93 Decision Citation: BVA 93-15873

 Y93 
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C.  20420

DOCKET NO.        92-10 922       )    DATE
                  )
                  )
                  )

THE ISSUE

Propriety of an October 1990 rating decision reducing the evaluation
assigned fo
laminectomy for lumbar canal stenosis, removal of herniated disc at
L5-S1, from
percent.

REPRESENTATION

Appellant represented by:  Disabled American veterans

WITNESSES AT HEARING ON APPEAL

Appellant and his wife

ATTORNEY FOR THE BOARD

James A. Pritchett, Associate Counsel

INTRODUCTION

The veteran had active service from February 1971 to February 1973.

This matter came before the Board of Veterans' Appeals (hereinafter
the Board) o
decision of October 1990 by the New York, New York, Department of
Veterans Affai
VA) Regional Office (hereinafter RO), which reduced the evaluation for
the veter
back disability from 60 percent to 40 percent disabling.  The notice
of disagree
January 1991 at a hearing before a hearing officer at the RO.  The
statement of
May 1991.  The substantive appeal was received in July 1991.  The
appeal contain
hearing.  The hearing was held in August 1991.  A supplemental
statement of the
January 1992.  The appeal was received at the Board in July 1992 and
docketed th
veteran is represented in his appeal by the Disabled American Veterans
to which
July 1992.  That organization submitted additional written argument in
October 1

Although the veteran entered a notice of disagreement at the August
1991 hearing
total rating based on individual unemployability in an April 1991
rating decisio
respect to this issue is not of record following the inclusion of the
issue in t
statement of the case.  Accordingly, this decision is limited to the
propriety o
reduction or restoration of a 60 percent schedular rating, as
originally stated
1991 hearing prior to raising the unemployability issue.

CONTENTIONS OF APPELLANT ON APPEAL

It is contended that a single VA examination is not sufficient to
provide a soun
It is asserted that the veteran's disability evaluation had been in
effect for a
provisions of 38 C.F.R. § 3.344 (1992) were not considered by the RO.
It is fur
veteran's disability has rendered him unemployable.

DECISION OF THE BOARD

In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991),
following r
consideration of all evidence and material of record, and for the
reasons and ba
is the decision of the Board that restoration of an evaluation of 60
percent for
lumbar canal stenosis, removal of herniated disc at L5-S1, is
warranted.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition of
the veteran'
by the RO.

2.  Sustained improvement of the service-connected low back disability
had not b
time of the October 1990 rating decision.

CONCLUSION OF LAW

The 60 percent evaluation for status post laminectomy for lumbar canal
stenosis,
disc at L5-S1, should be restored.  38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.
3.344, Part 4, Code 5293.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran is seeking restoration of a 60 percent disability for
status post la
stenosis, removal of herniated disc at L5-S1.  We note that we find
the veteran'
grounded" within the meaning of 38 U.S.C.A. § 5107.  That is, we find
that he ha
which is plausible.  We are also satisfied that no further assistance
to the vet
mandate of 38 U.S.C.A. § 5107.

In June 1988 the Board granted a 60 percent evaluation for the
disability at iss
Board included a letter of January 1985 by G. B. Singh, M.D., which
stated that
undergone surgery in December 1984 for a herniated lumbar disc at
L5-S1 and for
The letter states the veteran's postoperative recovery was slow and
the veteran
pain in the lower back and partial weakness in his right leg.  Also
before the B
January 1985 by Reza Khatib, M.D., which states that the veteran was
status post
lumbar canal stenosis and removal of a herniated disc at L5-S1.  The
veteran sti
his back and right lower extremity while walking or sitting in one
position for
1985 letter, Dr. Singh reported that the veteran was admitted to a
private hospi
lumbar radiculopathy.  The letter states the veteran underwent
reexploration of
a herniated disc at L4-5.  The herniated disc was excised and a
foraminotomy of
was performed on the right side.  The veteran tolerated the procedure
well, but
the back and weakness in the lower limbs.

The reports of January 1986 surgical and neurological examinations by
the VA ind
complained of back pain which radiated to both ankles with
intermittent numbness
The veteran walked with the aid of a cane and moved slowly.  The
surgical examin
veteran was wearing a lumbosacral support.  Trunk flexion was to 20
degrees and
degrees.  Rotation was to 20 degrees bilaterally.  There was no gross
atrophy of
Straight leg raising was positive to 45 degrees bilaterally.  Knee
jerks were sl
ankle jerk was absent.  There was tenderness in the lumbosacral area
and muscle

The report of the neurological evaluation in January 1986 notes the
veteran stat
more than half a block.  He stated that coughing aggravated his
backache.  The r
veteran sometimes walked with his trunk in flexion and used a cane for
ambulatin
status post laminectomy at L4-5, narrowing at the disc of the L4-5
interspace, a
herniated disc.  The neurological impression was postoperative
laminectomy for h

At an RO hearing in September 1986, the veteran testified that his
legs became n
severe back pain with sharp radiating pains into the legs.  He stated
he was una
blocks or climb stairs.  He stated he had been unable to work for many
years bec
stated that he took pain medication every four hours and received
outpatient tre
and that he used a back brace.  The veteran testified that he required
assistanc
bathing, because of his back.

Brooklyn Hospital medical reports indicate the veteran was
hospitalized in Janua
for lumbar radicular syndrome due to postoperative scars at the L5-S1
nerve root
recurrent L4, L5-S1 radiculopathy.  The veteran underwent exploration
of the pre
wound and a hemilaminectomy, resection of the operative scar tissue at
the L5-S1
and a foraminotomy of the L5-S1 nerve root on the left.

The report of a March 1987 VA surgical examination indicates that the
veteran ha
radiating down the posterolateral aspect of his lower extremities to
the feet.
limp and used a cane but did not use a back brace.  No muscle spasm
was present.
extension of the back were each to 5 degrees.  Lateral bending was to
10 degrees
was to 10 degrees on the left and to 30 degrees on the right.
Straight leg rais
degrees and on the left to 10 degrees.  The diagnosis was residuals of
three lam
the neurological evaluation notes that ankle reflexes were not
elicited.  Passiv
extremities elicited pain without radiation.  Straight leg raising was
limited t
veteran stated he did not feel pain when pricked with a pin in the
lower extremi
he responded with movement at times while denying sensation.  The
X-ray report o
spine showed evidence of a laminectomy at L4 to L5 and to a lesser
extent in the
Curvature and alignment were normal.  The intervertebral spaces
appeared to be o
diagnosis was status post laminectomy, L4-L5.

By rating decision in July 1988, the RO implemented the Board's
decision awardin
evaluation of 60 percent, effective April 1985.

The report of a VA rating examination of April 1990 notes the veteran
complained
to include cramps in his legs and headaches.  The report indicates the
veteran h
for several years and had had surgery for disc problems on three
occasions, 1984
report notes the veteran stood erect and ambulated with great
difficulty using a
tenderness over the site of operational scars.  No muscle spasm was
noted.  Flex
spine was to 45 degrees, extension was to 10 degrees, lateroflexion
was to 10 de
rotation was to 20 degrees, bilaterally.  Supine straight leg raising
was to 70
straight leg raising test was not performed because the veteran stated
he felt p
atrophy of the muscles was noted.  Sensory testing was described as
unreliable.
for both knees, but the ankle jerk on the left ankle was absent.  The
X-ray repo
laminectomy had been performed at the L4-L5 level.  The diagnosis was
status pos
lumbar disc.

Based on the VA examination in April 1990, as well as private
outpatient records
low back symptoms in March 1990, the disability rating for the
service-connected
was reduced to 40 percent by a rating decision in October 1990.

Under the provisions of 38 C.F.R. § 3.344, it is essential that the
entire recor
medical and industrial history of the veteran be reviewed to ascertain
whether t
and complete.  This provision was not followed in the instant case as
it appears
medical records which had been considered by the Board were not
referred to duri
examination for rating purposes.

Further, ratings will not be reduced on any one examination, except
where all th
clearly warrants the conclusion that sustained improvement has been
demonstrated
the medical evidence which provided the basis for the 60 percent
evaluation gran
1988 demonstrated nearly pronounced functional impairment.  At the
time of the A
examination, the veteran complained of ongoing back and leg pain, and
walked wit
Although the clinical findings in April 1990 were in and of themselves
not indic
given the history of the veteran's low back condition, the Board finds
that sust
been clearly demonstrated.  Accordingly, restoration of the previously
assigned
order.  38 C.F.R. §§ 3.105(e), 3.344(a).  The benefit of the doubt is
resolved i
38 U.S.C.A. § 5107.

ORDER

Entitlement to restoration of a 60 percent disability evaluation for
status post
canal stenosis, removal of herniated disc at L5-S1, is granted,
subject to the r
payment of monetary benefits.

BOARD OF VETERANS' APPEALS
WASHINGTON, D.C.  20420

                                 *
     CHARLES E. HOGEBOOM         (MEMBER TEMPORARILY ABSENT)

WAYNE M. BRAEUER

                                     (CONTINUED ON NEXT PAGE)

*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans'
Appeals Se
direction of the Chairman of the Board, to proceed with the
transaction of busin
assignment of an additional Member to the Section when the Section is
composed o
Members due to absence of a Member, vacancy on the Board or inability
of the Mem
Section to serve on the panel.  The Chairman has directed that the
Section proce
of business, including the issuance of decisions, without awaiting the
assignmen

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 1991), a
decision of
of Veterans' Appeals granting less than the complete benefit, or
benefits, sough
to the United States Court of Veterans Appeals within 120 days from
the date of
decision, provided that a Notice of Disagreement concerning an issue
which was b
filed with the agency of original jurisdiction on or after November
18, 1988.  V
Act, Pub. L. No. 100-687, § 402 (1988).  The date which appears on the
face of t
the date of mailing and the copy of this decision which you have
received is you
taken on your appeal by the Board of Veterans' Appeals.