92 Decision Citation: BVA 92-16544 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 89-45 057 ) DATE ) ) ) THE ISSUES 1. Entitlement to special monthly compensation based on the need of the veteran's spouse for regular aid and attendance. 2. Whether the rating action of October 25, 1949, was clearly and unmistakably erroneous in not evaluating the veteran's service-connected arthritis of the lumbar and dorsal spine, and Marie-Strumpell type of the cervical spine. 3. Entitlement to disabilty rating greater than 40 percent for Marie-Stumpell arthritis of the lumbar spine. 4. Entitlement to disabilty rating greater than 20 percent for Marie-Stumpell arthritis of the dorsal spine. 5. Entitlement to disabilty rating greater than 10 percent for Marie-Stumpell arthritis of the cervical spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. W. Greenstreet, Counsel INTRODUCTION The veteran had active military service from January 1941 to November 1945. This matter comes before the Board on appeal from June 1989, August 1989, and January 1991 rating decisions by the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO). The RO received notices of disagreement in July and August 1989, and it issued statements of the case in August and September 1989. The RO received the veteran's appeal in October 1989. The Board of Veterans' Appeals (Board) remanded this case in June 1990 for additional procedural development, and in a June 1991 remand the Board also directed the RO to consider the veteran's claim for an increased rating for his spinal arthritis. In a July 1991 rating action, the RO changed the disability rating for arthritis, lumbar, dorsal and cervical spine, Marie-Strumpell type, rated as 40 percent disabling, to the following ratings: Arthritis, lumbar spine, Marie-Strumpell type, rated as 40 percent disabling; arthritis, dorsal spine, Marie-Strumpell type, rated as 20 percent disabling; and arthritis, cervical spine, Marie-Strumpell type, rated as 10 percent disabling. The case was then returned to the Board where it was docketed in August 1991. The veteran has raised the additional issues of entitlement to service connection for restrictive pulmonary disease as secondary to ankylosing spondylitis and entitlement to an earlier effective date for the disability ratings assigned in the RO's July 1991 rating action. Furthermore, there is no indication that the July l99l rating action considered the issue of a total disability rating by reason of individual unemployability which must be considered as intertwined by virture of 38 C.F.R. § 4.l6. The RO has not addressed those issues and they are referred to it for appropriate action. The Board is proceeding with this decision, despite the presence of unadjudicated issues, in order to avoid further delay with respect to adjudicating the merits of the issues before it. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to special monthly compensation based on the need of his spouse for regular aid and attendance. He avers that she is incontinent, and so requires special clothing, bed sheets and covers. He also emphasizes that she requires a wheelchair for most of her transportation and is unable to walk, to shop or prepare food at home. The veteran also avers that the October 25, 1949, RO decision which assigned a 40 percent disability rating for Marie-Strumpell arthritis of the spine was clearly and unmistakably erroneous. He avers that his spine was ankylosed at that time; therefore, Diagnostic Code 5286 should have applied. He emphasizes that the October 1949 examination did not rule out ankylosis. He also avers that some motion of joints affected by ankylosis is possible, and he emphasizes that Marie-Strumpell arthritis, by definition, eventually leads to ankylosis. With respect to the issue of increased ratings for his Marie-Strumpell arthritis of the lumbar, dorsal, and cervical spine, he contends that the ranges of motion of those regions of his spine are either severely limited or nonexistent, and that he is slumped forward. He asks that the Board consider the provisions of 38 C.F.R. § 4.7 and also resolve all reasonable doubt in his favor. DECISION OF THE BOARD For the following reasons and bases, the Board concludes that: The appellant is entitled to special monthly compensation based on the need of his spouse for regular aid and attendance; that the October 25, 1949, rating action was not clearly and unmistakably erroneous; that the veteran is not entitled to a disability rating greater than 40 percent for Marie-Strumpell arthritis of the lumbar spine; that the veteran is entitled to a 30 percent disability rating for Marie-Strumpell arthritis of the dorsal spine; and that the veteran is entitled to a 20 percent disability rating for Marie-Strumpell arthritis of the cervical spine. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the appellant's appeal. 2. The appellant's spouse is so helpless so as to require the regular aid and attendance of another person. 3. The RO's October 25, 1949, rating action assigning a 40 percent disability rating for Marie-Strumpell arthritis of the spine was reasonably supported by the evidence and was not appealed. 4. The veteran's Marie-Strumpell arthritis of the lumbar spine produces severe limitation of motion. 5. The veteran's dorsal spine is essentially ankylosed in an unfavorable position. 6. The veteran's Marie-Strumpell arthritis of the cervical spine produces moderate limitation of motion. CONCLUSIONS OF LAW 1. The criteria for special monthly compensation for the veteran's spouse based on her need for regular aid and attendance have been met. 38 U.S.C. § 5107(a)(1991); 38 C.F.R. §§ 3.102, 3.351, 3.352(a). 2. The October 25, 1949, rating action assigning a 40 percent disability rating for Marie-Strumpell disease of the spine was not clearly and unmistakably erroneous. 38 U.S.C. §§ 1155, 5107(a)(1991); 38 C.F.R. Diagnostic Codes 5286, 5292. 3. The schedular criteria for a disability rating greater than 40 percent for Marie-Strumpell arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107(a)(1991); 38 C.F.R. § 4.7, Part 4, Diagnostic Codes 5286, 5289, 5292. 4. The schedular criteria for a disability rating of 30 percent for Marie-Strumpell arthritis of the dorsal spine have been met. 38 U.S.C. §§ 1155, 5107(a)(1991); 38 C.F.R. § 4.7, Part 4, Diagnostic Code 5288. 5. The schedular criteria for a 20 percent disability rating for Marie-Strumpell arthritis of the cervical spine have been met. 38 U.S.C. §§ 1155, 5107(a)(1991); 38 C.F.R. § 4.7, Part 4, Diagnostic Code 5290. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran's claims are plausible; therefore, they are well grounded within the meaning of 38 U.S.C. § 5107(a)(1991). We are also satisfied that the RO has properly developed the evidence. As to the issue of entitlement to special monthly compensation based on the need of the veteran's wife for regular aid and attendance, on examination in May 1989 it was reported that she could feed herself and had full use of each upper extremity, but that she used a wheelchair, her gait was poor, and she was incontinent. It was also noted that she was unable to climb or descend stairs and that she could not do laundry or other housework. In a July 1989 letter, a private physician stated that she could not prepare food at home and could not walk well enough to function as a homemaker. In an October 1989 letter, the physician also stated that she required an expanded physical therapy program to help her with the activities of daily living. Based on this information, and after resolving all reasonable doubt in the veteran's favor, we find that the veteran's spouse is so helpless as to need regular aid and attendance. The veteran claims that the October 25, 1949, rating action which assigned a 40 percent disability rating for Marie-Strumpell arthritis of the lumbar and dorsal spine was clearly and unmistakably erroneous. We find that the assignment of the 40 percent disability rating was supported by the greater weight of the evidence. Moreover, the RO did not fail to apply the correct statutory and regulatory provisions to the facts, and so its decision was not clearly and unmistakably in error. Wippracht v. Derwinski, 2 Vet.App. 131, 132 (1992); Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Ankylosis is defined as immobility and consolidation of a joint due to disease, injury or surgical procedure. Dorland's Illustrated Medical Dictionary, 91 (27th ed. 1988). Diagnostic Code 5286 specifically refers to complete bony fixation (ankylosis) of the spine, and bony ankylosis is defined as the union of the bones by a joint by proliferation of bone cells, resulting in complete immobility. Id. The October 1949 examination on which the rating decision was based found that there was moderate limitation of motion of the lower back and that hyperextension and lateral motion were "limited approximately 10 degrees..." Since the normal extension of the lumbar spine is to 35 degrees and lateral flexion is 40 degrees, the veteran had 25 degrees' extension and 30 degrees' lateral flexion. Physician's Guide for Disability Evaluation Examinations, Section 2.23 (1985). Accordingly, it is obvious that there was no complete bony fixation of the veteran's dorsal and lumbar spine. Based on these facts, it is clear that the October 25, 1949, rating action was not clearly and unmistakably erroneous as the RO did not fail to apply the correct statutory and regulatory provisions to the correct and relevant facts. We have noted the representative's contention that Manual M21-1, Section 50.02(b) refers to "limitation of motion of the spine due to ankylosis"; however, as noted, that manual section does not refer to complete bony fixation of the spine as specified in Diagnostic Code 5286. Rather, it would appear that the manual section contemplates a situation where there is partial ankylosis of the spine, with ankylosis at certain intervertebral spaces and no ankylosis at others. Turning to the veteran's claim for an increased disability rating for Marie-Strumpell arthritis of the lumbar spine, his private physician reported in October 1989 that the veteran experienced a stressful, postural forward slump, limitation of forward flexion and side flexion, and pain associated with those motions. On examination in December 1990, the veteran could flex the lumbar spine to 30 degrees, extend to 10 degrees, side bend to 30 degrees on the right and 25 degrees on the left, and rotate 15 degrees to the right and 20 degrees to the left. As noted above, that the veteran could move his spine to that extent demonstrates that he does not have complete bony fixation of the lumbar spine, and so Diagnostic Code 5286 does not apply. Diagnostic Code 5292 provides a 40 percent disability rating for severe limitation of motion of the lumbar spine, and the Board finds as a matter of fact that the degree of limitation experienced by the veteran is severe. Accordingly, the current 40 percent rating is appropriate. As to entitlement to a disability rating greater than 20 percent for Marie-Strumpell arthritis of the dorsal spine, the December 1990 examination revealed that there is virtually no motion in any segment of the thoracic spine, and so this portion of the spine was ankylosed. Diagnostic Code 5288 provides a 20 percent disability rating where there is ankylosis of the dorsal spine in a favorable position and a 30 percent disability rating where it is in an unfavorable position. In view of the veteran's physician's October 1989 report that the veteran experienced "stressful postural forward slump" and in view of Manual M21-1, Section 50.02(b)(2) statement that advanced Marie-Strumpell disease is characterized by a bent over posture, the Board finds that the dorsal spine is ankylosed in an unfavorable position, and so warrants a 30 percent disability rating. Turning to the veteran's claim for a disability rating greater than 10 percent for Marie-Strumpell arthritis of the cervical spine, the normal ranges of motion of the cervical spine are: 30 degrees' forward flexion, 30 degrees' extension backward, 40 degrees' lateral flexion, and 55 degrees' rotation. Physician's Guide for Disability Evaluation Examinations, Section 2.23 (1985). On examination in December 1990, the ranges of motion of the cervical spine were: 35 degrees' flexion, 15 degrees' extension, lateral flexion of 10 degrees in each direction, and rotation to 30 degrees in each direction. In our view, those findings demonstrate that the limitation of motion more nearly approximates the criterion of moderate limitation of motion under 38 C.F.R. § 4.7; therefore, a 20 percent disability rating is warranted under Diagnostic Code 5287. ORDER Special monthly compensation based on the need of the veteran's spouse for regular aid and attendance is granted. The October 25, 1949, rating action was not clearly and unmistakably erroneous in awarding a 40 percent disability rating for Marie-Strumpell arthritis of the lumbar and dorsal spine, and that benefit sought on appeal is denied. A disability rating greater than 40 percent for Marie-Strumpell arthritis of the lumbar spine is denied. A 30 percent disability rating for Marie-Strumpell arthritis of the dorsal spine is granted subject to the laws and regulations governing the effective dates of awards. A 20 percent disability rating for Marie-Strumpell arthritis of the cervical spine is granted, subject to the laws and regulations governing the effective dates of awards. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 WARREN W. RICE, JR. ROBERT D. PHILIPP FRANCIS F. TALBOT NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992), 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.