Citation Nr: 9923318	
Decision Date: 08/18/99    Archive Date: 08/26/99

DOCKET NO.  96-26 237	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUES

1.  Evaluation of postoperative invertebral disc disease of 
the lumbosacral spine currently evaluated as 40 percent 
disabling.

2.  Evaluation of hypertension currently evaluated as 10 
percent disabling.


REPRESENTATION

Appellant represented by:	Randolph Frails, Attorney


ATTORNEY FOR THE BOARD

C. L. Mason, Associate Counsel



INTRODUCTION

The veteran had active service from April 1965 to May 1969 
and from April 1970 to July 1985.

This case comes to the Board of Veterans' Appeals (Board) on 
appeal from a September 1995 rating decision of the Atlanta, 
Georgia Department of Veterans Affairs (VA) Regional Office, 
which granted service connection for hypertension assigning a 
noncompensable evaluation and continued the veteran's 20 
percent evaluation for postoperative invertebral disc disease 
of the lumbosacral spine.
Subsequent to the receipt of additional evidence, the RO, in 
a May 1996 rating decision, increased the veteran's 
evaluation for postoperative invertebral disc disease of the 
lumbosacral spine to 40 percent and the veteran's evaluation 
for hypertension to 10 percent effective the date of the 
veteran's claim.

Preliminary review of the record does not reveal that the RO 
expressly considered referral of the veteran's claims for 
increased evaluation for his lumbosacral and hypertension 
disabilities to the VA Undersecretary for Benefits or the 
Director, VA Compensation and Pension Service for the 
assignment of an extraschedular rating under 38 C.F.R. § 
3.321(b)(1) (1998).  That regulation provides that to accord 
justice in an exceptional case where the schedular standards 
are found to be inadequate, the field station is authorized 
to refer the case to the Undersecretary for Benefits or the 
Director, VA Compensation and Pension Service for assignment 
of an extraschedular evaluation commensurate with the average 
earning capacity impairment.  The governing criteria for such 
an award is a finding that the case presents such an 
exceptional or unusual disability picture with such related 
factors as marked interference with employment or frequent 
periods of hospitalization as to render impractical the 
application of the regular schedular standards.  The United 
States Court of Appeals for Veterans Claims (Court) has held 
that the Board is precluded by regulation from assigning an 
extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1998) in 
the first instance; however, the Board is not precluded from 
raising this question, and in fact is obligated to liberally 
read all documents and oral testimony of record and identify 
all potential theories of entitlement to a benefit under the 
law and regulations.  Floyd v. Brown, 9 Vet. App. 88 (1996).  
The Court has further held that the Board must address 
referral under 38 C.F.R. § 3.321(b)(1) only where 
circumstances are presented which the Director of VA's 
Compensation and Pension Service might consider exceptional 
or unusual.  Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).  
Having reviewed the record with these mandates in mind, the 
Board finds no basis for further action on this question.  
VAOPGCPREC 6-96 (1996).


FINDINGS OF FACT

1.  The veteran's postoperative invertebral disc disease of 
the lumbosacral spine has been manifested by demonstrable 
muscle spasm, characteristic pain, persistent symptoms 
compatible with sciatic neuropathy and little intermittent 
relief.

2.  The veteran's hypertension has been manifested by 
diastolic blood pressure readings predominantly of 100 and 
below; systolic blood pressure readings predominantly of 160 
and below; and requiring the ongoing use of hypertensive 
medication.


CONCLUSIONS OF LAW

1.  The criteria for a 60 percent evaluation for invertebral 
disc disease of the lumbar spine have been met.  38 U.S.C.A. 
§§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including 
§§ 4.7, 4.10, 4.40, 4.45 and Diagnostic Code 5293 (1998).

2.  The criteria for an increased evaluation for 
hypertension, currently evaluated as 10 percent disabling, 
have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 
C.F.R. § 4.104, Diagnostic Code 7101 (1998). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran contends that he is entitled to increased 
evaluations for his postoperative invertebral disc disease of 
the lumbar spine and hypertension. 

The Board finds that the veteran's claims are well grounded 
within the meaning of 38 U.S.C.A. § 5107(a)(West 1991).  The 
veteran's contentions regarding an increase in severity of 
his invertebral disc disease of the lumbar spine since it was 
last evaluated by VA are deemed sufficient to render his 
claims plausible.  Proscelle v. Derwinski, 2 Vet.App. 629, 
632 (1992).  As for the issue of increased evaluation for 
hypertension, where the veteran was awarded service 
connection for a disability and subsequently appealed the 
RO's initial assignment of an evaluation for the disability, 
the claim continues to be well grounded as long as the rating 
schedule provides for a higher evaluation and the claim 
remains open.  Shipwash v. Brown, 8 Vet. App. 218, 225 
(1995).  The veteran has not alleged that any records of 
probative value that may be obtained, and which have not 
already been requested by the VA or associated with his 
claims folder, are available.  The Board accordingly finds 
that the duty to assist, as mandated by of 38 U.S.C.A. 
§ 5107(a)(West 1991), has been satisfied. 

The Board has continued the issue of hypertension as 
entitlement to increased evaluation.  The veteran is not 
prejudiced by the naming of this issue.  The Board has not 
dismissed the issues, and the law and regulations governing 
the evaluation of the disability are the same regardless of 
how the issue has been phrased.  See Fenderson v. West, 
12 Vet. App. 119, 125-26 (1999).  There is an important 
distinction between disagreement with the original evaluation 
award and a subsequent claim for an increased evaluation in 
terms of VA adjudicative actions.  However, the Court did not 
provide a substitute name for the issue.  The Board has 
considered whether staged evaluations should be assigned in 
the determination below.  The Board concludes that the 
disability has not significantly changed and a uniform 
evaluation is appropriate.

Disability evaluations are determined by comparing the 
veteran's current symptomatology with the criteria set forth 
in the Schedule For Rating Disabilities.  38 U.S.C.A. § 1155 
(West 1991); 38 C.F.R. Part 4 (1998).

Where there is a question as to which of two disability 
evaluations shall be applied, 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 (1998).

I.  Invertebral disc disease of the lumbar spine

Service medical records indicates that the veteran was seen 
on several occasions during service with complaints of back 
pain and demonstrable muscle spasm of the back.  A May 1984 
reenlistment examination revealed recurrent back pain with 
muscle spasms and the veteran reported these symptoms at his 
May 1985 retirement examination.  A January 1987 private 
medical report shows diagnoses of herniated disc suspected at 
L3-4 and L4-5 and recurrent low back pain and muscle spasms.  
In an August 1985 rating decision, the RO established service 
connection for recurrent back pain with muscle spasms and 
assigned a 20 percent evaluation for that disability under 
Diagnostic Code 5295. 

At a June 1987 VA examination, the veteran complained of 
recurrent low back pain.  On evaluation of the back, there 
was mild tenderness to palpation and free range of motion 
with some limitation in straight leg raising.  The impression 
was mild degenerative joint disease with recurrent low back 
pain.  In an August 1987 rating decision, the RO decreased 
the veteran's evaluation of recurrent back pain from 20 to 10 
percent effective November 1987.  Subsequently, the veteran 
submitted a July 1988 private hospitalization report 
indicating that the veteran underwent a diskectomy at L3-4 
and L4-5 in June 1988.  The diagnosis at discharge was L3-4 
and L4-5 disc herniation.  At an October 1988 VA examination, 
the veteran complained of recurrent back pain and muscle 
spasm.  On evaluation, flexion of the back was limited to 30 
degrees, and the veteran had difficulty with rotation of the 
back to the right or left.  The impression included status 
post vertebral disc disease, status post diskectomy at L3-4 
and L4-5 with residual chronic low back pain.  The RO, in a 
February 1989 rating decision, recharacterized the veteran's 
low back disability as invertebral disc syndrome, restored 
the 20 percent evaluation effective February 1985, awarded 
the veteran a temporary total rating under 38 C.F.R. § 4.30 
effective June 19, 1988, and continued the 20 percent 
evaluation from September 1, 1988.

As set forth in the Schedule for Rating Disabilities, severe 
intervertebral disc syndrome with recurring attacks and 
intermittent relief warrants a 40 percent evaluation.  A 60 
percent evaluation is warranted for pronounced invertebral 
disc syndrome with persistent symptoms compatible with 
sciatic neuropathy with characteristic pain and demonstrable 
muscle spasm with little intermittent relief.  38 C.F.R. Part 
4, Code 5293 (1998).  Severe lumbosacral strain with listing 
of the whole spine to the opposite side, positive 
Goldthwait's sign, marked limitation of forward bending in a 
standing position, loss of lateral motion with osteo-
arthritic changes, or narrowing or irregularity of joint 
space requires a 40 percent evaluation.  38 C.F.R. Part 4, 
Code 5295 (1998).  A 40 percent evaluation is warranted for 
severe limitation of motion.  38 C.F.R. Part 4, Diagnostic 
Code 5292 (1998).

Disability of the musculoskeletal system is primarily the 
inability, due to damage or infection in the parts of the 
system, to perform the normal working movements of the body 
with normal excursion, strength, speed, coordination and 
endurance.  It is essential that the examination on which 
ratings are based adequately portray the anatomical damage, 
and the functional loss, with respect to all these elements.  
The functional loss may be due to absence of part, or all, of 
the necessary bones, joints and muscles, or associated 
structures, or to deformity, adhesions, defective 
innervation, or other pathology, or it may be due to pain, 
supported by adequate pathology and evidenced by visible 
behavior of the claimant undertaking the motion.  Weakness is 
as important as limitation of motion, and a part which 
becomes painful on use must be regarded as seriously 
disabled.  38 C.F.R. §§ 4.10, 4.40, 4.45 (1998).  The Court 
has held that the RO must analyze the evidence of
pain, weakened movement, excess fatigability, or 
incoordination and determine the level of associated 
functional loss in light of 38 C.F.R. § 4.40 (1998), which 
requires the VA to regard as "seriously disabled" any part 
of the musculoskeletal system that becomes painful on use.  
DeLuca v. Brown,  8 Vet. App. 202 (1995).

VA medical records from April 1989 to October 1993 indicate 
that the veteran was seen for continued complaints of low 
back pain.  Evaluations of the back revealed tenderness to 
palpation with muscle spasms and limitation of motion.  
Diagnoses included chronic lumbosacral muscle strain and 
musculoskeletal back pain.  VA medical records from February 
1994 to May 1995, including a December 1994 discharge 
summary, show that the veteran was seen complaining of 
recurrent back pain with radiation down the right leg, 
numbness in the right and left lower legs, and muscle spasm.  
The December 1994 VA discharge summary indicates the veteran 
was admitted for evaluation of intermittent right lower and 
left lower extremity numbness.  An EMG revealed L4-5 
radiculopathy and a MRI of the lumbar spine showed disc 
protrusion at L4-5 and disc herniation at L5-S1 Diagnoses at 
discharge included L4-5 radiculopathy.  Medical record 
evaluations revealed pain and muscle spasms of the 
paravertebral muscles of the lumbar region, and decreased 
sensation to light touch in the lower extremities.  
Impressions included discogenic back pain not relieved with 
medication, radiculopathy of the right leg, advanced low back 
pain with muscle spasm, and degenerative disc disease of the 
lumbar spine.  The RO, in September 1995, continued the 
veteran's 20 percent evaluation.

At an April 1996 VA examination, the veteran complained of 
worsening low back pain since his 1988 surgery to the extent 
that it interferes with his performance of daily activities.  
He also reported that his radiculopathy of the right leg had 
decreased.  On evaluation, there was minimal paraspinal 
tenderness on the right and very marked decreased range of 
motion.  Flexion was 20 degrees, extension was 5 degrees, 
bilateral rotation was 10 degrees, and bilateral bending was 
15 degrees.  It was noted that he felt more flexible than 
noted, but patient cooperation was a problem.  Deep tendon 
reflexes were 2+, sensation was intact, and motor examination 
was 5/5.  A x-ray study of the lumbosacral spine revealed 
degenerative changes of the lumbar spine.  The assessment was 
postsurgical lumbar spine deconditioning and loss of 
flexibility related to his lumbar diskectomy.  The RO, in a 
May 1996 rating decision, increased the veteran's evaluation 
for invertebral disc disease of the lumbar spine to 40 
percent.

A May 1996 VA medical record revealed that the veteran was 
seen complaining of increase back pain with right leg 
numbness.  The veteran reported he was unable to work due to 
symptoms and that muscle relaxants were mildly helpful.  On 
evaluation, the examiner noted muscle spasms and tenderness 
to palpation in the low back.  Range of motion was described 
as markedly decreased with the inability to forward bend, 
extend, or lateral bend.  Strength in the lower extremities 
was 4/5, but was not equal and was noted to be decreased in 
the right lower extremity, deep tendon reflexes were 1+, and 
he was unable to walk on heels.  The impression was 
degenerative joint disease with low back strain.  Additional 
VA medical records from September 1996 to September 1997 show 
continued complaints of chronic low back pain with pain 
radiating into his legs and precluding some of the activities 
of his job.  A June 1997 MRI of the lumbosacral spine 
revealed decreased intervertebral disc space at L3-4 and L4-5 
with associated degenerative changes of the opposing end 
plates of L4 and L5 and posterolateral disc bulge/protrusion 
of the L3 and L4-5 on the left.  Diagnoses included low back 
pain, low back creating difficulty arising and walking, and 
coping with chronic low back.

 A November 1997 private medical report consisting of 
myelogram and CT scan reveal grade I spondylolisthesis at L4-
5 with increased mobility on flexion and reduction with 
extension as well as slight bulging of the discs at L3-4, L4-
5, and L5-S1 and slight narrowing of the diameter of the 
thecal sac at L2-3 thought to be due to short pedicles and 
some ligamentous prominence and hypertrophic change of the 
facet joint.

At a November 1998 VA examination, the veteran complained of 
constant moderate low back pain that was aggravated by 
lifting, pushing, pulling, walking, standing, prolonged 
sitting, and cold weather.  He reported that he felt stiff in 
the morning, his legs felt weak and intermittently gave way, 
that his left leg occasionally drags, and that these symptoms 
were interfering with his job duties as an instructor.  The 
examiner reviewed the medical evidence of record.  On 
evaluation of the lumbar spine, the examiner noted that the 
veteran was able to flex to 30 degrees, but that he began to 
experience pain at 15 degrees.  Extension was limited to 0 
degrees and bilateral flexion was limited to 10 degrees.  
Moderate tenderness of the spinous processes of L2-S1 
vertebral bodies were noted.  The veteran was able to heel 
and toe walk with support, but that he was barely able to 
stand on heel and toe.  His reflexes were intact and equal.  
Diagnoses included chronic lumbosacral spine sprain and 
degenerative disease of the lumbosacral spine.

The veteran advanced that his invertebral disc disease of the 
lumbar spine symptoms cause chronic pain and muscle spasms in 
his low back as well as radiation into his right leg and 
affect his ability to walk, stand, and sit for prolonged 
periods of time.  The Board finds that the veteran's 
invertebral disc disease of the lumbar spine is manifested by 
characteristic pain and demonstrable muscle spasm, persistent 
symptoms compatible with sciatic neuropathy and little 
intermittent relief.  Such findings more closely approximate 
the criteria for a 60 percent evaluation under 38 C.F.R. Part 
4, Diagnostic Code 5293 (1998).  Accordingly, the Board 
concludes that a 60 percent evaluation is now warranted.  38 
C.F.R. Part 4, including § 4.7 and Diagnostic Code 5293 
(1998).  
  
In a precedent opinion dated December 12, 1997, the Acting 
General Counsel of the VA held that the criteria under 
Diagnostic Code 5293, which pertains to intervertebral disc 
syndrome, "involves loss of range of motion because the nerve 
defects and resulting pain associated with injury to the 
sciatic nerve may cause limitation of motion of the cervical, 
thoracic, or lumbar vertebrae."  The Acting General Counsel 
clarified that a veteran cannot be evaluated under both 
Diagnostic Code 5293 for intervertebral disc syndrome based 
in part upon limitation of motion and Diagnostic Code 5292 
(limitation of motion of the lumbar spine) due to the 
provisions of 38 C.F.R. § 4.14 (1998) prohibiting the 
evaluation of "an identical manifestation under two 
different diagnoses."  VAOPGPREC 36-97 (Dec. 12, 1997).  The 
same theory applies to the allegation that the neurologic and 
orthopedic components of disc disease should be separately 
rated.  Moreover, in the instant case, the 60 percent 
evaluation is the maximum evaluation under Diagnostic Code 
5293, and no other codes are applicable.

II.  Hypertension

Service medical records reveal that the veteran's diastolic 
blood pressure rate began climbing into the 90's and around 
100 during his active service in the 1970's.  During his 
later years of service, the veteran's blood pressure readings 
ranged from 110/74 to 140/100.  However, hypertension was not 
diagnosed during service.  At a July 1985 appointment prior 
to retirement, the veteran's blood pressure was 130/90.

VA medical records from February 1988 to March 1990 show 
blood pressure readings ranging from 120/82 to 161/102.  The 
March 1990 medical record notes that the veteran was not on 
medication for high blood pressure and that the veteran's 
blood pressure was not under control.  The diagnosis was 
hypertension.  VA medical records from April 1990 to March 
1995 show blood pressure readings ranging from 107/70 to 
149/100.  In September 1995, the granted service connection 
for hypertension and assigned a noncompensable evaluation.

VA medical records from June 1995 to February 1996 show blood 
pressure readings ranging from 124/84 to 133/98.  At an April 
1996 VA examination, the veteran reported that he had a 
history of hypertension and that it was controlled with 
medication.  On evaluation, his blood pressure was 138/100.  
The assessment included hypertension poorly controlled with 
medications.  An April 1996 VA medical record shows a blood 
pressure reading of 147/93.  Based on this information, the 
RO, in a May 1996 rating decision, increased the veteran's 
evaluation for hypertension to 10 percent effective from 
April 1994, the date of the claim.

In a May 1996 statement, the veteran reported that he had to 
change blood pressure medication and his blood pressure had 
been unstable.  A May 1996 VA medical record revealed a blood 
pressure reading of 126/83 and indicated that the veteran was 
taking Procardia.  VA medical records from August 1996 to May 
1998 reflect blood pressure readings ranging from 125/78 to 
126/87 and that he was on medication for hypertension.   

During an August 1998 hospitalization for cervical 
spondylosis, the veteran's blood pressure readings ranged 
from 120/80 to 130/78.  It was noted that the veteran had a 
history of hypertension.

During an October 1998 VA echocardiogram evaluation, the 
veteran's resting blood pressure was 120/82 and his maximum 
blood pressure was 160/90.  The evaluation was normal stress 
echocardiogram.

On and before January 12, 1998, the Schedule for Rating 
Disabilities directed that a 10 percent evaluation was to be 
assigned for hypertensive vascular disease (essential 
arterial hypertension) when the diastolic pressure was 
predominantly 100 or more, or continuous medication was shown 
necessary for control of hypertension with a history of 
diastolic pressure predominantly 100 or more.  A 20 percent 
evaluation required the diastolic pressure to be 
predominantly 110 or more with definite symptoms.  38 C.F.R. 
§ 4.104, Diagnostic Code 7101 (1997).  

On January 12, 1998, the Secretary of the VA amended the 
portions of the Schedule for Rating Disabilities applicable 
to cardiovascular disabilities including hypertension.  Under 
the amended rating schedule, a 10 percent evaluation is 
warranted for hypertensive vascular disease (hypertension and 
isolated systolic hypertension) when the diastolic pressure 
is predominantly 100 or more; systolic pressure is 
predominantly 160 or more; or where continuous medication is 
shown necessary for control of hypertension with a history of 
diastolic pressure of predominantly 100 or more.  A 20 
percent evaluation requires the diastolic pressure to be 
predominantly 110 or more or the systolic pressure to be 
predominantly 200 or more.  38 C.F.R. § 4.104, Diagnostic 
Code 7101 (1998). 

The Court has clarified that "where the law or regulation 
changes after the claim has been filed or reopened but before 
the administrative or judicial appeal process has been 
conclude, the version most favorable to the appellant should 
. . . apply . . ."  Cohen v. Brown, 10 Vet. App. 128,139 
(1997) citing Fugere v. Derwinski, 1 Vet. App. 103, 109 
(1990). 

Upon review of the record, the Board observes that the 
evidence of record since the veteran's claim for service 
connection in 1994 indicates that the veteran's hypertension 
has been manifested by diastolic blood pressure readings 
ranging from the 70's to the 90's; systolic blood pressure 
readings ranging from the 120's to the 140's; and the need 
for ongoing use of anti-hypertensive medications.  The most 
recent evidence of record indicates that the veteran's 
hypertension is well controlled with medication as his blood 
pressure reading ranged from 120/80 to 130/78.  Only on 
echocardiogram testing in October 1998 did his blood pressure 
reach 160/90.  Thus, the Board finds that the veteran's 
hypertensive cardiovascular disease has been shown to be 
manifested by diastolic blood pressure readings predominately 
of 100 and below; systolic blood pressure readings 
predominately of 160 and below; and the need for ongoing use 
of anti-hypertensive medications.  In the absence of findings 
establishing diastolic pressure readings predominantly of 110 
or more or systolic pressure readings predominantly of 200 or 
more, the Board concludes that an increased evaluation is not 
warranted under either version of 38 C.F.R. § 4.104, 
Diagnostic Code 7101.


ORDER

A 60 percent evaluation for invertebral disc disease of the 
lumbar spine is granted subject to the laws and regulations 
governing the award of monetary benefits.  An increased 
evaluation for hypertension is denied.




		
	LAWRENCE M. SULLIVAN 
	Member, Board of Veterans' Appeals



 


{'dataset': 'bva_opinions'}