Citation Nr: 0001793 Decision Date: 01/21/00 Archive Date: 01/28/00 DOCKET NO. 98-08 171A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased evaluation for residuals of lumbar spine surgeries, currently rated 20 percent disabling. ATTORNEY FOR THE BOARD J. L. Tiedeman, Associate Counsel INTRODUCTION The appellant served on active duty from July 1979 to August 1994. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The RO has obtained all pertinent evidence available for an informed decision to be entered in this case. 2. The appellant's low back disability is currently manifested by subjective complaints of chronic low back pain and muscle spasm; use of pain medication; some tenderness to palpation in the lumbosacral spine; normal muscle strength with no atrophy or weakness; a slight to moderate range of lumbar spine motion; and pain on motion. 3. The level of disability produced by the appellant's low back disability as objectively confirmed is consistent with moderate lumbosacral strain or moderate intervertebral disc syndrome, but not severe lumbosacral strain, severe intervertebral disc syndrome, severe limitation of motion, or unfavorable lumbar spine ankylosis. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for residuals of lumbar spine surgeries are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5289, 5292, 5293, 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the appellant's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the appellant has presented a claim which is not implausible when the contentions and the evidence of record are viewed in the light most favorable to such claim. Generally, an allegation that a service- connected disability has increased in severity is sufficient to establish well groundedness. Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992). Likewise, the Board is satisfied that all relevant facts have been properly and sufficiently developed, such that no further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The evidentiary assertions of the veteran are presumed credible for making this determination. In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The veteran prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. The Board notes that disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part which becomes disabled on use must be regarded as seriously disabled. However, a little-used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations. The appellant's low back disability has been described as lumbar spine pain with occasional residual radiculopathy; the RO has evaluated this disability under the provisions of Diagnostic Code 5293, for intervertebral disc syndrome. A 20 percent evaluation is currently assigned. A VA General Counsel's opinion, VAOPGCPREC 36-97 (December 12, 1997) provided, in part, that Diagnostic Code 5293 contemplates limitation of motion, and that the provisions of 38 C.F.R. §§ 4.40, 4.45, described supra, are applicable to ratings under Code 5293. Under the rating criteria, a 20 percent evaluation is warranted for moderate limitation of motion of the lumbar spine and a 40 percent evaluation is warranted for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292. Intervertebral disc syndrome contemplates symptoms involving persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc. A 20 percent evaluation is warranted for moderate intervertebral disc syndrome with recurring attacks; a 40 percent evaluation is warranted for severe intervertebral disc syndrome with recurring attacks with intermittent relief; and a 60 percent rating is warranted when the syndrome is pronounced with little intermittent relief 38 C.F.R. § 4.71a, Diagnostic Code 5293. For lumbosacral strain, a 20 percent evaluation is warranted for muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in a standing position and a 40 percent evaluation is warranted for a severe lumbosacral strain with listing of the whole spine, marked limitation of forward bending in a standing position, positive Goldthwait's sign, marked limitation of flexion in a standing position, loss of lateral motion with osteoarthritic changes or narrowing or irregularity of a joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295. A 40 percent rating is warranted when there is favorable ankylosis of the lumbar spine and a 50 percent rating is warranted when there is unfavorable ankylosis of the lumbar spine under Diagnostic Code 5289. In the evaluation of service-connected disabilities, the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. Where, as in this case, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although 38 C.F.R. § 4.2 requires that the whole recorded history be reviewed to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The most current evidence of the present level of disability includes an August 1997 VA examination. Initially, however, service medical records show that the appellant began complaining of low back pain in December 1980. He injured his back lifting weights in February 1987, and later sustained another back injury in January 1991, for which the assessment was possible injury to the L4-L5 disc. A magnetic resonance imaging (MRI) in April 1991 revealed abnormal L4-L5 and L5-S1 discs with degenerative disc disease at both levels. A diskectomy at L5-S1 with a semi laminectomy was performed in October 1991. Herniation was subsequently noted at L4-L5 in February 1992, and a diskectomy/laminectomy was performed at L4-L5 on the right in November 1992. The service medical records show that after both back surgeries muscle strength returned to normal and neurological findings were normal. A May 1993 MRI revealed no recurrent herniated nucleus pulposus at L4-L5 and only a small residual at L5-S1. Pain and stiffness were reported in the lower back muscles on sit-ups only in June 1993, and were assessed as incisional muscle weakness. A February 1994 medical evaluation board (MEB) report indicated that the appellant complained of persistent, severe low back pain with radiation to the right leg. Findings from a January 1994 examination conducted for the MEB revealed some decrease to pinprick perception in the right L5 distribution, decreased right ankle jerk, no evidence of weakness in the lower extremities on motor examination, no evidence of point tenderness with limitation of ranges of motion in flexion, extension, and lateral rotation, no increase in pain to midline compression of the spine, and negative straight leg raising, as well as cross straight leg raising. The appellant reported difficulty in lifting more than 50 to 75 pounds and described severe low back pain with occasional right leg and hip pain that was exacerbated by prolonged standing and sitting in increased activities. The diagnosis was lumbar spine pain with occasional radiculopathy into the right hip and buttock, and severe limitation of motion in the lumbar spine. VA medical reports in 1996 indicate complaints of lumbar pain which radiated to the lateral aspect of the right leg and to the right foot. No weakness was noted, and the appellant was observed to have an antalgic gait, with normal symmetrical strength and reflex. Radiculopathy was noted at L5-S1. A December 1996 VA progress record showed back pain to palpation in the lumbosacral spine. Injections were given for his complaints of pain. More recently, an August 1997 VA examination showed that the appellant walked well without a limp, cane or appliance. He was able to get in and out of a chair with ease, and had no postural abnormalities or fixed deformities. The musculature of his back was described as good. Range of motion was forward flexion of 62 degrees, backward extension of 21 degrees, left lateral flexion of 9 degrees and right lateral flexion of 20 degrees. Objective pain on motion was noted. An X-ray showed no bony abnormalities except for mild degenerative change at L5 and S1. The prior evaluation was confirmed and continued. Other factors to consider are the degree of limitation of motion and the pain caused by the appellant's low back disorder. With increasing levels of pain, concomitantly increasing degrees of muscle spasm, weakness, atrophy, inability to function, and the like, are expected. 38 C.F.R. §§ 4.40, 4.45, 4.59. In this case, chronic pain was reported and tenderness and spasms have been observed; however, no muscle atrophy or weakness has been demonstrated. The appellant has consistently complained of chronic pain, and recent objective medical evidence did show findings of tenderness to palpation and pain on motion was observed. Only slight to moderate limitation of motion was observed. The appellant was able to bend forward, or flex, to 62 degrees. Forward flexion to 90 degrees, or full flexion, would mean that one could bend forward such that the back was parallel to the floor. The appellant is able to bend approximately two-thirds of this distance. There is evidence of residual radiculopathy, but no radiographic evidence of either disc herniation or foraminal stenosis. Consideration has been given to assigning separate ratings under the various diagnostic codes. It is concluded that such a result would violate the provisions of 38 C.F.R. § 4.14, which prohibit pyramiding. It is the Board's reading of these provisions that the codes in question all contemplate limitations of the law back due to pain. There is no "entirely different function" affected by the neurologic versus the orthopedic findings that would warrant a separate evaluation. See 38 C.F.R. § 4.55; Esteban v. Brown, 6 Vet. App. 259 (1994). The pain and functional limitations caused by the low back disorder are contemplated in the rating for moderate impairment that has been assigned. Thus, 38 C.F.R. § 4.40, et seq. do not provide a basis for the assigning of a separate or increased disability rating. Examining the evidence summarized above, and giving due consideration to the provisions regarding painful motion under 38 C.F.R. § 4.59 (see also DeLuca v. Brown, 8 Vet. App. 202 (1995)), the most current medical evidence shows no objective evidence that severe low back impairment is demonstrated. There have been some back spasms noted and pain medication administered, but no medical findings of atrophy or loss or muscle strength or of symptoms compatible with sciatic neuropathy have been made. As such, findings commensurate with pronounced or severe low back disc impairment under Diagnostic Code 5293 are not shown. Furthermore, no ankylosis of the lumbar spine has been demonstrated and therefore Diagnostic Code 5289 is not for application. While the medical evidence does support a finding of slight to moderate limitation of motion under Diagnostic Code 5292, this would not result in a higher rating since the rating for moderate impairment under that Code is 20 percent. The most current clinical evidence demonstrates no more than moderate, albeit painful, limitation of motion of the lumbar spine, with objective credible evidence of some associated muscle spasms, but not of sciatica, absent knee jerks, loss of lateral motion with osteo-arthritic changes, a positive Goldthwait's sign, listing of the whole spine to the opposite side, or any additional neurological symptomatology in order to warrant an evaluation in excess of 20 percent under applicable diagnostic criteria. 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293, 5295. As such, the Board does not find that the objective clinical evidence warrants an evaluation in excess of 20 percent due to functional impairment manifested by weakness or other related symptomatology of the appellant's low back, to include decreased endurance, excess fatigability, and incoordination. There is no competent credible evidence at this time suggesting that the appellant's back disability produces more than moderate functional impairment so as to warrant a schedular evaluation in excess of 20 percent under 38 C.F.R. § 4.40 and § 4.45, or the applicable diagnostic codes. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 91, 93 (1992); Miller v. Derwinski, 2 Vet. App. 578, 580 (1992). The appellant's current low back symptomatology more nearly approximates the criteria indicative of a 20 percent schedular evaluation under Diagnostic Codes 5292 or 5295. 38 C.F.R. § 4.7. There is no credible, competent evidence indicating a greater degree of functional loss attributable to the back disability than that commensurate with the assigned 20 percent rating. Therefore, the regular schedular standards, with the 20 percent evaluation currently assigned, adequately compensate the appellant for any adverse industrial impact caused by his back disability. An extraschedular evaluation is not warranted, since the evidence does not show that the low back disability presents an unusual or exceptional disability picture such that the rating schedule is inadequate for a proper evaluation. 38 C.F.R. § 3.321(b)(1). Significantly, the appellant's low back disability has not required frequent periods of hospitalization, although he received pain injections in 1996, and the evidence does not show marked interference with employment. Because the preponderance of the evidence is against the allowance of this issue, the benefit of the doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b). ORDER Entitlement to an increased rating in excess of 20 percent for the appellant's low back disability is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals