BVA9502127 DOCKET NO. 93-08 777 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an increased evaluation for chronic recurrent lumbosacral strain, currently rated 20 percent disabling. 2. Entitlement to an increased evaluation for sinusitis, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brynn K. Bloomgren, Associate Counsel INTRODUCTION The appellant had active service from May 1966 to October 1969. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a June 1992 rating decision of the Providence, Rhode Island, Regional Office (hereinafter RO) of the Department of Veterans Affairs (hereinafter VA), which denied entitlement to increased disability evaluations for chronic recurrent lumbosacral strain and for sinusitis. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that an increased disability evaluation is warranted for his low back disorder. He states that his back pain results in time lost from work and interference with sleep. He describes his back pain as radiating, mostly to the right leg. He asserts that the RO did not consider the affect of pain or functional loss in rating the back condition. The veteran also claims that an increased evaluation is warranted for sinusitis. He states that he has frequent headaches which are related to the disorder. He complains that his recent VA examination was inadequate for purposes of rating his service-connected disabilities. 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 evidence supports a 40 percent disability evaluation for chronic recurrent lumbosacral strain, but that the preponderance of the evidence is against an increased disability evaluation for sinusitis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. Lumbosacral strain is manifested by limitation of motion and lack of fluent forward flexion. There is some tightness of the back musculature, pain to pressure at L4, positive straight leg raising, slightly diminished ankle reflexes, and slight sclerosis of the anterior lips at L3-L4, and slight evidence of osteophyte formation. The disorder precludes prolonged standing, bending, or twisting. 3. Sinusitis is manifested by left nasal obstruction. Intranasal examination was within normal limits without evidence of active sinus disease or chronic sinusitis. Headaches were not considered attributable to sinusitis. 4. This case does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render inapplicable the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for a 40 percent disability evaluation for chronic recurrent lumbosacral strain are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, §§ 4.1, 4.2, 4.7, 4.10, 4.29, 4.40, 4.71a, Diagnostic Codes 5292, 5293, 5295 (1994). 2. The criteria for a disability evaluation in excess of 10 percent for sinusitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, §§ 4.1, 4.2, 4.7, 4.10, 4.97, Diagnostic Code 6514 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). A well- grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). There is no indication that the examinations were inadequate for rating purposes. We are satisfied that all relevant facts have been properly developed so that further assistance to the veteran is not required. 38 U.S.C.A. § 5107 (West 1991). Disability evaluations are determined by the application of the schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. The regulations provide that each disability be viewed in relation to its history. 38 C.F.R. Part 4, § 4.1 (1994). Where there is a question as to which of two evaluations shall be applied, the higher 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. Part 4, § 4.7 (1994). I. CHRONIC RECURRENT LUMBOSACRAL STRAIN Service records reflect that the veteran was seen for discomfort at the base of the spine in May 1969, causing difficulty bending over. There was no history of injury reported. He was seen again in June and July 1969 for continued low back pain, and an x-rays revealed spondylolysis and pars defect. The separation examination, dated in September 1969, showed that the musculoskeletal system was normal. Post-service, examination of the back in April 1970 revealed lumbar lordosis, slight spasm and limitation of motion, and positive straight leg raising and positive Fabere-Patrick test on the right. The diagnosis was lumbosacral strain. The RO granted service connection for lumbosacral strain, rated 10 percent disabling, from October 1969. VA outpatient treatment reports dated from the early 1970's through 1974 show continued back pain and radicular symptoms. In September 1971, the RO found that lumbosacral strain was recurring with acute exacerbations of varying intensity, and awarded a 20 percent disability evaluation. The Board denied entitlement to an increased disability evaluation greater than 20 percent in October 1974. According to a private examination report, dated in October 1991, the veteran claimed that he had been doing fairly well with intermittent flare-ups of back pain over the intervening years, but that, over the past two years, he had increasing difficulty with recurrent pain, preventing him from prolonged sitting, bending, or standing. Physical examination revealed definite tenderness over L3-L5 areas with some spasm. There was also some tenderness over the bone itself. Straight leg raising was equivocal on the left, and there was 1+ on the right. Reflexes were normal, bilaterally, but 1+ foot drop in the left foot. Sensation appeared to be intact. The veteran had great difficulty performing toe walking and tandem gait, although there was no difficulty with balance and vibration was intact. The impression was that the veteran clearly had radiculopathy, and may have been developing nerve compression. The examiner opined that radiculopathy was most consistent with worsening disc disease, but he questioned the possibility of advancing "spond(??)". Further tests were recommended. VA examination of the lumbar spine in March 1992 noted subjective complaints of constant pain and radiation to the right extremity at night. The veteran indicated that he performed sedentary work, and that he couldn't sit. No athletics were noted. Upon physical examination, straight leg raising was positive at 45 on the right, and 40 degrees on the left. There was no sciatic tenderness. No postural abnormalities were noted. Forward flexion was accomplished to 45 degrees, but this was not a fluent motion. There was 0 degrees extension, 20 degrees of lateral flexion and 20 degrees of rotation, both on the right and left. Deep tendon reflexes were symmetrical. These were normal at the knees, but slightly diminished at the ankles. Both extensors and flexors of the great toes were normal. There was some tightness of the back musculature and slight pain to pressure at L-4. X-rays showed that the vertebra[e] were in normal position and alignment. There was slight sclerosis of the anterior lips at the L4-L5 level with slight evidence of osteophyte formation. The impression was chronic back strain manifested by limitation of motion as well as slight spondylosis of the lumbar spine. By way of discussion, the examiner noted that persistent tightness of the muscles precluded activities requiring prolonged standing, bending, or twisting. He opined that the condition would probably progress. The veteran appeared at the RO for a personal hearing in October 1992. He testified that back pain prevented sleep. He described pain sometimes radiating to his legs, more so on the right. He said that his back was stiff, and that he could not sit for more than a half hour without needing to walk around. He said about his back "It feels like knots. It actually feels like knots in the middle or across my back [] and that's all the time." He said that he had tried stretching exercises, but that it caused a lot of pain. He complained that medication and therapy have been of little benefit. A private doctor's statement, dated in October 1991, noted recent computerized tomography findings. The margins of the L3-S1 discs appeared normal, and the corresponding foramina were patent. There was adequate spinal canal volume. The impression was: Examination within normal limits. Lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral in standing position, warrants a 20 percent evaluation. Severe lumbosacral strain with 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 osteoarthritic changes, or narrowing or irregularity of joint spaces, or some of the above, with abnormal mobility on forced motion warrants a 40 percent rating. 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5295 (1994). Moderate limitation of motion of the lumbar spine warrants a 20 percent evaluation. A 40 percent evaluation requires severe limitation of motion. 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5292 (1994). Normal ranges of motion associated with the lumbar spine are flexion forward to 95 degrees, extension backwards to 35 degrees, lateral flexion to 40 degrees, and rotation to 35 degrees. VA Physician's Guide to Disability Evaluation Examinations (March 1, 1985). § 2.23, p. 2-10 (Paul M. Selfon, M.D., Editor-in-Chief, 1985). The Board construes "slight" as encompassing a range of motion from two-thirds of normal motion up to normal motion; "moderate" being from one-third of normal range of motion to two-thirds of normal range of motion; and "severe" being from zero motion to one-third of normal range of motion. In evaluating the disability under the criteria for lumbosacral strain, we find that there is moderate limitation of forward and lateral flexion and rotation, and severe limitation of extension. Diagnostic Code 5295 states that if the schedular findings, such as loss of lateral motion with osteoarthritic changes, are present with abnormal mobility on forced motion, then a 40 percent evaluation is warranted. Since there is recent evidence of osteophyte formation, lack of lateral motion, and lack of fluent forward motion to 45 degrees, it is arguable that the disability picture more closely approximates symptoms equatable to severe lumbosacral strain. 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5295 (1994). The record also shows a history of many neurologic symptoms such as positive straight leg raising, radicular pain, and diminished ankle reflex in both VA and private treatment records, which have not been attributed to other origin, and that are not directly addressed by the schedular criteria for lumbosacral strain. Therefore, we may, alternatively, rate the disorder by analogy under the criteria for intervertebral disc syndrome, despite the lack of diagnosis of that disease. 38 C.F.R. Part 4, §§ 4.20, 4.71a, Diagnostic Code 5293 (1994). A 40 percent evaluation is provided when severe with recurring attacks of intervertebral disc syndrome with intermittent relief. Id. The most recent private and VA examination findings support the veteran's testimony that he has suffers chronic recurrent painful and disabling symptoms, which are unrelieved by medication. Finally, we consider the impact of disorder on the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on his functional abilities. 38 C.F.R. Part 4 §§ 4.10, 4.40, (1994). The VA examiner found that muscle tightness results in preclusion of activities requiring prolonged standing, bending, or twisting. With consideration of the relevant schedular criteria as well as the general rating considerations, we find that overall disability picture more closely approximates the criteria for a 40 percent evaluation. 38 C.F.R. Part 4, §§ 4.7, 4.20, 4.71a, Diagnostic Codes 5292, 5293, 5295 (1994). II. SINUSITIS Service medical records show that the veteran was seen for congestion and swollen eyelids in June 1966, diagnosed as bacterial infection, rule out sinusitis. There were later complaints of severe headache and worsening symptoms despite medication. In December 1966, a history of periorbital edema for the past two years, persistent over the past six months, was reported. Sinus studies revealed a cyst of the right maxillary antrum. After a series of unsuccessful treatment attempts, the veteran underwent bilateral Caldwell-Luc antrotomy and a right nasal antrostomy in July 1967. Reports dated in November 1967 reflect that there was little improvement post-operatively. The separation examination dated in September 1969 noted swelling and erythema of the upper lids, bilaterally, and "transumination" of both frontal sinuses. After service, the veteran was examined by the VA in April 1970. The diagnosis was chronic sinusitis. Service connection was granted for chronic sinusitis, considered 10 percent disabling from October 1969 until the present. In May 1972, a mucous cyst in the right antrum was demonstrated by x-ray. Private treatment reports dated from October 1986 through October 1991 show complaints associated with chronic sinusitis. In October 1991, examination revealed definite signs of infection behind the right tympanic membrane as well as purulent mucous in the posterior nasal pharynx. The veteran was examined by the VA for rating purposes in March 1992. He complained of headaches about twice a week, associated with nausea, lasting about two hours. He also complained of bilateral nasal obstruction. The external nose, nasal vestibule, septum, floor of the nose, inferior meatus, middle meati, and middle turbinate each appeared within normal limits. The inferior turbinates were swollen on the left side with partial nasal obstruction. The olfactory area was normal and the superior turbinates were not seen. There was no tenderness of the paranasal sinuses, and they were considered to be within normal limits. A sinus x-ray, reportedly performed at the time of the examination was interpreted to show that the sinuses were normal. The radiology report did not accompany the examiner's report. The diagnoses were history of acute sinusitis 1966, chronic sinusitis does not cause headaches, no evidence of active sinus disease now, and no evidence of chronic sinusitis. The veteran testified at his personal hearing in October 1992 that he had lost approximately seven days of work a year due to sinusitis. He said that headaches made him get sick to his stomach, and that he was affected, primarily, by dampness. He described mucous drainage, mixed with blood. Chronic maxillary sinusitis is rated as chronic sphenoid sinusitis under the rating schedule. 38 C.F.R. Part 4, § 4.97, Diagnostic Codes 6513, 6514 (1994). Sinusitis with x-ray manifestations only with mild or occasional symptoms warrants a noncompensable evaluation. Moderate sinusitis with discharge or crusting or scabbing, infrequent headaches warrants a 10 percent evaluation. Severe sinusitis with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting reflecting purulence warrants a 30 percent evaluation. 38 C.F.R. Part 4, § 4.87, Diagnostic Code 6514 (1994). Although the private treatment report submitted by the veteran contains evidence of active infection, more recent medical evidence tends to show that there is neither chronic nor active sinusitis at the present time. Also, the opinion was that the claimed headaches were not caused by the service-connected condition. The veteran's testimony is outweighed by the more probative expert medical opinion since lay persons (i.e., persons without medical expertise) are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Accordingly, an increase is not warranted since severe sinusitis with frequently incapacitating recurrences, severe and frequent headaches, purulent discharge or crusting purulence are not objectively demonstrated. 38 C.F.R. Part 4, § 4.87, Diagnostic Code 6514 (1994). We observe that while the sinusitis is not currently demonstrated, the 10 percent evaluation has been in effect for 20 years and is a protected rating, so it may not be reduced. . See 38 C.F.R. § 3.951 (1994). In reaching our determination, consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether they were raised by the appellant or not as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The evidence does not suggest that the veteran's disability is so unusual so as to render impractical the application of the regular schedular standards demonstrated, such as by marked absence from employment shown due to the service- connected disability or frequent periods of hospitalization, which would warrant the application of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1994). ORDER 1. Entitlement to a 40 percent evaluation for chronic recurrent lumbosacral strain, is granted, subject to the regulations governing the disbursement of monetary benefits. 2. Entitlement to an increased evaluation for sinusitis, currently rated 10 percent disabling, is denied. (CONTINUED ON NEXT PAGE) JACK W. BLASINGAME 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.