BVA9500628 DOCKET NO. 94-00 101 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an evaluation in excess of 40 percent for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from July 1943 to February 1946. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from an October 1991 rating decision of the Nashville, Tennessee, Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which denied entitlement to an evaluation in excess of 40 percent for the appellant's back disability. That rating raised the disability evaluation from 20 to 40 percent. The veteran disagreed, seeking a higher evaluation, giving rise to this appeal. The Board's decision is limited to the issue developed for appellate review. While it is apparent from a July 1993 statement that the appellant has raised a claim for entitlement to disability benefits for residuals of a cerebral vascular accident (CVA) incurred while undergoing August 1992 treatment at a VA hospital, it is unclear as to whether such statement additionally expresses disagreement with a January 1993 rating decision which denied entitlement to service connection for a CVA secondary to the service-connected back disability. In any event, this issue is not inextricably intertwined with the one before the Board, and therefore, such issue is referred to the RO for clarification, and for further appropriate action. Kellar v. Brown, 6 Vet.App. 157 (1994). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he is entitled to an evaluation in excess of 40 percent for his service-connected back disability. He asserts that he currently suffers from severe back pain and muscle spasms associated with degenerative disc disease and associated neurological complications which affect his ability to walk, stand, sit and sleep. 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 appellant'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 supports a 60 percent evaluation for the appellant's service-connected back disability, currently evaluated as 40 percent disabling. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal has been obtained by the RO. 2. The appellant's back disability is currently manifested by subjective complaints of severe, continuous lower back pain which radiates down his legs, as well as recurrent muscle spasms, which affect his ability to walk, stand, sit and sleep. 3. The objective clinical evidence of record demonstrates a sacralization of the fifth lumbar vertebra with associated degenerative disc disease producing spinal stenosis, right radiculopathy and chronic polyneuropathy of the lower extremities. 4. The appellant currently demonstrates severe limitation of motion of his lumbar spine, atrophy of the back muscles, and a drag of his right leg upon walking. 5. The appellant's current back disability is productive of pronounced impairment. 6. The appellant's back disability does not present such an unusual disability picture as to render application of the regular rating schedule provisions impractical. CONCLUSION OF LAW 1. The schedular criteria for a 60 percent evaluation for a back disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.59, 4.71, 4.71a, Part 4, Code 5292, 5293 (1993). 2. The criteria for an evaluation in excess of 60 percent for a back disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.59, 4.71, 4.71a, Part 4, Code 5292, 5293 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we find that the appellant's claim of an evaluation in excess of 40 percent for a back disability is "well grounded" within the meaning of 38 U.S.C.A. 5107(a) (West 1991) and the evidence is adequate, in light of our favorable decision of this issue. The Board further concludes that all pertinent records have been obtained and associated with the claims folder. There is no contention that there are other records that should be obtained, as such, we conclude that the duty to assist has been completed. In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1993); Gilbert v. Derwinski 1 Vet.App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, § 4.1 (1993). Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7 (1993). In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the appellant, as well as the entire history of the appellant's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The appellant's service-connected low back disability has previously been evaluated on the basis of limitation of motion of the lumbar spine. Diagnostic Code 5292 provides that severe limitation of motion of the lumbar spine warrants a 40 percent evaluation. 38 C.F.R. Part 4, DC 5292 (1993). Additionally, as such back disability involves degenerative disc disease with associated neurological symptomatology, DC 5293 must be considered. Diagnostic Code 5293 provides that a 40 percent evaluation is warranted for severe intervertebral disc syndrome with recurring attacks and intermittent relief. A 60 percent evaluation requires pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy (i.e., with characteristic pain and demonstrable muscle spasm and an absent ankle jerk or other neurological findings appropriate to the site of the diseased disc) and little intermittent relief. 38 C.F.R. Part 4, DC 5293 (1993). The evidentiary record reflects that the appellant was treated for low back pain in service. Service connection was granted for sacralization of the fifth left vertebra in a February, 1946 rating decision. Due to limitation of motion in the lumbosacral spine, a 10 percent evaluation was assigned in that same rating. By a rating decision dated in May 1976, the appellant was assigned a 20 percent evaluation for his service-connected sacralization of the fifth left vertebrae, effective January 1976. Subsequently, a 40 percent evaluation was assigned for such service-connected disability by a rating decision dated in October 1991. VA medical reports of record indicate that the appellant has had some disc pathology since at least January 1950. Subsequent VA examinations dated in August 1961 and March 1976, including a 1976 myelogram performed by private physician, confirmed the presence of degenerative disc disease of the lumbosacral spine, between L4 and L5. 1992 and 1993 VA outpatient treatment reports, including spinal x-ray and EMG, indicated advanced degenerative disc disease of the lumbosacral spine with spinal stenosis, right radiculopathy and chronic polyneuropathy of the lower extremities. Furthermore, during a January 1993 personal hearing, the appellant testified that in addition to the severe pain in his back, for which medication provided little relief, he experienced recurrent lower back muscle spasms upon movement. Subsequently, during a July 1993 VA examination, the appellant reported severe pain in his lower back which radiated down both legs, especially the right . He reported that he was forced to walk on the ball of his right foot, dragging his right leg, and only short distances due to the pain. Upon examination, the examiner found the appellant to have a straight back with atrophic muscles, which demonstrated very limited motion upon walking. As reported, the appellant walked abnormally on the ball of his right foot with his knee bent at 10 degrees, dragging his right foot behind him as he stepped with his left. Objective range of motion studies of the lumbar spine indicated forward flexion to 20 degrees, zero degrees of backward extension, and left and right lateral flexion of 5 degrees, all performed with a high degree of pain. The appellant was unable to rotate to the right or left. On neurologic examination there was good strength in the lower extremity, with a 3+ knee jerk on the right. Based on the foregoing, it is concluded that the current medical evidence of record more nearly approximates pronounced intervertebral disc syndrome, thus warranting an evaluation of 60 percent under DC 5293 for such disability. 38 C.F.R. § 4.7. As summarized above, the most recent VA clinical evidence indicates persistent neurological lumbosacral spine symptomatology with accompanying atrophy of back muscles and severe pain, for which there is little relief by medication. Finally, there is no evidence of record of significant or marked interference with daily activities beyond that contemplated by the current schedular provisions, or frequent hospitalizations attributable to the appellant's lower back disability to warrant an extraschedular evaluation in excess of 60 percent. The evidentiary record reflects that the appellant is retired, and has not been hospitalized recently due to his service-connected back disorder. Thus, the Board does not find that this is such an unusual or exceptional disability picture as to render the provisions of the rating schedule inadequate, and therefore warrant an extraschedular evaluation. 38 C.F.R. § 3.321(b) (1993). ORDER An increased evaluation of 60 percent for the appellant's back disability is granted subject to the law and regulations governing the award of monetary benefits. MICHAEL D. LYON 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.