BVA9505643 DOCKET NO. 91-43 507 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an increased evaluation for residuals of a low back injury with status post-operative lumbosacral herniated nucleus pulposus, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carolyn Wiggins, Associate Counsel INTRODUCTION The veteran served on active duty from August 1983 until November 1984. This appeal arises from an October 1989 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York which assigned a 20 percent evaluation for a low back injury with herniated nucleus pulposus. The veteran has requested an earlier effective date than March 27, 1989, for payment of a 20 percent disability evaluation. As this issue has not been developed or certified for appellate review it is referred to the RO for appropriate action. At his personal hearing the veteran raised the issue of service connection for an injury to the right knee. As this issue has not been developed or certified for appellate review it is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that an increased evaluation for his injury to the low back with herniated nucleus pulposus is appropriate in that the various manifestations of this disability are more severe than currently evaluated and productive of a greater degree of impairment than is reflected by the evaluation currently assigned. 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 preponderance of the evidence is against an increased evaluation for a low back injury with post-operative residuals of herniated nucleus pulposus. FINDING OF FACT The veteran's injury to the low back with postoperative residuals of herniated nucleus pulposus, produce no limitation of motion and bilateral radiculopathy with no neurological signs. The level of these symptoms is not shown to be severe in degree. CONCLUSION OF LAW A 20 percent evaluation, but no more for residuals of an injury to the low back with status postoperative lumbosacral herniated nucleus pulposus, is warranted. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. § 4.71 and Part 4, Diagnostic Code 5293 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). He has presented a claim which is plausible. The Board is satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991). The VA has the duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet.App 589 (1991). These regulations include 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition. The provisions of 38 C.F.R. § 4.2 require that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 provides that in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems, and medical examiners must furnish, in addition to the etiological, anatomical, pathological, laboratory, and prognostic data required for ordinary medical classification, a description of the effects of the disability upon the person's ordinary activity. Moderate limitation of motion of the lumbar segment of the spine warrants a 20 percent evaluation. A 40 percent evaluation requires severe limitation of motion. 38 C.F.R. Part 4, Diagnostic Code 5292 (1994). A 20 percent evaluation requires moderate intervertebral disc syndrome with recurring attacks. A 40 percent evaluation requires severe intervertebral disc syndrome with recurring attacks with intermittent relief. A 60 percent evaluation requires pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. 38 C.F.R. Part 4, Diagnostic code 5293(1994). This section provides that if there is a question as to which of two evaluations should be applied the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (1993). In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided 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 (1994). 38 C.F.R. § 3.102, 4.7 (1994), provides that when a reasonable doubt arises regarding the degree of disability such doubt should be resolved in favor of the claimant. The Board will begin its consideration of the veteran's claim by reviewing the history of the veteran's low back injury and muscle spasm due to old injury. In February 1984 service medical records reveal that the veteran reported having low back pain and muscle spasm due to an old back injury. X-rays revealed a small fracture of the L-3L-4 vertebrae. He had radiating pain down his right leg. He was placed on a physical profile and given instructions to limit his physical training. On service separation examination in November 1984 the list of defects included sciatica. A March 1989 rating decision service connected the veteran for a low back injury and assigned a noncompensable rating. A VA examination in March 1989 diagnosed herniated nucleus pulposus. An October 1989 rating decision increased his evaluation to 20 percent for his low back injury with herniated nucleus pulposus. A copy of a private medical record from March 1992 contains an MRI of the lumbosacral spine. The impression on the report is: Diffuse L1-2 disc bulge. Small central L2-3 disc protrusion . Extruded central and right posterolateral L3-4 disc herniation, with caudal migration of disc material to the level of the right L4 lateral recess as described above. This associated with thecal sac or root compression. A moderate-sized central and right L4-5 disc herniation is also noted as described above. Clinical correlation is recommended. In April 1992 the veteran had a hemilaminectomy of L-4 with excision of L-3-4 and L4-5 discs. In June of 1992 he was prescribed physical therapy. In a report to his private physician from his physical therapist in July 1992, lumbar range of motion was within full range of motion, straight leg raising was to 90 degrees. The veteran only complained of intermittent low back pain which was associated with exercise or extended standing. On a VA examination in July 1992, straight leg raising was normal both actively and passively to 80 to 90 degrees with out pain. The reflexes were 2 plus and equal, in both patella and Achilles reflexes. There was minimal hypalgesia on the right in the distribution of L-3, L-4 and L-5, which was most marked distally. There were no other sensory defects at that time. Subjectively the veteran had a pulling sensation in the right buttock area radiating into the right hamstrings on maximal exercise. There was no malignancy present at that time. The preoperative MRI showed clearly herniated nucleus at the levels of L3-4 and L4-5 and a disc bulge at the level of L2-3. The examiner commented that an electromyogram at that time would not be expected to show any improvement yet. The diagnosis was status post laminectomy and removal of herniated nucleus pulposus and mild residual radiculopathy on the right more than the left, at L4 more than L5, there is a form for cranial nerve examination or diseases. There is no cranial nerve disorder. On VA examination of the peripheral nerves in June 1994, power was 5/5. There was no atrophy. Straight leg raising was negative. "SENS: T&PP OK." There was no paraspinal spasm. There was no facet tenderness. There was a well healed midline lumbar scar. The diagnosis was chronic pain syndrome, bilateral L2-5 radiculopathy, by description, a normal examination. At the VA examination of the spine in June 1994 he stood erect with his shoulders and hips level. He was able to stand on his heels and toes and could squat. Straight leg raising was to 70 degrees on the right and left. His reflexes were within normal limits on the right and left. His limbs were of equal length. He had a 6 inch non tender laminectomy scar. There were no postural abnormalities or fixed deformities. Range of motion was 80 degrees for forward flexion, 20 degrees for backward extension, 20 degrees for left and right lateral flexion, and 35 degrees for left and right rotation. All motions produced some pain. There was no evidence of neurological involvement. The diagnosis was status post laminectomy at L5-S1, with narrowing of intervertebral disc space at L4-5 and limbus vertebra at L2-L3. The veteran's subjective complaints include reduced work time, the elimination of all sports activities or heavy work and pain in the low back with bilateral radiculopathy with numbness and tingling. To meet the criteria for an increased evaluation the veteran would have to demonstrate either severe limitation of the range of motion of the lumbar spine or severe intervertebral disc syndrome. On examination the veteran's back has demonstrated range of motion that shows little limitation. The evidence does not support an increased evaluation based on limitation of motion of the lumbar spine. The veteran in his testimony at his personal hearings in January 1988, December 1990 and June 1994 states that he has difficulty riding in a car. He says the motion of the vehicle causes him to develop back pain. He says he is no longer able to participate in athletics. He is hesitant to pick his children and must restrict he movements when he plays with them. He says he has missed work time due to his back pain. He works as an insurance salesman and reschedules his appointments on days his back is painful and tries to do paper work. He says that the surgery has improved his back pain but it has not completely resolved. He is unable to walk for long periods. The veteran's testimony is credible as to his symptoms but not as to their severity. On examination there was no demonstrable muscle spasm. The reflexes were present and equal. There was 5/5 strength of the extremities. There was some pain elicited on motion. There were no neurological findings. Bilateral radiculopathy was diagnosed. The criteria for a 60 percent evaluation have clearly not been met. A 40 percent evaluation requires severe, recurring attacks with intermittent relief. The veteran has described taking Tylenol for pain. On examination he said he missed time from work. In his testimony he said he had a back brace or belt he wore when does strenuous activity. The symptoms described by the veteran are no more than moderate in degree and the examination demonstrated no more than moderate disability. The veteran's representative has requested that 38 C.F.R. §§ 3.102 and 4.7 be applied in this case. The evidence of the degree of severity of the veteran's disability is not so evenly based as to give rise to the application of either section of the code. The evidence does not demonstrate a disability that is so unusual as to qualify for an extraschedular evaluation. The veteran's 20 percent evaluation contemplates that he will have recurring attacks of back pain. The schedular evaluations are considered adequate to compensate for considerable loss of working time from exacerbations proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (1994). An increased evaluation for an injury to the low back with postoperative residuals of herniated nucleus pulposus, is not appropriate in this case. ORDER An increased evaluation for residuals of an injury to the low back with status postoperative lumbosacral herniated nucleus pulposus is denied. SAMUEL E. WARNER 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.