BVA9507258 DOCKET NO. 93-11 408 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for residuals of a lumbar laminectomy, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Nancy R. Kegerreis, Associate Counsel INTRODUCTION The veteran had honorable active military service from June 1971 to April 10, 1989, and dishonorable service from April 11, 1989, to December 3, 1990. This matter comes before the Board of Veterans' Appeals (Board) from an August 1991 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied an increased evaluation for residuals of a lumbar laminectomy. During the course of the appeal the veteran has raised the issue of entitlement to secondary service connection for distal radius fractures of both wrists, which has not been adjudicated. This claim is referred to the regional office for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that, since his two lumbar laminectomies, he has had constant low back pain, which is intensified by prolonged sitting, standing, coughing, and sneezing, and that sometimes the pain is so sharp that it makes his whole body jerk. He alleges that the pain occasionally travels to his buttocks, his rectum, his testicles, and down the back of his right leg, reaching as far as his ankles. He states that he has to wear a TENS unit and take Motrin to control the pain. 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 residuals of a lumbar laminectomy. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. Residuals of lumbar laminectomy currently are manifested by subjective complaints of pain and slight limitation of motion, but no significant objective evidence of functional impairment. CONCLUSION OF LAW The schedular criteria for a disability rating greater than 10 percent for residuals of lumbar laminectomy 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, 4.71a , Diagnostic Codes (DC) 5292 and 5293 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim for an increased evaluation is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that he has presented a claim which is plausible. The Board also is satisfied that all relevant and available facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). I. Preliminary Discussion In December 1990, the veteran filed a claim for service connection for back injuries occurring in March 1989 and September 1989. In an Administrative Decision dated in May 1991, the RO concluded that the veteran's obligated period of service from June 10, 1971 through April 10, 1989 was considered under honorable conditions. On the other hand, the Bad Conduct Discharge received in December 1990 constituted a bar to VA benefits. Therefore, the veteran was not entitled to health care or related benefits for any disability or disabilities incurred or aggravated during his period of service from April 11, 1989, through December 3, 1990. Subsequently, the RO determined that since his back disorder initially was treated during his first period of service and was established as chronic during that period, reasonable doubt could be resolved in favor of the veteran. In August 1991, the RO granted service connection for residuals of lumbar laminectomy, at an evaluation of 10 percent effective from December 1990, and the veteran appealed. A VA disability evaluation examination in June 1991 noted a reported history of spontaneous onset of low back pain upon sitting down in October 1988. The veteran was treated with muscle relaxants with a slight improvement. In February 1989, he had an onset of severe low back pain while running. A computed tomography (CT) scan was done, and he was told he had a herniated disc at the level of L5 and S1. In May 1989, he had a diskectomy and in April 1990 he had a laminectomy. Following the second surgery, his back pain persisted and his leg pain disappeared for a period of about one month, but then recurred. He then complained of constant low back pain, intensified by prolonged sitting and standing, coughing and sneezing. He had no difficulty in walking. He stated that the pain occasionally radiated down the posterior aspect of his right leg to his foot and that he experienced occasional numbness in his right leg. On observation, the examiner noted that the veteran walked with a normal gait free of any limp. An examination of his back in the erect position revealed a well-healed, non-tender midline scar extending from L3 to S2. There was no spinous tenderness, paravertebral spasm, or pelvic tilt. He was able to flex the lumbar spine to 90 degrees, but extension was limited to 15 degrees. Lateral flexion was achieved to 40 degrees bilaterally and lateral rotation to 55 degrees, bilaterally. He was able to toe and heel walk equally. In the supine position, straight leg raising on the right to 80 degrees resulted in a complaint of discomfort in his low back and hip. Straight leg raising on the left to 90 degrees was negative. Lasegue's sign was negative. His ankle and knee reflexes were rated at one plus each. No areas of hypesthesias were identified in the lower extremities. An x-ray taken in conjunction with this examination showed that the vertebral bodies were normal in height and alignment. Postoperative changes in the lower lumbar spine were noted. In November 1991, the veteran was admitted to a VA nursing home for evaluation and rehabilitation relative to bilateral fractures of the wrists. While there, he continued to complain of pain in his lower back. Physical examination revealed a surgical scar present in the L4-5 area. The veteran was wearing a long cast on the right arm and a short cast on the left arm. During the course of this admission, the veteran participated in both occupational and kinesiotherapy. For pain control for his back, he was issued a TENS unit, together with Percocet, which was later changed to Motrin. Prior to discharge, the veteran was evaluated by professionals in both neurosurgery and orthopedics. A lumbar myelogram and computerized axial tomography scan of the lumbosacral area revealed only what appeared to be scarring defects at the L5-S1 area of previous surgery, with no evidence of further herniation of his nucleus pulposus. While hospitalized, the veteran attended vocational rehabilitation evaluation. Tests indicated that he was able to function at a college level without difficulty. He was discharged in good condition, with his only medication being Motrin. He was considered employable and able to function in a job situation without difficulty. In April 1992, the veteran testified at a hearing before the RO that he had had a myelogram done in February because a neurosurgeon had found two abnormal lumps in his back. He stated that he had a constant pain in his back which varied in kind and intensity, depending upon whether he was standing or sitting, and that the pain traveled to his lower buttocks, to the rectum area, to the testicles, and down the back of his leg, all the way down to his ankles. To control the pain, he had to wear a TENS unit, which relieved the pain in his back, but not in his legs. He was able to stand only between five and ten minutes. He reported that he even had pain lying down, thus being forced to lie in the fetal position. If he stepped off a curb, even with a difference in levels of just a quarter of an inch, he would get a sharp pain in his back. In fact, every once in a while the pain would become so intense that it would make his whole body jerk. Although he previously had had spasms, he reported that these had generally decreased since the use of the TENS unit. An outpatient report in June 1992 showed the veteran complaining of pain radiating down the back of both legs and into the rectum and testicles. He denied any incontinence of bowel or bladder. Physical examination showed muscle strength of 5/5, symmetrical deep tendon reflexes, and intact sensation in both lower extremities. A myelogram and CT scan were unremarkable, except for less filling on the left L5-S1 nerve root. It was noted on clinic discharge that there was no significant disc bulge and that no surgery was necessary. II. Discussion Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. See 38 U.S.C.A. § 1155 (West 1991). Each disability must be evaluated in light of the veteran's medical and employment history, and from the point of view of the veteran's working or seeking work. See 38 C.F.R. §§ 4.1, 4.2 (1994); Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991). The Board notes initially that the 10 percent evaluation assigned by the RO in August 1991 was based principally upon complaints of pain during the June 1991 physical examination. However, with the exception of some limitation of motion on extension and straight leg raising to 80 degrees on the right with a complaint of discomfort, no evidence of functional impairment was noted. Subsequent examination has elicited similar findings. The veteran has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5292, pertaining to limitation of motion of the lumbar spine. Under this code, a severe limitation of motion warrants a 40 percent evaluation. If the limitation of motion is moderate, a 20 percent rating is assigned, and if slight, a 10 percent rating is appropriate. Based on the evidence of record, the Board finds that the veteran's degree of impairment under Diagnostic Code 5292 does not comport with an evaluation of more than 10 percent. As noted above, the recent medical evidence establishes that the manifestations of the veteran's disability consist primarily of subjective complaints of pain and no more than slight limitation of motion. Additionally, the Board would point out that following discharge in April 1992 from a VA nursing home where he underwent extensive rehabilitation for back and wrist disorders, the veteran was considered employable and able to function in a job situation without difficulty. In his April 1992 decision, the hearing officer indicated that the most appropriate Diagnostic Code for evaluating the veteran's disability is DC 5293, pertaining to intervertebral disc syndrome. Under that code, a pronounced disability, for a 60 percent rating, requires 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, and little intermittent relief. A 40 percent evaluation may be assigned if impairment is severe, with recurring attacks, with intermittent relief. If the impairment is moderate, with recurring attacks, a 20 percent evaluation is warranted. A mild disability is assigned a 10 percent evaluation. However, even if rated under this diagnostic code, given the lack of significant objective evidence of functional impairment, the veteran's disability cannot be characterized as more than "mild," thus warranting a 10 percent evaluation. The provisions of 38 C.F.R. § 4.40 relative to functional loss have been considered. However, that regulation requires that the pain be supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. During the veteran's recent examinations, the veteran has complained of pain on motion and has exhibited slight limitation of the lumbar spine on extension. However, there has been no evidence of disuse, either through atrophy or any other sign, and no muscle weakness noted. In fact, the report of June 1992 outpatient examination noted the veteran's muscle strength to be 5/5 bilaterally. Moreover, no neurological abnormalities, including muscle spasm and absent ankle jerk, have been noted. The Board fully appreciates the veteran's subjective complaints of pain in this case. As provided in 38 C.F.R. § 4.59, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Since a 10 percent evaluation is the minimum compensable rating under either Diagnostic Code which may be applicable to the veteran, the Board concludes that the veteran's current evaluation appropriately recognizes painful motion. However, in the absence of more significant objective findings to support the veteran's claim, the Board finds that an evaluation greater than 10 percent is not warranted. The Board also has considered whether an increased rating on an extra-schedular basis is warranted for the veteran's disability. It finds, however, that the residuals of the veteran's lumbar laminectomy do not present such an exceptional or unusual picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b) (1994). Accordingly, the Board finds no basis for assigning an evaluation greater than 10 percent on an extra-schedular increased basis. ORDER An increased evaluation for residuals of a lumbar laminectomy is denied. JACQUELINE E. MONROE 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.