Citation Nr: 0005477 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-20 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased rating for herniated nucleus pulposus, lumbosacral spine L4-L5 and L5-S1 with radiculopathy, currently rated as 20 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Nelson, Associate Counsel INTRODUCTION The veteran had active service from August 1987 to March 1993. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from April 1998 and March 1999 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In his November 19998 substantive appeal and March 1999 notice of disagreement, the veteran indicated that he wanted a hearing before a local hearing officer. In correspondence received in April 1999, the veteran indicated that he wished to withdraw his hearing request. FINDINGS OF FACT 1. The veteran's herniated nucleus pulposus, lumbosacral spine L4-L5 and L5-S1 with radiculopathy, post operative has been manifested by low back pain radiating to the right lower extremity with limitation of motion, although improvement following surgery is indicated. 2. The veteran apparently has resumed substantially gainful employment; in any event his only service-connected disability is his low back disability, which is rated 40 percent disabling and which, when evaluated alone and in association with his educational attainment and occupational experience, is not sufficiently disabling as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The schedular criteria for a 40 percent disability evaluation for herniated nucleus pulposus, lumbosacral spine L4-L5 and L5-S1 with radiculopathy, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5293 (1999). 2. The criteria for a total disability rating based on individual unemployability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased rating for a low back disability A mere allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for an increased rating is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). Once a claimant has presented a well-grounded claim, the VA has a duty to assist the claimant in developing facts which are pertinent to the claim. See 38 U.S.C.A. § 5107(a). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue on appeal has been obtained. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If two evaluations are potentially applicable, 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. The veteran's service medical records reveal that he suffered from degenerative disc disease at L5-S1. A March 1993 Physical Evaluation Board indicated that the veteran suffered from L-5 radiculopathy. Based on service medical records and a June 1993 VA examination, in September 1993 the RO granted the veteran service connection for his low back disability and assigned a 20 percent disability rating. A June 1993 VA examination reflects a diagnosis of herniated nucleus pulposus, lumbosacral spine L4, L5, and L5-S1 with radiculopathy. The veteran underwent a VA neurological examination in January 1994. The impression was chronic posttraumatic lumbar radiculopathy, primary sensory involving L5-S1 with some residual bladder dysfunction. An October 1997 VA outpatient treatment record indicates that the veteran complained of right paraspinal muscle soreness. The assessment was low back pain. At a November 1997 VA examination, the veteran complained of pain shooting down to both legs, the right greater than the left. He stated that prolonged sitting aggravated his pain. The veteran's gait was limping to the right and he used the arms of the chair on arising. There was no spasm or atrophy of the paraspinous muscles. Straight leg raising was negative to 70 degrees except for some pain in the hamstring area. Sensation was intact bilaterally, but a questionable decrease in sensation was noted throughout both legs. Range of motion was as follows: forward flexion to 90 degrees, and backward extension to 20 degrees; left lateral movement to 30 degrees, and right lateral movement to 35 degrees; left rotation to 40 degrees, and right rotation to 15 degrees. An MRI of the lumbar spine revealed central disc herniation at L5-S1 without any mass effect on the thecal sac. The diagnosis was lumbar strain with radiculopathy and some decreased range of motion. December 1997 VA EMG testing revealed an impression of bilateral L5 radiculopathy. A January 1998 lumbar myelogram, with post myelogram CT scan, revealed the following impression: medium sized, calcified central focal disc bulge or herniation at L5-S1, slightly greater on the left than the right, encroaching on the left S1 root, without significant compression. A February 1998 private hospital operative report reflects that the veteran underwent a left L5-S1 hemilaminectomy. The final diagnosis was calcified disc, left S-1. An RO rating decision in April 1998 granted a temporary total evaluation for convalescence (for the February 1998 back surgery) under 38 C.F.R. § 4.30 from February 4, 1998 to May 31, 1998. By VA letter dated in July 1998, the veteran was informed that his low back disability evaluation would be adjusted back to the prehospital rate (20 percent) effective June 1, 1998. At a November 1998 VA examination, the veteran complained of constant paresthesia made worse by prolonged sitting. He also complained of constant cramping that lasted less than one minute and felt like his leg was trembling. He denied disturbance of bowel or bladder function. He had a corset which he wore when busy. Physical examination revealed that the veteran walked in a normal and natural manner, and was able to walk upon his heels and toes. His reflexes at the knees, hamstrings, and ankles were 3+ equal and symmetrical. His appreciation of pin prick, touch, and vibration was everywhere normal. The veteran stood with his spine erect. There was no spasm of the paravertebral muscles. A healed surgical scar was noted. Extension at the waist was limited to 15 degrees, and forward flexion was between 75-80 degrees. He was able to tilt 15-18 degrees, and rotation of the spine was 35-40 degrees. The veteran was able to tolerate 90 degrees of straight leg raising on each side. There was minimal lower extremity weakness inadequate to interfere with his motility or posture. The diagnosis was degenerative disc disease at L5-S1, with disc atrophy, Schmorl node, and progressive prolapse of nuclear content taking place over the course of several years. The examiner stated that "there is no doubt that this patient is employable." In a March 1999 statement, the veteran indicated that he had constant pain and numbness in his legs which would worsen upon standing, sitting, or walking. He also indicated that his back pain was causing sleep problems. The veteran stated he thought he was not seeking a 100 percent rating on a permanent basis but that he should get a 100 percent rating from October 1997 to May 1998. The veteran's low back disability is currently rated as 20 percent disabling under the provisions of Diagnostic Code 5293. According to Diagnostic Code 5293, intervertebral disc syndrome, a 20 percent rating will be assigned when recurring attacks are present, a 40 percent rating will be assigned for severe impairment, recurring attacks, with intermittent relief, and a 60 percent rating will be assigned for pronounced disability, with 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, and little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293. After reviewing the evidence, the Board finds that the veteran's low back disability more nearly approximates the criteria for a 40 percent rating under Diagnostic Code 5293. This is certainly the case, in the Board's opinion when you consider the medical evidence from 1992 to the time of his surgery. The record reveals that the veteran's complaints of significant radiculopathy were confirmed by MRI and EMG testing. In reviewing the veteran's back disorder for limitation of range of motion as well as the functional impairment which may be attributed to the associated pain and weakness, see 38 C.F.R. §§ 4.40, 4.45, 4.59 (1998); DeLuca v. Brown, 8 Vet. App. 202 (1995), the Board finds that the evidence shows that the veteran had (prior to his February 1998 left L5-S1 hemilaminectomy) limitation of motion in the lumbar spine. In short, the Board views the record as a whole as leading to the conclusion that the veteran's low back disability picture more nearly approximates the criteria for a 40 percent rating under Diagnostic Code 5293 and entitlement to that rating is established. 38 C.F.R. § 4.7. The Board recognizes that he had good results from the surgery, but his complaints continued. However, the preponderance of the evidence is against a rating in excess of 40 percent for his lumbar spine disability. The Board has considered Diagnostic Codes 5285, 5286, and 5289. However, there is no evidence of fractured lumbar vertebrae or ankylosis to qualify the veteran for a rating in excess of 40 percent under any of those codes. The veteran has reported low back pain with radiation to the lower extremities, and an MRI of the lumbar spine has revealed central disc herniation at L5-S1. However, there was no mass effect on the thecal sac, and no examiner has found or diagnosed pronounced, persistent neurological symptoms associated with the veteran's low back disability, such as sciatic neuropathy with characteristic pain and demonstrable muscle spasm, or absent ankle jerk. After comparing the evidence to the diagnostic criteria set forth under Diagnostic Code 5293, the Board finds that the preponderance of the evidence is against entitlement to a 60 percent rating under Diagnostic Code 5293. As the Board has found that the preponderance of the evidence is against a rating in excess of 40 percent for the veteran's low back disability, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that in this case, the disability picture is not so exceptional or unusual as to warrant a referral for an evaluation on an extraschedular basis. For example, it has not been shown that the veteran's back disability has resulted in frequent hospitalizations or caused a marked interference in his employment. In this regard, the Board notes that the November 1998 VA examiner has opined that the veteran is able to work. Further, in a March 1999 letter, the veteran also indicated that he was able to work. Accordingly, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The veteran and has representative have essentially stated that the November 1998 VA examination was inadequate for rating purposes. However, the Board notes that the examination contained an extensive medical history portion, and referenced a multitude of findings from earlier treatment records, including service medical records. The Board notes that the November 1998 VA examiner conducted a variety of tests, including range of motion testing, reflexes testing, and straight leg-raising. The Board finds that, based on the medical evidence of record, it is able to adequately assess the veteran's condition according to the schedular criteria of Diagnostic Code 5293. Therefore, further examination is not necessary. As the Board has found that the preponderance of the evidence is against a rating in excess of 40 percent for the veteran's low back disability, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the November 1998 VA examination seems to indicate that the veteran has had a lessening of symptoms subsequent to his February 1998 surgery. In the Board's opinion, the RO should reschedule the veteran for another examination to see whether there is confirmation of his postoperative status. II. TDIU Initially, the Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided, that, if there is only one such disability, the disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Factors to be considered are the veteran's education, employment history and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). The veteran is service connected only for a low back disability, currently evaluated as 40 percent disabling. His service-connected low back disability does not entitle him to a combined schedular evaluation higher than the 40 percent currently in effect. In light of the foregoing, the veteran fails to satisfy the minimum percentage requirements for individual unemployability under 38 C.F.R. § 4.16(a), as he does not have one disability ratable at 60 percent or more, nor does he have one disability rated at 40 percent or more, with sufficient additional disability to bring the total to 70 percent or more. Nevertheless, veterans who are unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities shall be rated totally disabled. Therefore, rating boards are to submit to the Director, Compensation and Pension Service, for extraschedular consideration, all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Upon review of the claims file, the Board finds that the evidentiary record does not permit a conclusion that there were any unusual or exceptional circumstances present in the veteran's case as to have warranted its referral to the VA Director of the Compensation and Pension Service. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996). According to the veteran's January 1998 application for increased compensation based on total disability, the veteran has a high school education and some college, and last worked as a trucker and a mechanic in September 1997. At the November 1998 VA examination, the examiner stated as follows: The patient indicated to me that he was looking for work at the time of examination, and it would therefore seem that his assessment of himself is that he is capable of performing some kind of work and, indeed, preparing himself for a career in electrical and electronic industries. Thus, in answer to the question of employability, there is no doubt that this patient is employable. The examiner went on to state that the veteran could be engaged in all but the heaviest form of industrial work. In a March 1999 statement, the veteran indicated that "I am now able to work, but am limiting myself to work not as physically demanding." Based on the foregoing, and especially in view of the fact that there does not appear to be any medical opinion of record which relates that the veteran is unemployable due to his service-connected low back disability, the Board concludes that his low back disability, when evaluated in association with his educational attainment and occupational background, is not shown to preclude a variety of substantially gainful employment. In fact, the veteran himself has essentially indicated that he is currently able to work and is currently seeking employment. Accordingly, the veteran is not entitled to a total disability rating based on individual unemployability. ORDER An evaluation of 40 percent for herniated nucleus pulposus, lumbosacral spine L4-L5 and L5-S1 with radiculopathy is granted, subject to governing regulations concerning payment of monetary awards. A total disability rating based on individual unemployablity is denied. BRUCE KANNEE Member, Board of Veterans' Appeals