BVA9501052 DOCKET NO. 93-10 841 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for the service- connected low back disability, currently rated as 40 percent disabling. 2. Entitlement to an increased evaluation for duodenal ulcer disease, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. H. Wetmore, Counsel INTRODUCTION The veteran served on active duty from September 1939 to May 1946 and from December 1950 to May 1964. The Board of Veterans' Appeals (Board) received this case on appeal from a June 1991 rating decision by the RO. In addition to the issues captioned for appellate consideration, the RO considered the veteran's claim for an increased evaluation for arteriosclerotic heart disease. A 60 percent evaluation was granted in an October 1992 rating decision and the veteran has not expressed disagreement with that determination; accordingly, the Board will consider the two matters set forth above. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the limitation of motion of his back makes him unable to tie his shoes or otherwise bend over. He also asserts that he has been losing strength in his legs since 1989 and has severe back pain. He claims that more than a 20 percent evaluation should be assigned his duodenal ulcer because he has had nine hemorrhages and still gets a severe burning sensation if he eats the wrong food. 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 for the claim for increase and supports the assignment of a 60 percent rating for the service-connected low back disorder and against the claim for increase for the service-connected duodenal ulcer disease.. FINDINGS OF FACT 1. The veteran's service-connected low back disability with arthritis and discogenic disease probably is productive of residual disablement which more nearly approximates that of a pronounced degree. 2. The veteran's duodenal ulcer disease is productive of no more than moderate impairment because he is not shown to be experiencing related anemia or weight loss or more than 2 or 3 incapacitating episodes of severe symptoms of 10 days in duration per year. CONCLUSIONS OF LAW 1. An evaluation of 60 percent for the service-connected low back disability is warranted. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5289, 5292, 5293, 5295 (1993). 2. An evaluation in excess of 20 percent for duodenal ulcer disease is not warranted. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.114, Diagnostic Code 7305 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran's claims are well grounded because he alleges that there has been an increase in the level of disability of these service-connected disabilities. 38 U.S.C.A § 5107; Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Board also finds that no further assistance is required to develop his claims because the current record is adequate for rating purposes. I. Lumbar Strain with Arthritis The veteran's service-connected disability is considered under 38 C.F.R. § 4.71a, Diagnostic Code 5003, regarding arthritis, and Diagnostic Code 5295, regarding lumbar strain. Arthritis is evaluated under limitation of motion, when such is compensable, of the joint involved. Limitation of motion of the lumbar spine is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5292, when there is less than complete limitation of motion. The veteran has been assigned a 40 percent evaluation because the limitation of motion which has been evaluated as severe. There is no higher evaluation assignable based on limitation of motion when the joint is not ankylosed. However, a higher evaluation of 60 percent is for application in cases of pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings approximate to the site of the diseased disc, little intermittent relief. It is clear from the record that the veteran's lumbar spine is not ankylosed. In addition, the most recent VA examination found "severe" degenerative joint disease of the lumbar spine which is consistent with the currently assigned 40 percent evaluation. He is receiving the maximum schedularly provided for lumbar strain. However, the evidence of record does suggest the presence of related neurological findings consistent with intervertebral syndrome which warrant the assignment of a higher rating for the overall low back disability. The April 1991 examination noted that the veteran has "obvious lumbosacral disk disease with radiation down both legs," and subsequent private treatment records from 1991 confirmed the presence of back pain with L3 radiculopathy on the right. The most recent examination by VA in November 1992 noted decreased sensation as the only evidence of neurologic involvement, and the Board finds that the overall manifestations attributable to the service-connected low back disability probably are more nearly consistent with that of a pronounced degree. Hence, based on a review of the entire evidentiary record, the Board finds that an increased rating of 60 percent is warranted for the service-connected low back disorder. II. Duodenal Ulcer Disease Duodenal ulcer disease is evaluated under 38 C.F.R. § 4.114, Diagnostic Code 7305 which provides that a 20 percent evaluation may be assigned when it is moderate, with recurring episodes of severe symptoms 2 or 3 times a year averaging 10 days in duration or with continuous moderate manifestations. A 40 percent evaluation may be assigned when a duodenal ulcer is moderately severe, with impairment of health manifested by weight loss and anemia or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. A 60 percent evaluation may be assigned when a duodenal ulcer is severe, with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena and manifestations of anemia and weight loss productive of definite impairment of health. While the veteran contends that episodes of severe symptoms in the past are shown by the record, he is not shown to have experienced manifestations averaging 10 days in duration more than 2 or 3 times a year. There has been no hospitalization for the duodenal ulcer symptoms since 1986. The VA examinations in April 1991 revealed that the veteran was well nourished. The physical examination then revealed the abdomen was soft and non-tender. The laboratory studies were not evaluated as showing anemia. The X-ray studies showed findings consistent with a chronic duodenal ulcer disease. When the veteran testified at the RO hearing in July 1992, he reported experiencing gastrointestinal hemorrhages about nine times. However, he indicated that he experienced a "burning sensation" for which he took an antacid pill a couple times a month and that the pain lasted only a couple of days. Under these circumstances, the Board finds the veteran's duodenal ulcer is not shown to be productive of more than moderate disability. Thus, an increased rating is not warranted. ORDER An increased evaluation of 60 percent for the service-connected low back disability is granted, subject to the regulations controlling disbursement of VA monetary benefits. An increased rating for duodenal ulcer disease is denied. STEPHEN L. WILKINS 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.