BVA9505892 DOCKET NO. 93-09 053 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for bilateral hearing loss. 2. Entitlement to an increased disability evaluation for lumbosacral strain with disc space narrowing and muscle spasm, currently evaluated as 20 percent disabling. 3. Entitlement to a compensable disability evaluation for post-operative growth of the left eyelid. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active military duty from November 1973 to June 1979. In a rating decision of August 1979, the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana denied the veteran's claim of entitlement to service connection for high frequency hearing loss. The veteran was notified of this rating decision in the same month. The current appeal arises from a December 1990 rating decision of the RO in Huntington, West Virginia which denied the veteran's petition to reopen his claim of entitlement to service connection for bilateral high frequency hearing loss on the basis that the additional evidence submitted was not new and material. This decision also granted an evaluation of not more than 20 percent for lumbosacral strain with disc space narrowing and muscle spasms and denied a compensable rating for post-operative growth of the left eyelid. In a July 1993 rating decision, the representative raised the issue of clear and unmistakable error in the prior rating decisions. This claim is not inextricably intertwined with the current appeal and is referred to the RO for appropriate action. See, Fugo v. Brown, 4 Vet.App. 40 (1993). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO committed error in not reopening her claim for service connection for bilateral hearing loss. She continues to claim that she incurred bilateral hearing loss during active military service. In particular, she claims that her hearing deteriorated during service and that she has had problems with her hearing since her separation from service. She asserts that she cannot hear conversations and that this inability to hear affects her job performance. Consequently, she maintains that she is entitled to service connection for bilateral hearing loss. In addition, the veteran contends, in essence, that the RO committed error in denying her claim of entitlement to a disability rating higher than 20 percent for lumbosacral strain with disc space narrowing and muscle spasm. She asserts that this service-connected disability is more severely disabling than currently evaluated. Specifically, she claims that she has been under constant medical care and has been taking medication continuously for her back disability since 1986. In addition, she maintains that, as a result of her back disability, she can no longer participate in ordinary physical activities and has a lack of energy, limitation of motion, disc space narrowing, muscle spasms, swelling, and tenderness. She also explained that she was recently provided with a chair back brace. The veteran also contends, in essence, that the RO committed error in denying her claim of entitlement to a compensable disability evaluation for a post-operative growth on the left eyelid. She asserts that this service-connected disability is more severely disabling than currently evaluated. Specifically, she claims that since June 1989 the growth has returned. In addition, she maintains that, although the scar was nontender on the day of the November 1990 VA examination, the scar is sometimes tender. She explains that she must be careful in washing the area around her left eye to prevent irritation. DECISION OF THE BOARD The Board of Veterans' Appeals (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 files. 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 new and material evidence has not been submitted sufficient to reopen the claim of entitlement to service connection for bilateral hearing loss. It is also the decision of the Board that the preponderance of the evidence warrants the grant of no more than 40 percent disability rating for lumbosacral strain with disc space narrowing and muscle spasm. In addition, it is the decision of the Board that the preponderance of the evidence is against the claim of entitlement to a compensable disability evaluation for post-operative growth of the left eyelid. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. In a rating decision of August 1979, the RO denied the veteran's claim of entitlement to service connection for high frequency hearing loss. 3. The evidence submitted since the RO's 1979 decision, when viewed in the context of all of the evidence of record, does not raise a reasonable possibility of changing the outcome. 4. The veteran's low back disability with arthritis and spondylosis is productive of pain on motion, muscle spasms, motion from 10 degrees' extension to 40 degrees' flexion, tenderness, swollen muscles, no sensorimotor changes or atrophy in the lower extremities, no postural abnormalities or fixed deformities, and the ability to squat and rise and to heel and toe stand without complaint, which is productive of not more than severe lumbosacral strain or moderate limitation of motion. 5. The post-operative growth on the veteran's left eyelid is productive of essentially no disfigurement of her face, no lack of nourishment or repeated ulceration, no tenderness or pain on objective demonstration, and no limitation of function of the left eyelid. CONCLUSIONS OF LAW 1. The unappealed decision of the RO in August 1979 denying the veteran's claim of entitlement to service connection for high frequency hearing loss became final. 38 U.S.C.A. § 7105(c) (West 1991). 2. Since the RO's August 1979 decision, new and material evidence has not been received, and the veteran's claim has not been reopened. 38 U.S.C.A. §§ 5107, 5108 (West 1991); 38 C.F.R. §§ 3.156(a), 3.159 (1994). 3. The criteria for a 40 percent disability evaluation, but no higher, for lumbosacral strain with disc space narrowing and muscle spasm are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 3, § 3.321, Part 4, §§ 4.40, 4.71a, Codes 5003, 5010, 5292, 5293, and 5295 (1993). 4. The criteria for a compensable disability evaluation for a post-operative growth on the left eyelid is not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 3, § 3.321, Part 4, §§ 4.40, 4.118, Codes 7800, 7803, 7804, 7805 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Hearing Loss Initially, the Board finds that the veteran's claim is well- grounded and has been appropriately developed by the RO. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.159 (1994). That is, the Board finds that the veteran has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. The Board notes that throughout the present appeal the veteran has pointed out that she has never received a VA audiological examination for her hearing condition. However, as the Board will discuss below, the additional evidence submitted in since the RO's August 1979 decision does not show that the veteran has a present hearing disability and audiograms in 1973, 1974 and 1979 were within normal limits. There has been no showing of a disabling chronic postservice sensorineural hearing loss within one year after service. A VA audiological examination is, therefore, not necessary. The Board concludes that the VA has adequately fulfilled its statutory duty to assist the veteran in the development of his claim. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). In a rating decision of August 1979, the RO denied the veteran's claim of entitlement to service connection for high frequency hearing loss on the basis that this disability was not shown to have been incurred in active military service. At the time of this decision, the RO considered the evidence that was then of record. Specifically, the RO reviewed the veteran's contentions as well as the service medical records. At the time of this earlier decision, the veteran contended that she had incurred bilateral hearing loss during her active military duty. In November 1976, the veteran was given ear plugs when she sought treatment for a "problem [in] both ears." However, general medical examinations conducted in 1976 and the separation examination which was completed in March 1979 demonstrated ears within normal limits. The service medical records, including the separation examination, failed to note any findings of a chronic ear disability, including hearing loss. The veteran was notified of the August 1979 decision in the same month. Because a timely appeal within one year was not made, the decision became final. 38 U.S.C.A. § 7105(c) (West 1991). Nevertheless, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the claim will be reopened, and the former disposition reviewed. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). The United States Court of Veterans Appeals (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Stanton v. Brown, 5 Vet.App. 563, 566 (1993). With regard to petitions to reopen previously and finally disallowed claims, the Board must conduct a two-part analysis. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). First, the Board must determine whether the evidence presented or secured since the prior final disallowance of the claim is "new and material." Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The Court explained in Colvin that "new evidence" is evidence that is not "merely cumulative" of other evidence of record. Id. The Court has also explained that evidence is "material" where it is "relevant to and probative of the issue at hand" and where it is of "sufficient weight or significance that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Cox v. Brown, 5 Vet.App. 95, 98 (1993); and Colvin, 1 Vet.App. at 174. Second, if the Board determines that the evidence is "new and material," it must reopen the claim and evaluate the merits of the claim in view of all the evidence, both new and old. Masors v. Derwinski, 2 Vet.App. 181, 185 (1992). The Court recently reviewed and upheld these standards regarding the issue of finality. Reyes v. Brown, 7 Vet.App. 113 (1994). The Court has also held that VA is required to review all of the evidence submitted by a claimant since the last final denial on the merits of a claim in order to determine whether a claim must be reopened and readjudicated on the merits. Glynn v. Brown, 6 Vet.App. 523, 529 (1994). Therefore, in the present case, the Board must review, in light of the applicable law, regulations, and Court cases regarding finality, all of the additional evidence submitted since the RO's August 1979 decision. In this regard, since the August 1979 decision, the veteran has submitted additional evidence in the form of her statements and medical records. According to the applicable law and regulations, service connection may be granted for disability resulting from chronic disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1994). Since the RO's August 1979 decision, the veteran has not submitted new and material evidence concerning the issue of whether she incurred chronic hearing loss during active service. In the notice of disagreement and the substantive appeal, she asserted that the service medical records show deterioration in her hearing acuity, that she has had problems with her hearing since her separation from service, that she presently cannot hear conversations, and that this inability to hear affects her job performance. These contentions simply reiterate prior contentions of an eye disability beginning during service and do not provide additional information regarding the question of service connection. In other words, these contentions do not raise a reasonable possibility of changing the outcome of the 1954 rating decision. Since the RO's August 1979 decision, the veteran has also submitted copies of numerous post-service outpatient treatment records. Significantly, however, most of these records reflect treatment that the veteran received for disabilities unrelated to a hearing condition. Only a few of the additional medical records submitted relate to the veteran's ears. In September 1981, the veteran sought treatment for complaints of earache in her right ear. The assessment of right otitis media was made. Significantly, however, the examiner did not relate this diagnosis to the veteran's service. In October 1981, the veteran sought treatment for an ear infection. Although the diagnosis of probable mild "PND" was made and a small amount of cerumen, or wax, build-up was observed, none of this symptomatology was related to the veteran's service. In July 1982 and in December 1983, the veteran sought treatment for complaints of nasal congestion and received partial general medical examinations. At those treatment sessions and examinations, no redness was found in the veteran's ears. These additional records simply reflect treatment that the veteran received for disabilities unrelated to her ear condition. The diagnosis of right otitis media and the observance of a small build-up of wax the early 1980's have not been shown to be related in any way to chronic disability relating to the period of the veteran's active duty. Therefore, these additional medical records are not relevant and probative and are not of sufficient weight that there is a reasonable possibility of changing the outcome of the claim for service connection. See, Sklar at 145. Therefore, the additional evidence is not new and material in light of the applicable law, regulations and Court decisions and does not provide the required evidentiary basis to reopen the veteran's claim. II. Low Back The veteran's claim for an increased rating for his service-connected low back disability is well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that the veteran has presented a claim which is plausible. The Board notes that the veteran has requested a neurological examination to evaluate her low back disability. However, as will be explained below, the recent medical evidence does not indicate neurological abnormalities of such severity as would require the need for a specific neurological examination for further evaluation of the veteran's low back disability. The Board is, therefore, satisfied that all relevant 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); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (1993). In a December 1987 decision, the RO in Wichita, Kansas granted service connection for lumbosacral strain with disc space narrowing at the L5-S1 level and rated this disability as noncompensable, effective from September 1987. The RO considered the service medical records, which showed that the veteran had been treated during service for complaints of low back pain, and post-service outpatient treatment records, which demonstrated continued treatment for low back pain as well as for lumbosacral strain, lumbar scoliosis, and disc space narrowing at the L5-S1 level. However, because the veteran failed to report for the scheduled VA examination (the notification to report for the examination was undeliverable), the RO assigned a noncompensable rating for this service-connected disability. Upon receipt of a report of VA examination of the veteran's low back, the RO, in a May 1988 decision, granted the veteran a 10 percent rating for her service-connected low back disability, effective from September 1987. According to the report of this examination, the veteran complained of pain and some tenderness in the lower lumbar area. The examination demonstrated a mild increase in the veteran's lordotic curvature. However, no paravertebral muscle spasms or tenderness was found, and she had full range of motion of her lumbar spine. Neurological examination was normal. The examiner diagnosed symptomatic chronic lumbosacral strain with degenerative disc disease at the L4-L5 level and exogenous obesity aggravating the low back disorder. The examiner noted that the veteran is five feet and six inches tall and weighs 195 pounds. In a December 1990 decision, the RO redefined the veteran's service-connected low back disability as lumbosacral strain with disc space narrowing and muscle spasms and granted a rating no higher than 20 percent for this disability, effective from February 1990. The RO cited the recently submitted outpatient treatment records and the report of the November 1990 VA examination which demonstrated, with respect to the veteran's low back, limitation of motion, pain on motion, mild cervical kyphosis, slight decrease in the lumbar lordosis, some tenderness, mild bilateral mid thoracic spasms perispinally, normal strength and circulation in both of the lower extremities, and a negative neurological examination. Disability evaluations are administered under a Schedule for Rating Disabilities which is found in 38 C.F.R. Part 4 (1993) and is designed to compensate a veteran for the average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. Id. Although the evaluation of a service-connected disability requires a review of the veteran's medical history with regard to that disorder, the primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. The Court has recently held that, where 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 a rating specialist is directed to review the recorded history of a disability in order 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). With these regulations and this Court decision in mind, the Board will address the issue of the evaluation of the present level of disability resulting from the veteran's service-connected lumbosacral strain with disc space narrowing and muscle spasms. Pursuant to Code 5295, a 20 percent disability rating is assigned when the evidence demonstrates lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, and loss of unilateral spine motion in the standing position. Evidence of severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the 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. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, § 4.71a, Code 5295 (1993). In addition, moderate intervertebral disc syndrome with recurring attacks warrants a 20 percent rating. Evidence of severe intervertebral disc syndrome with recurring attacks and intermittent relief is necessary for the assignment of a 40 percent evaluation. Evidence of pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy, characteristic pain, demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc and with little intermittent relief is required for a 60 percent rating. 38 C.F.R. Part 4, § 4.71a, Code 5293 (1993). Furthermore, arthritis of the lumbar spine is rated based on the limitation of motion of the lumbar spine. 38 C.F.R. Part 4, § 4.71a, Codes 5003, 5010 (1993). According to the applicable diagnostic code for limitation of motion of the lumbar spine, moderate limitation of motion of the lumbar spine warrants a 20 percent rating, and severe limitation of motion of the lumbar spine warrants a 40 percent evaluation. 38 C.F.R. Part 4, § 4.71a, Code 5292 (1993). Throughout the appeal, the veteran has contended that, as a result of her back disability, she can no longer participate in ordinary physical activities and has a lack of energy, limitation of motion, disc space narrowing, muscle spasms, swelling, and tenderness. She also explained that she was recently provided with a chair back brace. A review of the medical evidence of record demonstrates that the symptomatology of the veteran's low back disability is productive of no more than severe lumbosacral strain. While the symptomatology of the veteran's low back disability warrants the grant of a 40 percent disability rating, the recent medical evidence does not demonstrate the extent of neurological deficit which is productive of pronounced intervertebral disc syndrome. 38 C.F.R. Part 4, § 4.71a, Codes 5293 and 5295 (1994). VA outpatient treatment records received at the RO pursuant to the present appeal indicated that in July 1986 the veteran sought treatment for low back pain which he asserted he had experienced for the prior two to three months and which he maintained radiated to his right hip, right thigh, and left hip. The veteran also complained of a burning sensation in her right thigh. The examiner noted no weakness and diagnosed low back pain with questionable nerve entrapment. Neurological evaluation showed strength of 3+/4 throughout on the left and 2+/4 on the right lower extremity (hip flexion only). Dorsiflexion of the foot and right toes was strong, and foot inversion/eversion was strong. The veteran complained of pain on straightening the right leg. The examiner found no sciatic notch tenderness. Hamstrings were tight bilaterally. X-rays taken of the veteran's lumbosacral spine in August 1986 showed narrowing of the L4-L5 disc space with minimal degenerative changes suggesting disc disease at this level. The remaining lumbar spine was within normal limits. In February 1988 and in June 1988, the veteran requested a refill of his Motrin prescription for his low back pain. X-rays of the veteran's lumbar spine indicated in March 1989 demonstrated degenerative changes at the L4-L5 and L5-S1 levels. An April 1989 computed tomography scan of the veteran's lumbar spine showed minimal central bulging of the annulus fibrosis at the L3-L4 and L4-L5 levels without evidence of spinal stenosis or lateral recess encroachment. No bone destruction or perivascular adenopathy was seen on soft tissue windows. Outpatient treatment records dated in 1990 indicated that throughout that year, the veteran continued to take medication for her service-connected back disability. According to a February 1990 outpatient treatment report, the veteran had a history of degenerative joint disease at the L4-L5 and L5-S1 levels. She reported that at that time she was taking Motrin for her back pain. The examiner found minimum tenderness in the right L4 region and diagnosed chronic back pain. In March 1990 the veteran sought treatment for, among other conditions, complaints of back pain. The examiner assessed chronic low back pain, prescribed medication, and informed the veteran to return to the clinic for follow-up treatment in five months. In November 1990, when the veteran continued to complain of back ache, the examiner prescribed medications, diet, and activity. At the November 1990 VA examination, the examiner noted that the veteran was moderately obese (she was approximately five feet six inches tall and weighed 182 pounds) and in no apparent distress, had a normal gait, could walk on her heels and toes, and could do a deep knee bend without problems. According to the examination report, forward flexion of the veteran's lumbar spine was 90 degrees, backward extension was 25 degrees, bilateral rotation was 45 degrees, and lateral flexion was 45 degrees bilaterally. The examiner noted that the veteran rose slowly after forward flexion with facial grimacing and that when she rotated to the right she complained of pain. Curvatures of the veteran's back showed slight decrease in the lumbar lordosis. There were mild mid thoracic spasms perispinally bilaterally and tenderness in the left and right perispinal regions in the lumbar area. Straight leg raises were negative bilaterally to 70 degrees. The veteran was found to have normal strength and circulation in both of his lower extremities, and the neurological examination was normal. The examiner diagnosed lumbosacral strain with disc narrowing at the L4-L5 and L5-S1 levels by history. According to a May 1991 outpatient treatment report, Magnetic Resonance Imaging (MRI) confirmed disc bulging at the L3-L4, L4-L5, and L5-S1 levels. In May 1991, the veteran continued to complain of chronic low back symptoms and burning pain radiating into his right buttock with numbness and tingling down his right leg. The examining neurologist gave the veteran Motrin and referred to a neurosurgeon. In January 1992, the veteran sought treatment for increasing pain in her low back which she asserted radiated down her legs since an automobile accident in October 1991. She reported that she had been doing fairly well until this automobile accident. The examiner prescribed medication and asked the veteran to return for follow-up treatment in six months. In February 1992, the veteran returned to the neurologist she had received treatment from in May 1991 for follow-up treatment for chronic lumbar strain. At that time, the veteran pointed to tenderness over the sacroiliac joints. Straight leg raising was negative except for sacroiliac joint pain, reflexes were 2+, and strength was good. The neurologist assessed exacerbations of sacroiliac joint dysfunction. The neurologist suggested a sacroiliac joint belt or lumbar support and informed the veteran that she should return to the clinic in three months. On the day of the February 1992 neurology outpatient treatment session, the diagnosis of chronic lumbar strain with sacroiliac joint dysfunction was made. The veteran was given a lumbar support, either a sacroiliac joint belt or similar device. Subsequently, the veteran was accorded a VA examination in June 1992. X-rays taken of her lumbar spine at that time demonstrated disc space narrowing between L4 and L5, spurs project from the anterior and dorsal borders of L4 which are small to moderate in size, mild scoliosis with convexity to the right, and normal sacroiliac joints and remaining disc spaces. The radiologist reading the films concluded that the veteran had disc degeneration at the L4-L5 level with spondylosis anteriorly and dorsally. At the examination of the veteran's spine, the veteran complained of constant sharp pain in the lumbar area that shoots around from the right to the left and radiates down into both legs by history. Examination of her spine demonstrated no postural abnormalities or fixed deformities and 1+ lumbosacral spasm with march maneuver on the left. Range of motion was 40 degrees of forward flexion, 10 degrees of back extension, 30 degrees of both right and left lateral flexion, and 30 degrees of both right and left lateral rotation. The veteran complained of pain during the range of motion examination. The examiner noted that the veteran is able to squat and to rise without complaint and that she is able to heel and toe stand without complaint. Straight leg raising was negative to 90 degrees times two, her deep tendon reflexes were 2/4 and equal bilaterally, and there was no sensorimotor change or atrophy of her lower extremities. The examiner diagnosed chronic lumbosacral strain. After this VA examination, the veteran continued to receive outpatient treatment for her low back disability. In June 1992, just two days before the VA examination, the veteran received physical therapy treatment at the VA neurology clinic. At that time, the veteran described tenderness over both sacroiliac joints which was greater on the left side. The veteran also reported that she is independent in all activities but still complained of chronic generalized joint pain and fatigue and that flexion exercises aggravate her pain. The plan was to participate in physical therapy daily for heat and ultrasound of her low back and for back exercises. Therapy sessions were instructed to last 30-45 minutes. Additional records indicate that the veteran received physical therapy treatment several times a week for the next five-and-a-half months. A November 1992 outpatient treatment record, which is the most recent record of treatment that the veteran has received for her low back disability that is included in the claims folder, indicates that the veteran continued to complain of constant pain and tenderness in the low back and sacral area which is greater on the right side. The veteran also reported that, although she is functionally independent, persistent symptoms interfere with her endurance capability and ability to perform strenuous and sustained activities. The physical therapist noted that the veteran is unable to do any exercises without exacerbation of pain. According to the physical therapist's report, the veteran's trunk mobility is limited, the area adjacent to the L5-S1 level remains swollen and tender, and the veteran is being maintained with moist heat application and ultrasound to the area of pain. The therapist indicated that the veteran will continue symptomatic treatment until she is evaluated in the Pain Clinic. According to this recent medical evidence, the veteran has no postural abnormalities or fixed deformities, is able to squat and rise without complaint, and is able to heel and toe stand without complaint. Significantly, however, she also has, with regard to her low back disability, arthritis, spondylosis, lumbosacral spasms, limitation of motion, and tender and swollen muscles. This evidence clearly shows marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes, narrowing or irregularity of joint space, and abnormal mobility on forced motion, which is productive of severe lumbosacral strain. See, 38 C.F.R. Part 4, § 4.71a, Code 5295 (1994). The Board notes that, according to a January 1992 outpatient treatment report, the veteran was involved in a post-service automobile accident in October 1991. At the January 1992 treatment session, the veteran appeared to indicate that her back symptoms of pain radiating to her lower extremities had increased in severity after this automobile accident. The Board believes, however, that it would be impossible to disassociate the symptoms related to her service-connected low back disability and those related to the back injuries she may have sustained in the post-service car accident. The regulations require that the evaluation of a disability of the musculoskeletal system must take into account the functional loss due to pain of the damaged part of the system and due to arthritis. 38 C.F.R. Part 4, §§ 4.40 and 4.59 (1994). In the present case, due regard has been given to the veteran's report of pain and tenderness, which continues to be treat with physical therapy and medication as needed. While arthritis, spondylosis, spasms and swollen muscles, and tenderness are shown to contribute to resistance to motion and to function loss, no postural abnormalities or fixed deformities were noted on recent examination, and the veteran was able to squat and rise and to heel and toe stand without complaint. On the basis of the entire lumbar spine disability picture, the 40 percent schedular rating assigned for lumbosacral strain with arthritis and muscle spasms is appropriate. Consequently, the Board concludes that a 40 percent rating is warranted for severe lumbosacral strain under Diagnostic Code 5295. A rating in excess of 40 percent is not warranted, however. Despite the veteran's complaints of pain radiating from her low back to her lower extremities and of a burning sensation in her lower extremities, the recent medical evidence demonstrated that here deep tendon reflexes were 2/4 and equal bilaterally and that there was no sensorimotor change or atrophy of the lower extremity. Consequently, there is insufficient evidence to warrant a finding of neurological deficit to such severity as to require the assignment of a 60 percent rating under Code 5293. See, 38 C.F.R. Part 4, § 4.71a, Code 5293 (1994). Moreover, the lack of findings of neurological abnormalities indicates that further neurological examination is not necessary to evaluate the veteran's low back disability. The limitation of motion codes do not allow for a rating higher than 40 percent. Therefore, the veteran cannot receive an evaluation for his service-connected low back disability based on the arthritis or limitation of motion of his lumbar spine. See, 38 C.F.R. Part 4, § 4.71a, Codes 5003, 5010, 5292 (1994). Furthermore, the recent medical evidence does not indicate any ankylosis or residuals of a fracture of the lumbar spine. Consequently, evaluations higher than 40 percent cannot be granted under Diagnostic Codes 5285, 5286, or 5289. Accordingly, while a 40 percent rating is granted, a rating in excess of 40 percent is not in order. As noted above, 38 C.F.R. §§ 4.40 and 4.59 (1993) were considered in reaching a determination in this case; however, other provisions of 38 C.F.R. Parts 3 and 4 have also been considered as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). For example, the possibility of an extraschedular evaluation has been considered. The case does not present an exceptional or unusual disability picture with such factors as frequent hospitalization so as to preclude the use of the regular rating criteria. Thus, an increased rating on an extraschedular basis under 38 C.F.R. § 3.321 is not in order. III. Left Eyelid The veteran's claim of entitlement to a compensable disability evaluation for a post-operative growth on the left eyelid is well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that the veteran has presented a claim which is plausible. The Board is also satisfied that all relevant 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); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (1994). In an August 1979 rating decision, the RO in Fort Harrison, Montana granted service connection for a growth removal on the left eyelid and rated the disability as noncompensably disabling, effective from June 1979. The service medical records showed that in December 1974, she had a growth over her left eyelid removed. The separation examination indicated that the veteran had had a chalazion removed from her left upper eyelid. According to the discharge examination, the veteran's recovery from this surgery was good, and there were no complications. In a December 1990 decision, the RO in Huntington, West Virginia redefined this disability as post-operative growth on the left eyelid but confirmed the noncompensable rating. Disability evaluations are administered under a Schedule for Rating Disabilities which is found in 38 C.F.R. Part 4 (1994) and is designed to compensate a veteran for the average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. Id. As the Board has previously discussed, the primary concern in a claim for an increased evaluation for a service-connected disability is the present level of disability. The Court has recently held that, although a rating specialist is directed to review the recorded history of a disability in order 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). With these regulations and this Court decision in mind, the Board will address the issue of the evaluation of the present level of disability resulting from the veteran's post-operative growth on her left eyelid. This disability is presently evaluated as noncompensably disabling under Diagnostic Code 7805. Pursuant to this Code, a scar is evaluated based on the limitation of motion of the part affected. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, § 4.118, Code 7805 (1994). Furthermore, a moderately disfiguring scar on the face warrants a 10 percent rating. 38 C.F.R. Part 4, § 4.118, Code 7800 (1994). In addition, evidence of a poorly nourished superficial scar with repeated ulceration warrants the assignment of a 10 percent evaluation. 38 C.F.R. Part 4, § 4.118, Code 7803 (1994). Also, evidence of a superficial scar which is tender and painful on objective demonstration would result in the assignment of a 10 percent rating. 38 C.F.R. Part 4, § 4.118, Code 7803 (1994). In the substantive appeal, the veteran contended that since June 1989 the growth on her left eyelid has returned and that the scar is sometimes tender. She also explained that she must be careful in washing the area around her left eye to prevent irritation. A review of the medical evidence of record demonstrates that the scar on the veteran's left eyelid is manifested by essentially no disfigurement of her face, no lack of nourishment or repeated ulceration, no tenderness or pain on objective demonstration, and no limitation of function of the left eyelid. Therefore, a compensable disability rating is not warranted. The reasons and evidence will be discussed below. A review of the claims folder indicates that the veteran did not submit any records of outpatient treatment for her service-connected left eyelid disability pursuant to the present appeal. Furthermore, most of the records of eye treatment received after separation from service but prior to the current appeal concerned treatment the veteran received for her right eye. According to a private physicians' statement in June 1988, the veteran received an examination of her eyes in May 1988. At that time, she had decreased vision in her left eye. On examination, the physician found that the anterior segment examination was within normal limits, the vitreous was clear, there was no significant syneresis, the fundus examination noted a normal peripheral retina, there were no retinal holes or lattice degeneration, and the optic disc and macula were normal. At the May 1988 examination, the examining physician noted no abnormalities associated with the veteran's service-connected post-operative growth on her left eyelid, and the veteran made no complaints regarding this service-connected disability. At the VA examination conducted in November 1990, the veteran reported that the growth on her left eyelid which had been removed during service had begun to grow back in approximately 1986 or 1987. In addition, she told the examiner that the growth is a little tender at times and that she still has no effect on her vision. Upon examination of the veteran's eyes, the examiner noted that the veteran's pupils were equal, round, and reactive to light and that her extraocular muscles were intact. On the left superior eyelid at the margin with the lashes in the midline, the examiner observed an approximately two-millimeter-by-four-millimeter raised but mobile and firm area which was nontender. The fundi and fields of vision were within normal limits. There was no apparent restriction of underlying tissues or nearby structures. The examiner concluded that, otherwise, the examination of the veteran's eyelids and eye margins were unremarkable. The examiner diagnosed a post-operative growth on the left superior eyelid, with a small recurrence of the growth and no hindrance to vision. Significantly, with regard to the post-operative growth on the veteran's left eyelid, the VA examination showed essentially no disfigurement of her face and no lack of nourishment or repeated ulceration. In addition, the examiner specifically stated that the scar was nontender and that there was no apparent restriction of underlying tissues or nearby structures. The Board acknowledges the veteran's contention that, although this examination did not demonstrate a tender and painful scar, her scar is sometimes tender and painful. However, without any recent outpatient records concerning treatment for this service-connected disability, the only medical evidence regarding this condition is the June 1988 letter from the private physician who examined the veteran and the November 1990 VA examination report. Neither of these reports show that the scar on the veteran's left eyelid is tender or painful. Furthermore, the Board also notes that the examiner noted the recurrence of a small growth on the veteran's left eyelid. However, this statement appears to be based on the veteran's own statements. Moreover, the veteran has presented inconsistent assertions as to the time that the growth alleged began to recur. At the time of the November 1990 VA examination, the veteran reported to the examiner that the growth began to come back in approximately 1986 or 1987. However, in the substantive appeal, which was received at the RO in July 1991, she contended that the growth did not reappear until approximately the middle of 1989. In any event, even if the Board were to find that the growth on the veteran's left eyelid has reappeared to even some extent, this recurrence has not resulted in any functional impairment of the veteran's left eye, as the VA examination demonstrated. Therefore, the scar on the veteran's left eyelid has resulted in essentially no disfigurement of her face, no lack of nourishment or repeated ulceration, no tenderness or pain on objective demonstration, and no limitation of function of the left eyelid. She clearly is not entitled to a compensable rating for this service-connected disability. See, 38 C.F.R. Part 4, § 4.118, Codes 7800, 7803, 7804, 7805 (1994). The provisions of 38 C.F.R. §§ 4.40 (1993) were considered in reaching a determination in this case. In addition, other provisions of 38 C.F.R. Parts 3 and 4 have also been considered as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). For example, the possibility of an extraschedular evaluation has been considered. However, the Board finds that the present case does not present an exceptional or unusual disability picture with such factors as frequent hospitalization so as to preclude the use of the regular rating criteria. Thus, an increased rating on an extraschedular basis under 38 C.F.R. § 3.321 is not in order. ORDER New and material evidence not having been submitted, a petition to reopen a claim of entitlement to service connection for bilateral hearing loss is denied. A 40 percent rating, but no higher, for lumbosacral strain with disc space narrowing and muscle spasm is granted, subject to the law and regulations governing the award of monetary benefits. A compensable disability rating for post-operative growth of the left eyelid is denied. SAMUEL W. WARNER 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.