BVA9500770 DOCKET NO. 92-22 288 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased rating for residuals of a fracture of the 11th thoracic vertebra with back strain, currently rated 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Alan S. Peevy, Associate Counsel INTRODUCTION The veteran had active military service from October 1972 to January 1984. This case is before the Board of Veterans' Appeals (Board) on appeal from an April 1992 rating decision by the Seattle, Washington, Regional Office (RO). A notice of disagreement was received in June 1992, and a statement of the case was issued in July 1992. The veteran's substantive appeal was received in July 1992. A supplemental statement of the case was issued in August 1992. By decision dated in August 1993, the Board remanded the case to the RO for adjudication of newly raised issues. The case is now again before the Board for appellate review. The veteran is represented by the Disabled American Veterans. Pursuant to the Board's August 1993 remand, the RO adjudicated the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability. Entitlement to this benefit was denied by rating decision dated in May 1994. However, it appears that the only notice to the veteran of that adjudicative action was the premature (prior to any notice of disagreement) issuance of a supplemental statement of the case that same month. It appears that written argument from the veteran's representative's, dated October 25, 1994, constitutes a notice of disagreement as to this issue. Because the RO's determination on the individual unemployability issue will not have an effect on the increased rating issue currently certified on appeal, the issues are not intertwined and therefore need not be adjudicated together. Harris v. Derwinski, 1 Vet.App. 180 (1991). Accordingly, the Board refers this matter to the RO for the necessary procedural steps, including a reexamination of the claim to determine if additional review or development is warranted and, if the benefit sought is not granted, the issuance of a statement of the case (in its proper sequence after the veteran's notice of disagreement) along with clear notice to the veteran and his representative of the need to file a timely substantive appeal if the veteran wishes to perfect the appeal he has initiated on the individual unemployability issue. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 19.26, 20.200 (1993). In its August 1993 remand, the Board also directed the RO to adjudicate the issue of entitlement to Department of Veterans Affairs (VA) vocational rehabilitation. Although the claims file does contain a March 1994 Report of Contact (VA Form 119) to the effect that the veteran is eligible for vocational rehabilitation, it is not clear whether this issue has been adjudicated. The Board again refers this matter to the RO for appropriate clarification and action with the observation that "eligibility" does not necessarily mean "entitlement" under applicable law dealing with VA vocational rehabilitation benefits. 38 U.S.C.A. §§ 3102, 3103 (West 1991). CONTENTIONS OF APPELLANT ON APPEAL It is contended by the veteran and his representative that an evaluation in excess of 20 percent is warranted for the veteran's service-connected back disability. It is maintained that the veteran suffers pain on movement as noted on VA orthopedic examination in August 1993. The examiner also noted pain on both superficial and deep palpation. It is also asserted that the veteran has continuously sought treatment for his back problems over the years and that his back disability led to his eventual retirement. 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 entitlement to an increased rating for residuals of a fracture of the 11th thoracic vertebra with back strain, currently rated 20 percent disabling. FINDING OF FACT The veteran's service-connected disability, described as residuals of a fracture of the 11th thoracic vertebra with back strain, is manifested by complaints of persistent pain with occasional sciatica into the hips; the veteran has a normal gait, both toe and heel walking are normal, there is no visible or palpable muscle spasm, and there is only minimal limitation of motion. CONCLUSION OF LAW An evaluation in excess of 20 percent for service-connected residuals of a fracture of the 11th thoracic vertebra with back strain is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321 and Part 4, including 4.40 and Codes 5285, 5291, 5292, and 5295 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION The issue before the Board involves the assignment of a disability evaluation to approximate the degree of impairment resulting from the veteran's service-connected residuals of a fracture of the 11th thoracic vertebra with back strain. Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 3.321 and Part 4 (1993). Separate diagnostic codes identify the various disabilities. In the instant case, the veteran contends that a rating in excess of the current 20 percent is warranted for his back disability. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet.App. 589, 594 (West 1991). Review of the claims file reveals that the veteran was seen in 1976 with complaints of back pain. These complaints continued during service, and a military medical examination in July 1983 showed tenderness in the mid to low back region with radiological evidence of an old crush injury at the 11th thoracic vertebra level. In December 1983, a military Physical Evaluation Board recommended that the veteran be separated due to his back disorder, and he was separated from service in January 1984 due to physical disability. Based on the report of a VA examination in April 1984 which referenced complaints of variable back pain, service connection was granted for back disability described for rating purposes as residuals of a fracture of the 11th thoracic vertebra with back strain. A 10 percent disability rating was assigned under Diagnostic Codes 5285-5295. The veteran was hospitalized at a VA facility in April 1985 for back complaints. An electromyelogram conducted at that time was reported to be grossly normal, but a developing scoliosis of the thoracic spine was noted. The veteran was seen on a regular basis beginning in 1990 for back complaints. Evidence of record shows that his employment duties were restricted as a result. A medical examination conducted in January 1992 in connection with his employment showed decreased range of motion on flexion and extension, but the veteran was reported to have a normal gait and neurological examination was essentially normal. The veteran related complaints of lumbosacral muscle spasm with pain in the neck and mid-upper back. By rating decision dated in April 1992, the RO increased the evaluation for the veteran's service- connected disability from 10 percent disabling to 20 percent disabling. Additional medical records obtained pursuant to the Board's August 1993 remand show that the veteran was seen on numerous occasions in 1991 and 1992 for back-related complaints which resulted in restrictions on his work activities. Upon VA examination in August 1993, the veteran complained of a dull, aching pain in the thoracolumbar junction which was present most of the time. He further related that this pain would sometimes subside, but be replaced by a sharp pain in this region with some radiation into the hips. Clinical examination showed normal gait with no limp. The veteran was able to heel and toe walk. He could squat without difficulty, there was no visible or palpable muscle spasm present. Passive trunk rotation produces some low back pain, and there was tenderness to both superficial and deep palpation about the thoracolumbar junction. Slight loss of range of motion of the lumbar spine on flexion, extension, rotation and lateral flexion was reported. Straight leg raising in the supine position was slightly limited with complaints of some pain in the low back, but straight leg raising in the sitting position was reportedly negative. A March 1993 radiological study of the thoracic spine reportedly showed evidence of a healed burst fracture at the T-11 level. As noted at the outset, the VA attempts to accurately assign ratings for service-connected disabilities by use of the guidelines set forth in the schedule for rating disabilities. 38 C.F.R. Part 4 (1993). The applicable diagnostic codes in the present case are Codes 5285, 5291, 5292, and 5295. Under the provisions of Code 5285, residuals of a fractured vertebra are rated according to findings of definite limitation of motion or muscle spasm with an additional 10 percent added for demonstrable deformity of a vertebral body. A 60 percent rating is for application under this diagnostic code if there is no cord involvement, but abnormal mobility requiring a neck brace. Under Code 5291, a noncompensable rating is for application when there is only slight limitation of motion of the thoracic spine. A 10 percent evaluation is available under this diagnostic code if there is moderate or severe limitation of motion of the thoracic spine. Under Code 5292, a 10 percent rating is to be applied when there is slight limitation of motion of the lumbar spine. A 20 percent rating is in order when there is moderate limitation of motion of the lumbar spine, and a 40 percent rating is for application when the limitation of motion of the lumbar spine is severe. The provisions of Diagnostic Code 5295 dealing with lumbosacral strain allow for a 20 percent rating when there is muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in the standing position. The next higher rating of 40 percent under Code 5295 requires severe lumbosacral strain manifested by listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo- arthritic changes, or narrowing or irregularity of joint space, or some of the aforesaid manifestations with abnormal mobility on forced motion. After considering the record as a whole, the Board concludes that the preponderance of the evidence compels a conclusion that a rating in excess of the current 20 percent is not warranted at this time. The medical evidence does not show that the residuals of the thoracic fracture result in any abnormal mobility or that a brace of any type is required. Moreover, there does not appear to be clinical evidence of any muscle spasm associated with the veteran's back disorder, nor is there evidence of marked limitation of motion on forward bending, loss of lateral motion with osteo-arthritic changes or narrowing or irregularity of the joint space. There is some objectively demonstrated limitation of motion, and a longitudinal review of the record clearly substantiates the veteran's claim of related pain. However, the limitation of motion is minimal. It is noteworthy with regard to the range of motion of the back, for example, that the veteran was able to flex the lumbar spine 90 degrees when he was examined in August 1993; thus, he was able to bend forward until his back was parallel to the floor. Furthermore, the limitation of motion and the complaints of pain are already contemplated under the current 20 percent evaluation. Because the examination report of August 1993 includes X-ray findings of a healed fracture, the evidence does not establish that there is deformity of a vertebral body warranting an additional 10 percent under the provisions of Code 5285. Finally, the Board has considered the veteran's claim under the provisions of 38 C.F.R. § 3.321(b) (1993) which allow for extra- schedular evaluations under certain circumstances. There is no doubt that the veteran's back disability has had some detrimental effect on his employment, and it appears that the veteran has lost his past position as a police officer as a result. However, the Board is unable to conclude that the veteran's back disability results in such a marked interference with employment or frequent periods of hospitalization as to present such an exceptional or unusual disability picture to warrant an extra- schedular evaluation. In this regard, the evidence of record suggests that the veteran is still capable of various types of less strenuous employment. In fact, although not binding on the Board, there is also of record a January 1993 Social Security administrative decision which further compels the conclusion that the veteran is indeed capable of employment which does not require strenuous physical exertion. In sum, the evidence does not show that the criteria for a schedular rating in excess of 20 percent or for an extra- schedular rating have been met. ORDER The appeal is denied. G. H. SHUFELT 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.