BVA9502921 DOCKET NO. 90-31 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased rating for chronic low back strain, currently evaluated 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD William Harryman, Counsel INTRODUCTION The veteran had active service from October 1974 to February 1977. This case came before the Board of Veterans’ Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, in March 1989, which denied the veteran an increased rating for his service- connected low back disability. Subsequent to the initial adjudication in this case, processing of this appeal has been handled by the RO in Roanoke, Virginia, because of the veteran's change in residence. The Board previously remanded this case in February 1991 and January 1992 for further development of the record. That development has been completed, and the case is now ready for final appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL It is contended by and on behalf of the veteran that his back disability is manifested by severe pain throughout his spine and radiating into his arms and legs, and muscle spasms and marked limitation of motion, warranting a much higher rating. 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 an increased rating for his back disability is not warranted at this time. FINDING OF FACT Chronic low back strain is manifested by moderate limitation of lumbosacral spine motion and muscle spasm, but without loss of lateral spine motion or listing of the spine in either direction; no clear osteoarthritic changes or narrowing or irregularity of any lumbosacral joint space has been demonstrated on X-ray. CONCLUSION OF LAW Chronic low back strain is not more than 20 percent disabling according to the schedular and extraschedular criteria. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59 and Part 4, Code 5292, 5295 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the Board finds that the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded; that is, the claim is not implausible. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Additionally, there is no indication that there are additional, pertinent records which have not been obtained. Accordingly, there is no further duty to assist the veteran in developing the claim, as mandated by 38 U.S.C.A. § 5107(a). Factual background The service medical records show that the veteran was treated on several occasions for complaints of low back pain which was diagnosed as lumbosacral strain. He was hospitalized for treatment of the pain for approximately two weeks; treatment provided included bed rest. The report of his separation examination reflects that examination of the veteran’s back was essentially negative. A rating decision in 1978 granted service connection for low back strain and assigned a noncompensable evaluation. A VA compensation examination was conducted in December 1982. At that time, the veteran complained of muscle spasms in his buttocks and shooting pain down his legs. He reported that he could not exercise because most of the pain occurred with weight bearing. On examination, the veteran was very anxious and in tears. There was left paralumbar spasm, but no tenderness to palpation. Straight leg raising was accomplished to 100 degrees on the left and 90 degrees on the right. The veteran was able to flex his lumbar spine forward to 50 degrees, with lumbar extension to 20 degrees. Reflexes were 2+/2+ throughout. A statement by the examiner appears to objectively verify the veteran’s pain complaints. X-rays reportedly revealed no definite disc space narrowing, although the L4-L5 interspace was slightly smaller than that of L3-L4. A rating decision in December 1982 increased the evaluation for the veteran’s back disability to 20 percent disabling. During the 1980s, VA outpatient records reflect that the veteran periodically complained of increasing severe back pain, radiating into his legs. Examiners indicated that, although clinical findings did confirm the presence of muscle spasm and limitation of back motion, there was a strong psychogenic component to the veteran’s complaints. In October 1986, psychological testing showed that the veteran was highly focused on his physical complaints. However, the report states, those complaints were likely to be exacerbated by his preoccupation with them, as well as by hypochondriacal fixations. The test results indicated a major functional component to his complaints. A number of possible psychiatric diagnoses were offered which included psychophysiological reaction. On VA compensation examination in February 1989, the examiner reported that the veteran was able to flex his lumbar spine forward to 30 degrees and extend it to 10 degrees. Straight leg raising was accomplished to 50 degrees bilaterally. The veteran was unable to squat or to walk on his heels and toes. Another VA examination was conducted in September 1990. At that time, the veteran reported "minimal back pain, occasionally three to four episodes per week." His pain was primarily in his low back, with occasional paraspinal spasms. He also stated that he had occasional lower extremity numbness and weakness. The examiner noted no back deformity and no lumbar spinal tenderness. There was no paraspinal spasm. The veteran was unable to flex forward due to a problem with his balance. Muscle strength was normal throughout, and the neurologic examination was normal as well. Lumbosacral spine X-rays reportedly showed no abnormal findings. The report of an examination by a neurologist reflects essentially identical clinical findings. The veteran was hospitalized in May 1992 at a VA facility for a period of observation and evaluation for a number of problems. The summary of the hospitalization contains few clinical findings regarding the veteran’s back disability. However, the report does state that on observation during the veteran’s daily activities, he exhibited no gait difficulties, did not complain of pain, and had no apparent loss of motion. The report also indicates that the veteran’s significant anxiety and stress were due to factors other than his back disability. Another VA compensation examination was conducted in October 1993. The examiner reported that the veteran was slightly to moderately tender over the lumbosacral area. He was able to flex his spine to 30 degrees and to extend it 10 degrees. Lateral flexion was accomplished to 15 degrees in each direction. He was able to rotate his spine 45 degrees to the left and 30 degrees to the right. Lumbosacral spine X-rays reportedly were unchanged and showed a normal lumbosacral spine. Analysis In general, disability evaluations are assigned by applying a schedule of ratings which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Such evaluations involve consideration of the level of impairment of the veteran’s ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Where 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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Although regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history, 38 C.F.R. §§ 4.1, 4.2, the present level of disability is of primary concern. Francisco v. Brown, No. 93-76, slip op. at 5 (U.S. Vet. App. Sept. 27, 1994). In evaluating the veteran’s claim, all regulations which are potentially applicable through assertions and issues raised in the record have been considered, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). A 10 percent evaluation is warranted for lumbosacral strain where there is characteristic pain on motion. Where there is muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position, a 20 percent rating is appropriate. A 40 percent evaluation requires severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, and narrowing or irregularity of the joint space. A 40 percent evaluation is also warranted if only some of these manifestations are present if there is also abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Code 5295. Slight limitation of motion of the lumbar segment of the spine warrants a 10 percent evaluation. A 20 percent evaluation requires moderate limitation of motion. Severe limitation of motion is required for a 40 percent evaluation. Code 5292. It is clear from the record that the veteran’s complaints relative to his back disability have increased over the last 10- 15 years. It is also clear that the severity of those complaints continues to be influenced by a strong psychogenic component. Service connection is not in effect for any psychiatric disorder. In addition, although the veteran has noted neurological symptoms, e.g., numbness and tingling in his legs and pain radiating into his legs, no recent examiner (including neurologists) has reported any abnormal neurological findings which might possibly account for those complaints. However, although perhaps showing some worsening when compared to those reported during the early 1980s, clinical findings noted on the last few VA examinations do not reflect more than moderate overall limitation of lumbosacral spine motion, and neurological findings have been consistently negative. Restrictions in the ranges of motion have been noted on occasion while, at other times including the May 1992 extended period of hospitalization for observation and evaluation, no limitation of motion was observed. Examiners have sometimes noted the presence of paraspinal muscle spasm. But lumbosacral spine X-rays have not shown any significant disc space narrowing, although reports have been equivocal regarding the height of the L4-5 interspace. The latest X-ray report, however, was interpreted as "normal." No loss of lateral spine motion or listing of the spine to either side has been reported by any examiner. On the basis of the clinical data of record (even without consideration of the amount of any psychogenic component which may be present), the Board concludes that limitation of motion of the veteran’s lumbosacral spine, under the provisions of Code 5292, is not more than moderate. Additionally, the criteria for a 40 percent rating under Code 5295 are not met; none of the criteria for such a rating have been shown to be present. In exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran’s average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the veteran’s disability level. There is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to his low back disorder, that would take the veteran’s case outside the norm so as to warrant an extraschedular rating. The veteran’s complaints of pain, while perhaps at times considerable, are contemplated by the rating schedule and are considered to be adequately compensated by the 20 percent rating currently assigned. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In this case, the Board finds that the preponderance of the evidence is against the veteran’s claim. ORDER An increased rating for chronic low back strain is denied. D. C. SPICKLER 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.