BVA9500386 DOCKET NO. 92-22 702 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased rating for a disability of the lumbar spine with degenerative disease above fusion, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from June 1946 to July 1947. This matter came before the Board of Veterans' Appeals (Board) on appeal from a June 1992, rating decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). The notice of disagreement was received in June 1992. The statement of the case was sent to the veteran in July 1992. The substantive appeal was received in August 1992. In an October 1993 decision, the Board remanded this case for further development. The case is now ready for appellate review. In a March 1994 rating decision, in the reasons and bases, the RO noted that service connection was not established for diabetic peripheral polyneuropathy and degenerative disc disease of the cervical spine. However, the RO did not list those disorders as being specifically denied service connection in that decision nor did the RO send the veteran notification of a denial and of his procedural and appellate rights. Therefore, the Board refers these two issues to the RO to send the veteran notice of the decision and procedural and appellate rights if the RO in fact did deny service connection for those two disorders or if service connection for diabetic peripheral polyneuropathy and degenerative disc disease of the cervical spine were not denied in the March 1994 rating decision, the Board refers these two issues to the RO for appropriate development. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative essentially contend that his service-connected back disability is more severe than is represented by the current 20 percent rating. He asserts that he has constant back pain and bilateral leg pain and numbness. The veteran contends that he cannot walk very far and has difficulty descending stairs. 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 evidence supports a disability rating of 40 percent for the veteran's service-connected disability of the lumbar spine with degenerative disease above fusion FINDINGS OF FACT 1. The veteran has a status post laminectomy and fusion at the L4-L5 level and the manifestations of his lumbar spine disability include limitation of motion of the lumbar spine with increased limitation due to pain; a well-healed surgical incision; mild tenderness to palpitation over the low lumbar levels; and negative straight leg raising bilaterally with low back pain and stretching of the posterior leg muscles at 50 degrees on the right and 35 degrees on the left. 2. X-ray evidence reveals a fusion of L4 to S1, however, the fusion is not shown to be at an unfavorable angle. CONCLUSION OF LAW The schedular criteria for a disability evaluation of 40 percent, but not higher for a disability of the lumbar spine with degenerative disease above fusion, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, Part 4, Diagnostic Codes 5289 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, we find that he has presented a plausible claim. We are also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107 (West 1991). The veteran was initially granted service connection for residuals of a fractured vertebrae in an April 1950 rating decision, and was assigned a 10 percent rating. The grant was based on the veteran's service medical records which documented that the veteran incurred a simple compressed fracture of the first lumbar vertebrae in an automobile accident. Thereafter, the veteran was afforded a VA examination in 1955. At that time, the veteran complained of pain in the low back. Physical examination revealed basically normal findings, but did note vague discomfort in the low back and some discomfort on deep palpitation of the lumbo-sacral region. There are no further treatment records until April 1992 when the veteran was treated by the VA. At that time, he reported chronic low back pain with radiating pain down his leg. Physical examination revealed diffuse tenderness over the lower lumbar spine, motor strength of 5/5, deep tendon reflexes of 2/2 in the knees and 1/24 in the ankles, and negative straight leg raising. Range of motion testing revealed flexion of 45 degrees and poor extension with pain. X-rays revealed solid bilateral lateral fusion masses of L5-sacrum laminectomy at L4-L5. There was disc space narrowing at L3-L4 and L5-S1 levels without change. The impression was chronic low back pain with fusion, status post L5 fracture probably with some spinal stenosis and degenerative disease. In a June 1992 rating decision, the RO granted entitlement to an increased rating of 20 percent for limitation of motion of the lumbar spine with degenerative disease above fusion. The increased rating was based upon the April 1992 VA record. Currently, the veteran appeals the June 1992 rating decision and contends that his back disability is more disabling than is represented by the 20 percent rating. The evaluation assigned for a service-connected disability is established by comparing the manifestations indicated in the recent medical findings with the criteria in the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1993). Several provisions of the rating schedule must be taken into account in rating the veteran's low back disability. Although the same symptoms may not be evaluated under various diagnoses, it is necessary to determine which rating criteria most closely approximate the current manifestations of disability. In this case, the rating criteria that might be applicable include those for lumbosacral strain, intervertebral disc syndrome, limitation of motion of the lumbar spine, and those for ankylosis of the spine. Under the criteria applicable to lumbosacral strain, the rating schedule provides a 40 percent rating for severe disability with listing of whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in a 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. A 20 percent rating is provided for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. 38 C.F.R. Part 4, Diagnostic Code 5295 (1993). Alternatively, under the criteria applicable to intervertebral disc syndrome, the rating schedule provides a 60 percent rating for 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 and little intermittent relief; a 40 percent rating for severe intervertebral disc syndrome with recurring attacks with intermittent relief; and a 20 percent rating for moderate intervertebral disc syndrome with recurring attacks. 38 C.F.R. Part 4, Diagnostic Code 5293 (1993). Alternatively, the disability might be rated under the criteria for limitation of motion of the lumbar spine. Under 38 C.F.R. Part 4, Diagnostic Code 5292 (1993), the rating schedule provides a 40 percent rating for severe limitation of motion of the lumbar spine; and a 20 percent rating for moderate limitation of motion of the lumbar spine. Under Diagnostic Code 5289, favorable ankylosis of the lumbar spine is rated as 40 percent disabling and unfavorable ankylosis of the lumbar spine is rated as 50 percent disabling. In addition, the United States Court of Veterans Appeals (Court) in Lewis v. Derwinski, 3 Vet.App. 259, 260 (1992), indicated that when the appellant has undergone a spinal fusion (ankylosis) and has pain and limitation of motion of the lumbar spine caused by the ankylosis, both the provisions of ankylosis and limitation of motion should be considered. In applying the rating criteria, it is also necessary to note that when 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 (1993). In conjunction with his appeal, the veteran underwent a VA orthopedic and neurological examination and VA medical records were obtained. It is noted that the veteran's primary complaints were of low back pain and numbness in the legs. In September 1992, the veteran was evaluated at a VA hospital. A spinal magnetic resonance imaging spectroscopy (MRI) revealed no evidence of metastatic disease or cord compression. A neurology consult including electromyogram and nerve conduction studies was performed. It was felt that the veteran's lower extremity difficulties were most likely due to a diabetic peripheral polyneuropathy. An orthopedic consult found that the veteran's back pain was consistent with the veteran's degenerative joint disease and degenerative disc disease. In subsequent November 1992 and April 1993 records, it was noted that the veteran suffered from diabetic neuropathy. In November 1993, the veteran was afforded a VA neurological examination including an MRI. The MRI revealed multilevel disc disease C3-C7 with mild spinal stenosis; disc bulges at L1-2 and L2-3 with mild congenital stenosis; and degenerative changes at L5-S1. A somatosensory evoked potential was performed which was remarkable for mild symmetrically delayed central tibial nerve conductions. An electromyogram nerve conduction study was performed which showed evidence of a cervical polyradiculopathy that was chronic and active, as well as a sensory motor polyneuropathy. The veteran also was afforded a VA orthopedic examination. Physical examination of the low back revealed a well-healed surgical incision; mild tenderness to palpitation over the low lumbar levels with no stepoff deformity or palpable instability; no greater trochanter, SI joint or sciatic notch tenderness on either side; no paraspinal muscle tenderness or spasm on either side; negative straight leg raising bilaterally with low back pain and stretching of the posterior leg muscles at 50 degrees on the right and 35 degrees on the left; intact light touch sensation; 5/5 motor strength; 2/3 deep tendon reflexes; and no evidence of clonus. Range of motion testing of the lumbar spine revealed 40 degrees of flexion at which point pain prohibited further motion, 10 degrees of extension, and 15 degrees of right and left lateral bending and right and left rotation. Extremes of motion caused an increase in pain. The veteran could toe and heel walk without difficulty. X-rays of the lumbar spine revealed L3-4 degenerative disc disease and facet degeneration, status post L4 to sacrum posterolateral fusion. The examiner noted that it appeared that the veteran had undergone a fusion of L4 to S1 based on the radiographs. The Board initially observes that the veteran has symptomatology pertaining to the cervical spine as well as diabetic peripheral polyneuropathy and has been treated for these problems by the VA for the past several years. As previously noted, these disabilities are not service-connected and have been referred to the RO for adjudication. Therefore, the symptomatology noted in conjunction with those disabilities is not being considered with the symptomatology that has been attributed to the veteran's lumbar spine disability. When all the medical evidence and the veteran's statements are taken into account, it reveals that the veteran has a status post laminectomy and fusion at the L4-S1 level and the manifestations of his lumbar spine disability include limitation of motion of the lumbar spine with increased limitation due to pain; a well- healed surgical incision; mild tenderness to palpitation over the low lumbar levels; and negative straight leg raising bilaterally with low back pain and stretching of the posterior leg muscles at 50 degrees on the right and 35 degrees on the left. The veteran does not exhibit SI joint or sciatic notch tenderness on either side; greater trochanter; paraspinal muscle tenderness or spasm on either side; clonus; or decreased light touch sensation and/or motor strength. The Board has taken into account the veteran's subjective complaints of pain which were noted by the VA examiner to inhibit his range of motion in that he could not perform extremes of motion due to pain. Under 38 C.F.R. § 4.40 (1993), functional loss or weakness due to pain supported by adequate pathology and evidenced by the visible behavior of the appellant is deemed a serious disability. In light of the veteran's own complaints of pain and the VA examiner's findings regarding decreased limitation due to pain, the Board finds that the veteran's low back pain causes functional loss and, thus, a serious back disability. The Board has taken into account the veteran's complete disability picture and the provisions of 38 C.F.R. § 4.40 (1993), and concludes that the veteran's current manifestations of pain and limitation of motion are caused at least in part by his spinal fusion. Therefore, the veteran's lumbar spine disability is consistent with a 40 percent rating under Diagnostic Code 5289. Since the medical records indicate that the spinal fusion is solid and do not indicate that the fusion is at an unfavorable angle, a 50 percent rating is not warranted under that code. The Board has considered the veteran's back disability under the other aforementioned Diagnostic Codes, however, the Board finds that a rating in excess of 40 percent under any of those codes is not appropriate. Specifically, since a 40 percent rating is the highest rating available under Diagnostic Codes 5292 and 5295, the veteran's back disability does not warrant a higher rating under those two codes. Alternatively, the Board has considered the veteran's back disability under Diagnostic Code 5293. Under that code, in order for a higher evaluation to be warranted, the evidence would have to show 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 and little intermittent relief. However, although the veteran demonstrates characteristic pain, the evidence does not show demonstrable muscle spasms, absent ankle jerk, or other severe symptomatology pertinent to the lumbar spine with little intermittent relief. The Board has also considered an extra-schedular evaluation under the provisions of 38 C.F.R. § 3.321 (1993) but does not find the disability picture so unusual as to render impractical the regular schedular standards. In this regard it is noted that the veteran has not had to have frequent periods of hospitalization for his low back disability. Therefore, the Board finds that the veteran's current symptomatology of his service-connected back disability is appropriately rated under Diagnostic Code 5289. Accordingly, the Board finds that the schedular criteria for a disability evaluation of 40 percent for a disability of the lumbar spine with degenerative disease above fusion, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, Part 4, Diagnostic Code 5289 (1993). ORDER The appeal is granted to the extent indicated subject to the law and regulations governing the payment of monetary awards. EUGENE A. O'NEILL 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.