[INDEX]{.underline}

Court of Veterans Appeals Cases

[Docket Number]{.underline} [Name]{.underline} [Page]{.underline}

90-1542 Benn 1

90-570 Proscelle 7

Copies of Court Decisions containing useful examples

[Docket Number]{.underline} [Name]{.underline}

91-650 Boykin 9

90-1252 Bustin 12

90-1513 Hughes 16

BVA Memorandum 01-92-23, dated August 10, 1992 19

List of \"No Recommended Action\" Cases 23

[DECISION ASSESSMENT DOCUMENT]{.underline}

[DOCKET NO.]{.underline}: 90-1542

[NAME]{.underline}: Benn v. Derwinski

[ISSUE(S)]{.underline}: Rating decision issues; reduction in evaluations

[ACTION BY COURT]{.underline}: Reversal [DECISION DATE]{.underline}:
7/21/92

[Held]{.underline}: (1) Reduction in evaluation was improper under the
provisions of 38 CFR 3.344(a).

\(2\) Issue presented to BVA and to the Court was improperly stated.

[Facts]{.underline}: The veteran\'s disability evaluation, which had
been in effect for more than 5 years, was reduced from 30% to 20% based
on a single examination. The veteran appealed the decision, and the
issue stated on appeal was \"claim for increase.\"

[Court Analysis]{.underline}: Citing [Dofflemyer v.
Derwinski]{.underline}, 2 Vet. App. 277, 279 (1992), the Court stated
that the BVA incorrectly stated the issue \"in terms of whether
appellant was entitled to an increased rating; in fact and in law, the
issue presented to the BVA, and to this Court, is not whether the
veteran was entitled to an increase but whether the reduction of
appellant\'s rating from 30% to 20% was proper.\" The Court found that
the provisions of 38 CFR 3.344(a) applicable to ratings which have been
continued for long periods of time for diseases subject to temporary or
episodic improvement cannot be reduced on one examination unless all the
evidence of record clearly warrants the conclusion that there has been
sustained improvement and that examination was as full and complete as
the examination on which payments were authorized or continued. The
Court ordered that the September 7, 1990, decision be reversed and that
the appellant\'s 30% rating be restored effective the date of reduction.

[RECOMMENDED VBA ACTION(S)]{.underline}: Recommend that a copy of this
decision assessment document be furnished the ROs to underscore the need
to properly state the issues on rating decisions and Statements of the
Case, and to reaffirm that the provisions of 38 C.F.R. 3.344(a) must be
complied with.

[ACTION BY DIRECTOR, C&P SERVICE]{.underline}:

[Approved]{.underline}?

[X]{.underline} [/s/]{.underline} [8/3/92]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

DOCKET NO.: 90-570

[NAME]{.underline}: Proscelle v. Derwinski

[ISSUE(S)]{.underline}: Reopened claim; New and material evidence; Duty
to assist

[ACTION BY COURT]{.underline}: Remand [DECISION DATE]{.underline}:
7/24/92

[Held]{.underline}: When a veteran claims that his/her service-connected
disability has undergone an increase in severity since a prior claim,
the current claim is a new claim and not subject to the provisions of 38
U.S.C. 7104(b).

[Facts]{.underline}: The veteran suffered a fracture of the right
maxilla in service in June 1956. Service connection for residuals of
that fracture evaluated as 0% disabling was established. In January
1987, BVA upheld the denial of a claim for an increased evaluation. At
that time, the Board also noted that the veteran had filed a claim for
service connection for a nervous disorder, but did not decide the claim.
In 1989, the veteran submitted another claim for an increase in the
disability evaluation. VA outpatient records reflected treatment in 1987
for schizophrenia, which was reported to have had its onset 20 years
earlier. On his VAF 1-9, he stated he believed his disability had
increased in severity and that he rated a higher disability. He also
stated that he was unemployed and requested that VA consider
unemployability as a basis for his claim. At a personal hearing, he
testified that the SC maxillary fracture had caused a nervous condition
which had caused him problems in retaining employment. The BVA upheld
the denial of an increased evaluation based upon the outpatient
treatment records.

[Court Analysis]{.underline}: After review of the record, the Court
concluded that the BVA erred in failing to assist the veteran in
developing the facts pertinent to his claim for an increased rating for
the SC condition, and in failing to adjudicate the veteran\'s claims for
SC for a psychiatric condition as secondary to the maxillary condition
and for a total disability rating based on unemployability. The Court
held that the claim for an increased rating on appeal is not reopened
claim subject to [Manio]{.underline} because the veteran claimed that
his SC disability had undergone an increase in severity
[since]{.underline} that prior claim. The current claim is thus a new
claim. It is not subject to 38 U.S.C. 7104(b) prohibiting reopening of
previously disallowed claims except upon new and material evidence. The
veteran only needs to submit a well grounded claim. Since the BVA had no
record of the current level of the disability, its duty was to assist
the veteran by conducting a thorough and contemporaneous medical
examination. The Court also pointed out that the hearing officer was
required to suggest to the veteran that he submit, or seek to have VA
obtain, medical evidence of the then-current level of the SC disability.
He/she was also required to suggest to the veteran the submission of
evidence that would be advantageous for his claim that his current
psychiatric disability was causally related to his SC disability.

[RECOMMENDED VBA ACTION(S)]{.underline}: A copy of this assessment
document should be provided to the regional offices as a reminder to
hearing officers of their duty to assist claimants during hearings. When
hearing officers provide advice to claimants concerning evidence that
could be advantageous to their claims, the suggestions must be
documented in the claims file.

[ACTION BY DIRECTOR, C&P SERVICE]{.underline}:

[Approved]{.underline}?

[X]{.underline} [/s/]{.underline} [8/17/92]{.underline}

Yes No J. Gary Hickman Date

UNITED STATES COURT OF VETERANS APPEALS

No. 91-650

CLIFTON E. BOYKIN, APPELLANT,

v\.

EDWARD J. DERWINSKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before HOLDAWAY, Associate Judge.

MEMORANDUM DECISION

HOLDAWAY, Associate Judge: Appellant appeals a December 14, 1990,
decision of the Board of Veterans Appeals (BVA or Board) which denied an
increased rating for appellant\'s already service-connected right knee
disability and denied secondary service connection for disorders of
appellant\'s left knee and elbow. The Secretary of Veterans Affairs
(Secretary) has filed a motion for summary affirmance in this case. The
Court has jurisdiction of the case under 38 U.S.C. 7252(a) (formerly
4052(a)).

On August 14, 1972, appellant was awarded a 10% rating for arthrotomy,
right knee. The 10% rating was confirmed in 1978. On February 2, 1989,
appellant suffered injury to his left knee and left elbow after what the
hospital discharge summary described as:

> \[The appellant\] was playing basketball and injured his left knee
> when he jumped. He felt a sudden snap and was unable to support
> himself with the left knee. He also fell on his left elbow having
> sudden onset of pain.

The records of hospital treatment were submitted to the Department of
Veterans Affairs (VA) Regional Office (RO). On March 3, 1989, appellant
requested that his disability rating for his right knee be increased
based on those treatment records. On August 11, 1989, the RO denied an
increased rating for appellant\'s service-connected right knee condition
stating that the treatment records submitted showed no treatment of the
right knee.

On a VA Form 1-9, appellant stated:

> On February 28, 1989,I injured my left knee while participating with
> several Vietnam veterans in a brief non-competitive throw and catch
> exercise, during our break period. When it came my turn, I caught the
> ball and attempted to throw it. When I attempted to jump and throw the
> ball my right knee locked and I angled my bodyto fall on the left side
> to attempt to avoid further injury to my service connected right knee.
> This resulted in my left arm and knee being seriously injured.
>
> Although I have since received intensive therapy \[sic\], I am
> experiencing weakness in my left arm which was fractured also and I
> have an obvious limp, weakness and limited use of my left knee as well
> as my right knee.

After a personal hearing at which appellant testified on January 12,
1990, a VA hearing officer continued the denial of service connection
for the left knee and left elbow disorders.

A VA medical examination was done on April 23, 1990. On May 9, 1990, the
RO again denied service connection for the left knee and elbow
conditions stating that \"\[a\] review of the hospital
report\...show\[ed appellant\'s\] hospitalization was necessary after
injuring \[appellant\'s left\] knee while playing basketball.\"

On December 14, 1990, the BVA issued a decision denying an increased
rating for appellant\'s right knee disorder and denying secondary
service connection for left knee and left elbow disorders. The Board
stated:

The Board has evaluated the evidence of record in light of the
contentions presented on appeal, and the testimony provided by the
veteran at a hearing conducted by the originating agency. His contention
that he suffers from chronic disorders of the left knee and left elbow
as the result of his service-connected disability of the right knee has
not been substantiated by the evidence of record. A review of the
hospital summary pertaining to an admission during February and March
1989, discloses no references to chronic disorders of the left knee and
left elbow as the result of his service-connected disability of the
right knee\.... The discharge summary merely states the veteran was
playing basketball and injured his left knee when he jumped. He felt a
sudden snap and was unable to support himself with the left knee. He
therefore fell on his left elbow and felt the onset of pain\....

In later dated statements of record, the veteran describes his injuries
to the left elbow and knee in a different manner\.... The veteran\'s
more recent description of his injuries to the left elbow and left knee
are not corroborated by contemporaneous medical documentation\.... The
Board finds no causal relationship to exist between the
service-connected disability of the right knee and development of
disorders of the left elbow and left knee which are shown to have been
occasioned independently and irrespective of the service-connected post
arthrotomy of the right knee.

The veteran was afforded the benefit of an examination by the VA in
April 1990. An examination of the right knee disclosed healed scarring,
generalized tenderness to palpation primarily on the medial aspect of
the knee, significant guarding and slight varus-valgus wobble. The above
clinical findings were rather minimal in nature and the veteran
otherwise performed a satisfactory heel and toe walk, demonstrated a
satisfactory gait pattern and could only squat one-half way down and
rise. Radiographic studies confirmed mild degenerative changes. The
above clinical description of the disability of the right knee does not
lead the Board to conclude that increased impairment has occurred which
would warrant the assignment of a higher rating\....

[Clifton E. Boykin]{.underline}, BVA 90-45095, at 5-6 (Dec. 14, 1990).

Inexplicably, appellant\'s attorney argues that it was improper for the
BVA to consider the hospital report because it was \"hearsay\" evidence.
He cites the Federal Rules of Evidence and 38 C.F.R. \_ 1.783(t) (1991).
That regulation pertains to the VA Board of Contract Appeals. It is not
applicable to proceedings before the BVA. BVA proceedings are
non-adversarial in nature. See 38 C.F.R. \_ 20.700 (formerly \_19.157)
(\"Proceedings will not be limited by legal rules of evidence, but
reasonable bounds of relevancy and materiality will be maintained.\")
Because the BVA was reviewing a non-adversarial administrative
adjudication that was not governed by the rules of evidence and that
consisted, of necessity, largely of hearsay evidence, it would be
nonsensical to apply the Federal Rules of Evidence to the BVA. The Board
panel in this case did exactly what it was supposed to do. It considered
conflicting evidence and, in a clear and rational manner, explained why
it chose one version of events rather than another. The Board\'s
decision in this respect is entirely plausible and so must be affirmed.
See [Gilbert v. Derwinski]{.underline}, 1 Vet.App. 49, 53 (1990).

After consideration of appellant\'s brief, the Secretary\'s motion, and
a review of the record, it is the holding of the Court that appellant
has not demonstrated the BVA committed either legal or factual error
which would warrant reversal or remand. The Court is also satisfied that
the BVA decision satisfies the \"reasons or bases\" requirements of 38
U.S C. 7104(d)(1) (formerly 4004(d)(1)), and the benefit of the doubt
doctrine of 38 U.S C. 5107(b) (formerly 3007(b)). See
[Gilbert]{.underline}, 1 Vet. App. at 53-57. Summary disposition is
appropriate. See [Frankel v. Derwinski]{.underline}, 1 Vet.App. 23
(1990). The Secretary\'s motion is GRANTED and the decision of the Board
is summarily AFFIRMED.

DATED: June 15, 1992

UNITED STATES COURT OF VETERANS APPEALS

No. 90-1252

JANICE L. BUSTIN, APPELLANT,

v\.

EDWARD J. DERWINSKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before KRAMER, Associate Judge.

MEMORANDUM DECISION

KRAMER, Associate Judge: Appellant, seeking Dependency and Indemnity
compensation under 38 U.S.C. 1310 (formerly 310), appeals a March 16,
1990, decision of the Board of Veterans Appeals (BVA) denying her
spouse, a deceased veteran, entitlement to service connection for the
cause of his death. The Court affirms.

I

Factual Background

The veteran served on active duty from June 1940 to July 1947. R. at
109. The record on appeal indicates that the veteran, who died in
October 1988, had jaundice of unknown origin once during service, did
not have a diagnosis of hepatitis during service, and was not
service-connected for any condition. R. at 84, 116-17; Supplemental
Record (S.R ) at 1 (Jaundice is defined as \"a syndrome characterized by
\... deposition of bile pigment in the skin, mucous membranes and sclera
with resulting yellow appearance of the skin.\" Dorland\'s Illustrated
Medical Dictionary 865 (27th ed. 1988).) At an undetermined time
subsequent to service, it was discovered, during surgery for bleeding
diverticulitis of his colon, that the veteran had cirrhosis of the
liver. R. at 129. The veteran\'s death certificate indicates that his
death resulted from senile dementia caused by multiple small cerebral
vascular accidents (MCVA) and that no autopsy had been performed. S.R.
at 1. On March 29, 1989, Dr. Palmer J. Texada, a private physician,
opined regarding the cause of the veteran\'s death that \"if the \[MCVA
the veteran\] had was due to bleeding into the brain then possibly the
cirrhosis [could]{.underline} be a factor. If his \[MCVA\] was due to a
blood clot in the brain then it would be unlikely that the cirrhosis
would be a factor.\" R. at 127 (emphasis added). On April 13, 1989, Dr.
Thomas W. Davis, a private physician, stated:

The veteran had hepatitis while in the service and it was thought that
his cirrhosis was probably due to that. I feel that there is good reason
to think that the cirrhosis, which he suffered, was due to the hepatitis
he had in the service. [I am unable to make any comment]{.underline} [as
to the relationship of that to his stroke and to his]{.underline}
[subsequent death]{.underline}.

R. at 129 (emphasis added). The record does not contain any evidence
causally linking the veteran\'s one episode of jaundice in service with
the hepatitis that Dr. Davis mentions in his April 1989 letter. The BVA
determined in relevant part:

Although it is conceded that there may have been some form of liver
disorder in service, a liver disorder was not in any way implicated in
the veteran\'s death which was due solely to cerebral vascular
disease\.... Although we sympathize with the appellant for the loss of
her husband, in the absence of any medical evidence to show that
cerebrovascular disease was present in service or shortly thereafter,
the Board finds no reasonable basis upon which to award service
connection for the cause of her husband\'s death.

The veteran was treated during service for jaundice, which may have been
a manifestation of a liver disorder.

A liver disorder was not a factor in the veteran\'s death.

[Janice L. Bustin]{.underline}, BVA 90-12059, at 4-5 (Mar. 16, 1990).

In her appeal to the Court, appellant argues (1) that the BVA erred in
concluding that \"the liver disorder did not have anything to do with
\[the veteran\'s\] death\" and (2) that the case should be remanded for
\"additional medical evidence\" under the duty to assist requirement
because appellant had presented a plausible, hence, well-grounded claim.
Appellant\'s Br. at 3.

II

Analysis

In order for a claim for service connection for the cause of the
veteran\'s death to be well-grounded, there must be evidence showing a
linkage between the veteran\'s in-service jaundice and the ultimate
cause of his death from MCVA. Cf. Rabideau v. Derwinski, 2 Vet.App. 141,
144 (1992) (appellant does not present a plausible claim, triggering the
duty to assist, where, without any present diagnosis of hypertension and
without any evidence linking hypertension to stroke, he alleges that
sporadic high blood pressure readings in service led to hypertension
which, in turn, caused his stroke).

The only evidence that relates to causal connection are the statements
that Dr. Davis and Dr. Texada submitted subsequent to the veteran\'s
death. R. at 127, 129. Dr. Davis asserted that the veteran had hepatitis
in service that probably caused his cirrhosis, but he was unable to
comment on the relationship of cirrhosis to the cause of the veteran\'s
death from MCVA. Dr. Texada stated that cirrhosis of the liver may have
been a factor in the veteran\'s death if the MCVA was caused by bleeding
and not by blood clotting. The Court agrees with appellant that, based
upon Dr. Texada\'s statement, the BVA erred in categorically discounting
the possibility that a liver disorder may have been implicated in the
veteran\'s death. In addition, the BVA erred in its assertion that in
order to award service connection, MCVA must have been present in
service or shortly thereafter. All that is required is a sufficient
showing of linkage between the in-service jaundice and MCVA. The lapse
of time may be a factor in the determination but it is not conclusive.
38 U.SC. 1310 (formerly 1110), 101(16), 1110 (formerly 310); C.F.R.
3.303, 3.304, 3.310, 3.312, 3.102 (1991). Nevertheless, based on the
analysis stated below, because appellant has failed to establish a
well-grounded claim, these errors are harmless. 38 U.S.C. 7261(b)
(formerly 4261(b)).

Viewing the evidence of record in the light most favorable to appellant,
the most that it shows is that hepatitis [probably]{.underline} caused
cirrhosis which, in turn may have been a factor in the MCVA. There is no
evidence, however, to show any probable causal nexus between the
in-service jaundice documented at page 84 of the record, and the
hepatitis that Dr. Davis referenced in his statement. There is nothing
in the record to indicate that Dr. Davis had any actual knowledge
regarding the veteran\'s in-service condition. Dr. Davis simply stated,
more than 40 years after the event, that the veteran had hepatitis in
service. Nothing in his 1989 letter indicates any previous involvement
with the in-service condition. Hence, it can only be concluded, that,
the veteran had jaundice in service. Consequently, despite these two
doctors statements, there is no evidence creating a possible link
between the one bout of jaundice in 1947 and the veteran\'s death from
MCVA in 1988. Because of the absence of this linkage, appellant\'s claim
is not well-grounded and the duty to assist is not triggered. Rabideau,
2 Vet.App. at 144.

III

Conclusion

The Court holds that the decision of the BVA contains neither factual
nor legal error which would warrant reversal. See [Gilbert v.
Derwinski]{.underline}, 1 Vet App. 49 (1990). Summary disposition is
appropriate. See [Frankel v. Derwinski]{.underline}, 1 Vet.App. 23
(1990). Therefore, the motion of the Secretary of Veterans Affairs for
summary affirmance is granted and the decision of the BVA is AFFIRMED.

DATED: MAY 21, 1992

UNITED STATES COURT OF VETERANS APPEALS

No. 90-1513

JOHN D. HUGHES, APPELLANT,

V.

EDWARD J. DERWINSKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before FARLEY, Associate Judge.

MEMORANDUM DECISION

FARLEY, Associate Judge: Appellant, John D. Hughes, served in the Air
Force from August 1957 to June 1983. R. at 396. In a rating decision
dated January 9, 1985, appellant was awarded a 50% rating for
\"adjustment disorder with depression (formerly rated bipolar disorder
manic coded 9206),\" effective from June 14, 1983. R. at 455-56.
Subsequently, in a rating decision dated January 23, 1989, the Regional
Office (RO) reduced appellant\'s rating to 30%, effective April 1, 1989.
R. at 481. The Board of Veterans Appeals (Board or BVA), in a November
15, 1990, decision, inexplicably chose to frame the issue not in terms
of the propriety of the rating reduction but entitlement to an increased
rating for a manic-depressive disorder, currently evaluated as 30%
disabling. When the Board upheld the 30% evaluation, a timely appeal to
this Court followed.

On December 13, 1991, appellant filed an informal brief. On March 9,
1992, the Secretary of Veterans Affairs (Secretary) filed a motion for
summary affirmance, for acceptance of the motion in lieu of a brief, and
for a stay of proceedings pending a ruling on this motion. Appellant did
not file a response to the motion.

The BVA\'s incorrect framing of the issue notwithstanding, the issue on
appeal is the propriety of the reduction of appellant\'s rating. See
[Peyton v. Derwinski]{.underline}, 1 Vet.App. 282, 286-87 (1991), and
[Dofflemyer v. Derwinski]{.underline}, 2 Vet.App. 277, 279-80 (1992).
Moreover, \"the circumstances under which rating reductions can occur
are specifically limited and carefully circumscribed by regulations
promulgated by the Secretary.\" [Dofflemyer]{.underline}, 2 Vet App. at
280.

The applicable regulations, 38 C.F.R. 3.343 and 3.344, are not even
cited by the BVA in its November 15, 1990, decision. While it is clear
that the BVA committed error in its framing and its treatment of the
issue, it is also clear that the scope of this Court\'s review is
expressly limited by the rule of prejudicial error. See 38 U.S.C.
7261(b) (formerly 4061(b)l); [Thompson v. Derwinski]{.underline}, 1
Vet.App. 251, 254 1991). Further, where the record enables the Court to
rule on the merits of an appeal, it may do so rather than ordering a
remand which would merely impose additional burdens on the Secretary
\"with no benefit flowing to the veteran.\" [Soyini v.
Derwinski]{.underline}, 1 Vet.App. 540, 546 (1991).

The record reflects that appellant\'s rating was reduced from 50% to 30%
on the basis of a 1988 examination by a private psychiatrist (R. at
476); Department of Veterans Affairs (VA) outpatient treatment records,
dated from 1987 to 1989 (R. at 491-504); the transcript of an RO hearing
conducted on November 7, 1989 (R. at 522); a VA psychological
examination, dated December 7, 1989 (R. at 545); and another
psychological examination conducted on January 24, 1990 (R. at 546). Dr.
Robert B. Woolley, the private psychiatrist who conducted the
examination on October 25, 1988, indicated that, at that time, appellant
manifested no symptomatology of a manic-depressive disorder and was not
\"impaired in the ability to make personal, social, and occupational
adjustments.\" R. at 478.

The Secretary\'s regulations governing reductions in ratings, 38 C.F.R.
3.344(a) and (c) (1991), provide in relevant part:

\(a\) [Examination reports indicating improvement]{.underline}\....
Ratings on account of diseases subject to temporary or episodic
improvement, e.g., manic depressive or other psychotic reaction,
epilepsy, psychoneurotic reaction\...will not be reduced on any one
examination, except in those instances where all the evidence of record
clearly warrants the conclusion that sustained improvement has been
demonstrated\....

\*\*\*

\(c\) [Disabilities which are likely to improve]{.underline}. The
provisions of paragraphs (a) and (b) of this section apply to ratings
which have continued for long periods at the same level (5 years or
more).

Pursuant to 3.344(a) and (c), unless all the evidence of record
establishes that a claimant\'s condition has undergone sustained
material improvement, a disability rating that has existed for five
years or more may not be reduced on any one examination.
[Dofflemyer]{.underline}, 2 Vet.App. at 280. In
[Dofflemyer]{.underline}, the Court reversed a BVA decision, reducing
the appellant\'s rating from 100% to 10% on the basis of one cursory
examination, when the great weight of evidence in the record indicated
that a reduction was not in order. Here, the RO reduced appellant\'s
rating from 50% to 30%, and the BVA upheld the 30% rating on the basis
of numerous examinations as well as on evidence of record indicating
that appellant\'s condition had improved.

Therefore, upon consideration of the record, appellant\'s informal
brief, and the Secretary\'s motion for summary affirmance, it is the
holding of the Court that appellant has not demonstrated that the Board
committed either factual or legal error which would warrant reversal.
[Gilbert v. Derwinski]{.underline}, 1 Vet.App. 49 (1990); see also
[Anderson v. City of Bessemer]{.underline} [City]{.underline}, 470 U.S.
564 (1985); [Danville Plywood Corp. v. United]{.underline}
[States]{.underline}, 899 F.2d 3 (Fed. Cir. 1990). Summary affirmance is
appropriate when, as here, the issue is of relative simplicity and the
outcome is not reasonably debatable. [Frankel v.]{.underline}
[Derwinski]{.underline}, 1 Vet.App. 23 ( 1990). Accordingly, the
Secretary\'s motion for summary affirmance is granted and the decision
of the Board of Veterans\' Appeals is AFFIRMED.

DATED July 7, 1992.

**Office of the Chairman**

**Board of Veterans\' Appeals**

**Washington, D.C. 20420**

August 10, 1992

**MEMORANDUM**

**NO. 01-92-23**

**SUBJ: RATING INTERVERTEBRAL DISC SYNDROME INVOLVING SECONDARY
FOOTDROP**

**1. PURPOSE**

The purpose of this memorandum is to provide guidance to Board sections
in evaluating intervertebral disc syndrome in order that rating
consistency, Board-wide, may be achieved.

**2. BACKGROUND**

It has come to my attention that various Board Sections have taken
inconsistent positions in rating service-connected intervertebral disc
syndrome with secondary footdrop. The majority view seems to be that the
entire disability picture (including the footdrop) is to be rated sixty
percent (60%) as a pronounced disability under Diagnostic Code 5293 of
the rating schedule. The minority view is that a separate forty percent
(40%) rating is assignable for the footdrop under Diagnostic Code 8521.
Both the majority and minority positions would recognize the assignment
of an additional amount of special monthly compensation for the loss of
use of the foot. 38 U.S.C.A. 1114(k) (West Supp. 1992).

**3. APPLICABLE STATUTORY AND REGULATORY CRITERIA**

a\. The Secretary of Veterans Affairs shall adopt and apply a schedule
of ratings of reductions in earning capacity from specific injuries or
combination of injuries. 38 U.S.C.A. 1155 (West 1991).

b\. The rating schedule is primarily a guide in the evaluation of
disability resulting from all types of diseases and injuries encountered
as a result of or incident to military service. The percentage ratings
represent as far as can practicably be determined the average impairment
in earning capacity resulting from such diseases and injuries and their
residual conditions in civil occupations. Generally, the degrees of
disability specified are considered adequate to compensate for
considerable loss of working time from exacerbations or illnesses
proportionate to the severity of the several grades of disability. 38
C.F.R. 4.1 (1991).

c\. The basis of disability evaluations is the ability of the body as a
whole, or of the psyche, or of a system or organ of the body to function
under the ordinary conditions of daily life including employment. 38
C.F.R. 4.10 (1991).

d\. The repercussion upon a current rating of service connection when
change is made of a previously assigned diagnosis or etiology must be
kept in mind. The aim should be the reconciliation and continuance of
the diagnosis or etiology upon which service connection for the
disability had been granted.

38 C.F.R. 4.13 (1991).

e\. The evaluation of the same disability under various diagnoses is to
be avoided. Disability from injuries to the muscles, nerves, and joints
of an extremity may overlap to a great extent. Both the use of
manifestations not resulting from service-connection disease or injury
in establishing the service-connected evaluation, and the evaluation of
the same manifestation under different diagnoses are to be avoided. 38
C.F.R. 4.14 (1991).

f\. To accord justice to the exceptional case where the schedular
evaluations are found to be inadequate, an extraschedular evaluation may
be assigned commensurate with the average earning capacity impairment
due exclusively to the service-connected disability. The governing norm
in these exceptional cases 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. 38 C.F.R. 3.321(b)(1991).

**4. BOARD POLICY IN RATING INTERVERTEBRAL DISC SYNDROME WITH SECONDARY
FOOTDROP**

The Schedule for Rating Disabilities provides a specific Diagnostic Code
for the evaluation of intervertebral disc syndrome. Therefore, the
initial step in rating service-connected discogenic disease is to
consider the specific criteria set forth in Diagnostic Code 5293. When
it is clear from the medical evidence of record that a footdrop is the
result of radiculopathy attributable to a service-connected
intervertebral disc syndrome, a single rating of sixty percent (60%)
ordinarily will be assigned under Diagnostic Code 5293 of the Schedule
for Rating Disabilities. In exceptional cases, an extraschedular rating
may be appropriate under the authority of 38 C.F.R. \_ 3.321(b) (1991).
Development of the clinical evidence should be undertaken when there is
an indication in the record that any peripheral neuropathy may be
secondary to a cause or causes other than the service-connected disc
disease. Additional adjudicative action may then be required.

**5. PROCEDURES FOR RATING INTERVERTEBRAL DISC DISEASE**

Even when intervertebral disc disease is manifested by significant
peripheral neuropathy and such other symptoms as to be characterized as
\"pronounced\" and rated as sixty percent (60%) under Diagnostic Code
5293 of the rating schedule, consideration must also be given to the
appropriateness of an extraschedular evaluation. 38 C.F.R.
3.321(b)(1991). The need for an extraschedular evaluation will be
determined as follows:

When the peripheral neuropathy (secondary to the discogenic disease) is
of such severity as to qualify for ratings of sixty percent (60%) or
eighty percent (80%) under Diagnostic Code 8520 of the rating schedule,
then the orthopedic and neurologic aspects of the discogenic disorder
should be rated separately under Diagnostic Code 8520 and either
Diagnostic Codes 5292, 5294, or 5295 of the rating schedule. The
separate ratings for the neurologic and orthopedic aspects of the
disability will be combined in the usual fashion, which will constitute
the single extraschedular rating for the discogenic disease. Of course,
in arriving at the proper extraschedular evaluation, pyramiding must be
scrupulously avoided. 38 C.F.R. 4.14 (1991)

**6. RATIONALE FOR BOARD POLICY IN RATING INTERVERTEBRAL DISC SYNDROME**

Pronounced intervertebral disc syndrome which is rated sixty percent
(60%) under Diagnostic Code 5293 contemplates a significant level of
peripheral neuropathy appropriate to the site of the diseased disc.
Arguably, an evaluation of sixty percent (60%) under Diagnostic Code
5293 encompasses the severest form of peripheral neuropathy with the
exception of complete or severe incomplete sciatic nerve paralysis. In
order for a herniated disc to cause a complete paralysis of the sciatic
nerve, the herniation would have to cause disruption of function of the
fourth and fifth lumbar and the first, second and third sacral nerve
roots, an anatomically improbable condition. (See [Gray\'s
Anatomy]{.underline}, 1045-54, 27th ed., 1959.) This proposition can be
illustrated as follows:

A rating of forty percent (40%) is the maximum provided for peripheral
neuropathy under Diagnostic Codes 8520-8530 of the rating schedule,
except that complete or severe incomplete sciatic nerve paralysis is
ratable as eighty percent (80%) or sixty percent (60%), respectively,
under Diagnostic Code 8520. Conversely, a maximum rating of forty
percent (40%) is assignable for severe symptoms of limitation of motion,
muscle spasm, abnormal mobility of the spine, etc., under Diagnostic
Codes 5292, 5294, or 5295 of the rating schedule. When two ratings of
forty percent (40%) are combined, the yield is sixty percent (60%). 38
C.F.R. \_ 4.25 (1991). This, of course, is the same evaluation which is
assigned under Diagnostic Code 5293 for a pronounced intervertebral disc
syndrome. It follows that the assignment of a rating for pronounced
symptoms under Diagnostic Code 5293 has the same efficacy as the
assignment of maximum ratings for the orthopedic and neurologic aspects
of the discogenic disease, provided that complete or severe incomplete
sciatic paralysis is not involved.

As provided above, when the discogenic disease is manifested by complete
or severe incomplete sciatic nerve paralysis, an extraschedular
evaluation is appropriate. The assignment of special monthly
compensation for loss of use of a foot, if any, must always be
considered whether the discogenic disease is rated under Diagnostic Code
5293 or on an extraschedular basis.

**7. RESCISSION**

This memorandum is effective until expressly rescinded, modified, or
superseded.

Charles L. Cragin

Chairman

DISTRIBUTION: COE (FOR BVA USE ONLY)

Director, Compensation and Pension Service (21)

Director, Records Management Service (723)