the average impairment in earnings capacity resulting from the veteran's original in-service injury and its residuals in civil occupations. 38 C.F.R. § 4.1 (1993) As mentioned, numerous recent VA medical treatment reports are contained in the veteran's claims file, the most relevant of which will now be discussed. An orthopedic follow-up from April 1994 contains the examiner's entry of the diagnosis of spinal stenosis and left plantar fascisits; the veteran's continued pain and difficulty in walking were also noted. In a December 1993 orthopedic examination, the examiner noted that the veteran had good range of motion in his hips and back; a diagnosis of sciatica was recorded. In a January 1993 spinal examination report from the Boston VA Medical Center, a physician made findings concerning the range of motion of the veteran's back and legs: the lumbar spine exhibited less than 5 degrees for flexion, 0 degrees extension, and probable 5 degrees lateral bending; straight leg raising was limited to 30 degrees bilaterally; and difficulty in dorsiflexing the left foot was noted; 5 degrees dorsiflexion of the right foot and 5 degrees plantar flexion bilaterally were also noted. The physician also found that sensation to pin prick was decreased bilaterally in both thighs and mildly decreased in the lower extremities; the veteran was unable to differentiate sharp and dull stimuli. The physician entered a diagnosis of degenerative joint disease of the lumbar spine with herniated disc and nucleus pulposus; degenerative joint disease with radiculopathy; foot drop; and spinal stenosis by history. Also in January of 1993 a VA spinal cord and neurological examination at the Boston facility resulted in a diagnosis of lumbosacral radiculopathy secondary to herniated nucleus pulposus with severe pain and multiple episodes of cramping of the legs. The physician noted findings of cramps in the left calf muscle with hyporeflexia throughout; sensory loss over the lateral aspect of the thigh on the right and over the calf on the left were also found; tenderness in the paraspinal region, bilaterally, with some spasm was also noted. The history given at that examination showed that the veteran had been experiencing low back pain for the past 15 years. According to the provisions of the Rating Schedule for intervertebral disc syndrome, diagnostic code 5293, a 60 percent rating is granted for pronounced forms of the disability. A low back disability warranting a 60 percent rating under this code is manifested by: 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; the veteran must have little intermittent relief from his symptoms. The Board finds that the medical evaluations of the veteran of record contain sufficient evidence to meet the schedular criteria listed under diagnostic code 5293. In this regard the Board notes, that whether or not foot drop is present, more than severe residual impairment attributable to the service connected low back disability has been amply demonstrated. When attention is directed to the provisions of 38 C.F.R. § 4.7 and the reasonable doubt doctrine, a 60 percent schedular evaluation is appropriate. ORDER An increased rating for intervertebral disc syndrome, to a 60 percent disability rating, is granted, subject to the applicable criteria governing payment of monetary benefits. ROBERT E. SULLIVAN 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. (CONTINUED ON NEXT PAGE) 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.