BVA9504766 DOCKET NO. 93-10 431 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to an increased evaluation for myositis of the lumbosacral paravertebral muscles, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from April 1973 to April 1976. The Board of Veterans' Appeals (the Board) granted an increased evaluation from zero to 10 percent for the veteran's low back disorder in August 1991. A rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, in September 1991 effectuated that 10 percent rating, effective March 9, 1989. The veteran thereafter reopened his claim, and this appeal is taken from the rating action by the RO in April 1992 which confirmed the 10 percent rating. The veteran's arguments might be construed as raising a claim for entitlement to a total rating based on individual unemployability. However, this issue is not inextricably intertwined with the certified issue, and the attention of the RO is drawn thereto for appropriate initial review. CONTENTIONS OF APPELLANT ON APPEAL It is argued that the veteran's back disorder causes him more severe impairment than reflected in the current 10 percent rating, that his back problems hinder him in his work, and that he has ongoing pain. The veteran has argued that the evidence provided by Dr. Paoli has been ignored by the VA in assigning the current evaluation, and that although prior specialized tests may have been negative, he should be given additional evaluations to determine the cause of his problems. 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 veteran 's claim for an increased evaluation for his low back disorder in excess of 10 percent. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the appellate issue has been obtained. 2 .The veteran complains of pain on motion; limitations of motion are no more than slight; X-rays show mild osteoarthropathy in the lumbosacral spine area without additional pathology including confirmed radicular neuropathy. 3. The veteran's low back disorder is not unusual, does not require frequent periods of hospitalization and does not cause unusual interference with work other than contemplated within the schedular standards. CONCLUSION OF LAW The criteria for an increased evaluation for myositis of the lumbosacral paravertebral muscles in excess of 10 percent are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.59, Diagnostic Codes 5021-5003, 5292, 5295 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION In general, a veteran's allegation of increased disability establishes a well-grounded claim. Proscelle v. Derwinski, 2 Vet.App. 269 (1992). The Board finds that the facts relevant to the issue on appeal have been properly developed and, accordingly, the statutory obligation of the VA to assist the veteran in the development of his claim has been satisfied in accordance with 38 U.S.C.A. § 5107(a). Criteria In assessing the veteran's service-connected disabilities, in general, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Board has also considered all regulatory provisions which are potentially applicable through the assertions and issues raised in the evidence of record as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55 (1994). The Schedule for Rating Disabilities provides for rating myositis as degenerative arthritis on the basis of limitation of motion of the affected parts. 38 C.F.R. Part 4, Diagnostic Code 5021. With any form of arthritis, painful motion is an important factor of disability. In this regard, guidelines have been set forth to assist in determining the nature of the pain, i.e. facial expression, muscle spasm, crepitation, etc., are all factors which may be utilized in that assessment. 38 C.F.R. § 4.59. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes involved. When the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application of each major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is assignable with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. With such involvement and occasional incapacitating exacerbations, a 20 percent rating is assignable under 38 C.F.R. § 4.71a, Diagnostic Code 5003. Evaluations are assignable for lumbosacral strain at zero percent when there are subjective symptoms only; a 10 percent rating is assignable with characteristic pain on motion. A 20 percent rating is assignable when there is muscle spasm on extreme forward pending loss of lateral spine motion, unilateral, in standing position. A 40 percent rating is assignable when severe, with listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295. Limitation of motion of the lumbar spine is rated as 10 percent disabling when slight, 20 percent when moderate, or 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5292. In this case, a rating reflecting the degree of impairment from the veteran's myositis (rated by comparison to degenerative arthritis, and thereafter on limitation of motion), can be equitably assigned using the provisions of 5295 which contemplates the characteristic pain on motion, or 5292 which reflects the limitation of motion; these appear equally appropriate. There appear to be no other more appropriate provisions under which the veteran might be rated. Evidence In November 1976, the veteran was awarded service connection for lumbosacral paravertebral muscle myositis based on service medical records reflecting that the veteran injured his back when lifting weights in service in 1975. A noncompensable rating was assigned. Thereafter, medical examinations have shown no X-ray evidence of degenerative changes in the low back. The 10 percent rating assigned by the Board in 1991 was based primarily on his subjective complaints of pain on motion. Office records from Lidia Carib, M.D., indicated examination of the veteran in October 1991. The veteran had complained of low back pain since 1975, which had started when lifting weights while in the Marines, and which had progressed routinely until about 3 years before when it was again aggravated. The veteran complained of radiation in the lower extremities, right greater than left, with a "current-like" sensation and numbness. He said the pain became worse when he coughed, and on standing, walking or sitting for long periods of time. He said he had obtained recent relief from physical therapy. On examination, there was evidence of tenderness and spasm in the lumbosacral area. Leg lengths were equal. There was active anterior flexion of 30 to 45 degrees, and back flexion of 10 degrees, all with pain. There appeared to be no neurological deficits but the veteran complained of back pain with straight leg raising and Patrick's tests, bilaterally. Dr. Carib diagnosed chronic lumbosacral strain, and opined that given the current findings, other studies might be undertaken. The veteran underwent a comprehensive VA orthopedic examination in January 1992. The veteran reported a history of back injury in service, and that he now has discomfort and pain elicited and exacerbated by prolonged sitting, standing, bending and lifting. On examination, he stood erect. Gait and stance were normal. There was flattening of the lumbar lordosis and pain to pressure with moderate spasms. Motion was backward flexion to 70 degrees, extension to 10 degrees, lateral flexion to 30 degrees and rotation to 40 degrees right and left. There was no weakness or muscle atrophy of the extremities. Straight leg raising elicited back pain, 70 degrees to 140 degrees bilaterally. CT scans at multiple levels was normal except at L-4/L-5 and L-5/S-1, where there was mild degenerative osteoarthropathy, bilaterally, and a Schmorl's node at the superior end plate, L-5. 1994. It was noted that MRI and EMG studies had been performed in December 1991. The pertinent diagnoses were lumbar paravertebral myositis and degenerative joint disease. A statement was received from R. Paoli-Bruno, M.D., dated in January 1993, which was translated from the original Spanish at the Board in keeping with Board Chairman's Memo 01-92-13 of March 24, 1993. The physician indicated that the veteran remained under his care, and it was recommended that he continue to take cited medications; diagnosis was back pain syndrome with possible lumbosacral radiculopathy to be ruled out. The physician noted that although EMG and MRIs had been negative, since the veteran continued to have clinical picture of back pain, he suggested the possibility of repeated MRI and EMGs might be done to completely rule out an organic etiology for his symptoms and condition. Analysis While the veteran argues that clinical examinations have not shown the actual degree of impairment to which he is subjected, the recent VA and private physicians' clinical findings are consistent with one another in describing the degree of impairment caused by the service-connected back disorder. In assessing the veteran's low back pathology, his myositis is manifested by X-ray evidence of minimal osteoarthropathy, which is rated by comparison to degenerative arthritis. In this regard, the veteran's subjective complaints of pain are taken into consideration. However, his overall limitation of motion as described on examination is not more than slight, and absent additional objective pathology, an evaluation in excess of 10 percent is not warranted. The veteran has maintained that Dr. Paoli's statement was ignored by the VA. In this regard, the physician's statement failed to describe additional disability which would merit consideration of a higher rating. Since all disability evaluations are rated on the basis of average impairment of earning capacity, the usual functional limitation on his work caused by his back disability is already contemplated within the schedular guidelines. Utilizing 38 C.F.R. § 4.7, the clinical findings do not more nearly approximate the criteria for an evaluation in excess of 10 percent. Extraschedular Ratings In exceptional cases where the schedular standards are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability may be approved provided the case presents such an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The veteran has not submitted evidence tending to show that the disability caused by his low back disorder is unusual, or that it causes marked interference with work other than as contemplated within the schedular provisions discussed herein, or requires frequent periods of hospitalization as to warrant an extraschedular increased evaluation. Id. ORDER The appeal for an increased evaluation in excess of 10 percent for service-connected myositis of the lumbosacral paravertebral muscles is denied. RENÉE M. PELLETIER 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.