Citation Nr: 0004773 Decision Date: 02/24/00 Archive Date: 02/28/00 DOCKET NO. 98-11 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased rating for lumbosacral strain, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Mulligan, Associate Counsel INTRODUCTION The veteran served on active duty from September 1987 to July 1991. This matter arises from a March 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the veteran's claim for an evaluation in excess of 10 percent for his chronic lumbosacral strain. The Board of Veterans' Appeals (BVA or Board) REMANDED this case to the RO for further development in January 1999, and the case has been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's lumbosacral strain is not productive of muscle spasm on extreme forward bending, unilateral loss of lateral spine motion in standing position, moderate limitation of motion of the lumbar spine or characterized as moderate intervertebral disc syndrome. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40-4.46, 4.59, 4.71a, Diagnostic Codes 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION A veteran who submits a claim for benefits under laws administered by the VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991). An allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating. See Caffrey v. Brown, 6 Vet.App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for an increased evaluation is well grounded. Once a veteran has presented a well-grounded claim, the VA has a duty to assist him in developing facts that are pertinent to the claim. See 38 U.S.C.A. § 5107(a) (West 1991). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for an equitable resolution of the issues on appeal has been obtained. Therefore, no further assistance to the veteran with the development of the evidence is required. Disability ratings are determined by evaluating the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Ratings Disabilities. See 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994). Where there is a question as to which of two higher evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. See 38 C.F.R. § 4.7 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. § 4.40 (1999). Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weightbearing are relevant considerations for determination of joint disabilities. See 38 C.F.R. § 4.45 (1999). The record shows that a June 1992 rating decision granted service connection for chronic low back strain, and assigned a noncompensable evaluation. A rating decision dated in January 1993 increased the evaluation for the veteran's back disability to 10 percent. That evaluation has remained in effect since then. The veteran's disability has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5295 (1999). Under this Diagnostic Code, slight subjective symptoms are rated as noncompensable; characteristic pain on motion is rated at 10 percent; muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position is rated at 20 percent; and, if the disorder is severe, with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion it is rated at 40 percent. Other applicable Diagnostic Codes include 5292 and 5293. Under Diagnostic Code 5292, slight limitation of motion of the lumbar spine is rated at 10 percent, moderate limitation of motion of the lumbar spine is rated at 20 percent, and severe limitation of motion of the lumbar spine is rated at 40 percent. Under Diagnostic Code 5293, a 10 percent evaluation is assigned for mild intervertebral disc syndrome; a 20 percent evaluation for moderate intervertebral disc syndrome with recurring attacks; a 40 percent evaluation when the intervertebral disc syndrome is severe with recurring attacks, with intermittent relief; and a 60 percent evaluation is warranted when the intervertebral disc syndrome is pronounced, 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, little intermittent relief. When a Diagnostic Code provides for compensation based solely upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1999) must also be considered. A separate rating need not be made for pain but the impact of pain must be considered in making a rating decision. See VAOPGCPREC 9- 98, Fed. Reg. 63 (1998); Spurgeon v. Brown, 10 Vet.App. 194, 196 (1997). The examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain on use or due to flare-ups. DeLuca v. Brown, 8 Vet.App. 202, 206 (1995). VA out patient treatment records show that the veteran was seen for complaints of back pain. A record dated in June 1997 records that the veteran reported that he had chronic low back pain since service and that he was very physically active, jogs and played several sports. A record dated in December 1997 shows the veteran reported that he had missed a couple of days from work because of his back pain. Examination disclosed that the back was tender to palpation along the entire lumbar spine vertebrae. The lower extremities had normal strength and the veteran walked without difficulty with no radiation of pain in to the lower extremities. A VA examination performed in March 1998 indicated that the veteran complained of intermittent pain in the lower back which occasionally radiated to the right midthigh. He reported some numbness and tingling in the right posterior thigh, but denied any weakness in the lower extremities. Physical examination showed the veteran moved about the examining room without demonstrable difficulty. He was able to climb on and off the examining table without apparent pain. The lower back had no list, spasm or tenderness. The veteran complained of back pain on attempted flexion beyond 45 degrees, extension beyond 15 degrees, or lateral bending to either side beyond 15 degrees. No neurological abnormalities were noted. The diagnosis following the examination was chronic low back strain, and the examiner offered an opinion that there was no objective evidence on physical examination, x-ray or in the history to warrant altering the disability rating. The veteran was treated at a VA medical center in March 1999 for complaints of chronic low back pain, radiating down the right leg following his attempt to move a couch. No neurological symptoms were noted. The examining physician noted tenderness over the right S1 joint and diagnosed acute exacerbation of chronic low back pain. The veteran was afforded a VA examination in May 1999. The veteran presented with complaints of fairly constant pain in the lower back that is aggravated by prolonged bending, pushing, and lifting. The pain occasionally radiates to the right calf and is associated with some numbness and weakness in the right leg. The veteran denied bowel and bladder incontinence. The examining physician noted that the veteran was able to move about the examining room without demonstrable difficulty, and was able to climb on and off the examining table without apparent pain. Examination of the lower back revealed the pelvis to be level, and no list, scoliosis, spasm or tenderness was observed. The veteran complained of pain on attempted flexion beyond 45 degrees, extension beyond 15 degrees, and left lateral bending beyond 15 degrees, but denied pain on right lateral bending. Neurological examination showed heel and toe gait as normal. Straight leg raise was negative. Deep tendon reflexes were 2+ overall. X-rays of the lumbar spine taken in May 1994 were read as normal. The examining physician diagnosed chronic ligamentous strain to the lumbar spine and noted that the veteran's symptoms did not appear to be supported by objective x-ray and physical findings. The veteran had some painful motion and pain with use, without evidence of incoordination or excess fatigability with use. The examining physician wrote that, based on the examination, it was impossible to state whether the veteran would have additional limits on functional abilities during flare-ups, and noted the veteran's report of needing a day's rest between every working day to function. Based on these findings, the Board concludes that the evidence does not support and evaluation in excess of 10 percent for lumbar strain. A review of the medical evidence fails to reveal muscle spasm on extreme forward bending or unilateral loss of lateral spine motion in standing position, and reflects that the veteran's back disability more nearly approximates the criteria for a 10 percent evaluation under Diagnostic Code 5295, rather than a 20 percent evaluation for that code. Further, the evidence reflects that the veteran's back disability is not productive of moderate limitation of motion, nor is the disability characterized as moderate intervertebral disc syndrome so as to warrant a higher evaluation under Diagnostic Codes 5292 or 5293. In so finding, the Board has taken into consideration the provisions of 38 C.F.R. §§ 4.7, 4.10. 4.40 (1999), as well as the objective findings of pain, tenderness, and limited motion. While the veteran has reported pain on motion, and during the second examination the examiner indicated that there was some painful motion, on both examinations it was noted that the veteran's symptoms were not objectively supported on examination. In any event, the current 10 percent evaluation under Diagnostic Code 5295 is assigned based on characteristic pain on motion. Therefore, the record does not show the increased severity necessary for the next higher evaluation and the veteran's claim must be denied. The potential application of various provisions of Title 38 of the Code of Federal Regulations (1999) have been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1)(1999). In this regard, the Board finds that there has been no showing by the veteran that his injury has resulted in marked interference with employment or necessitated frequent periods of hospitalization. Although he asserts that he is unable to work two or more days in a row, the Board does not believe that this would constitute marked interference with employment. The Board would note that while the veteran reported at the time of treatment in December 1997 that he had missed "a couple of days of work' because of his back, he also reported in June 1997 that he was very physically active, jogged and played several sports. Under these circumstances, the Board finds that the veteran has not demonstrated marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet.App. 337 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). ORDER An evaluation in excess of 10 percent for lumbosacral strain is denied. RAYMOND F. FERNER Acting Member, Board of Veterans' Appeals