BVA9502543 DOCKET NO. 93-10 071 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an increased rating for the postoperative residuals of a low back disorder, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Tresa Schlecht, Associate Counsel INTRODUCTION The appellant had active service from September 1962 to March 1967 and from June 1968 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which denied entitlement to an increased rating for a back condition, currently evaluated as 20 percent disabling. The low back disorder is currently classified by the RO as status post enucleation herniated nucleus pulposus L4-L5, with degenerative arthritis of the lumbosacral spine. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that his low back disorder has increased in severity because he has more frequent attacks of leg and back pain and because of the continuous nature of his back pain. He contends that his back condition is more than 20 percent disabling. 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 the claim for an increased evaluation for appellant's low back disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the claimant's appeal has been obtained by the RO. 2. The residuals of appellant's service-connected lumbar surgery at L4-5 and degenerative arthritis are manifested primarily by slight numbness and pain in his legs and back pain and complaints of spasm with pain with normal walking gait, no muscle wasting, and no more than slight limitation of range of motion of the lumbar spine. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for the appellant's back condition have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.2, 4.40, 4.59, 4.7, 4.71a, Diagnostic Codes 5003, 5292, 5293, 5295 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's assertion that his service-connected disability is severely rather than moderately disabling constitutes a well grounded claim within the meaning of 38 U.S.C.A. § 5107(a), which mandates a duty to assist the veteran in developing all facts relevant to the claim. Littke v. Derwinski, 1 Vet.App. 90, 93 (1990). The evidence on file includes service medical records, a comprehensive VA examination performed in March 1992 which included evaluation of the range of motion of appellant's back and his subjective complaints, as well as radiologic examination, and a September 1992 statement from a private physician. This evidence is sufficient in scope and depth for a fair, impartial, and fully informed appellate decision and the duty to assist has been fulfilled. 38 U.S.C.A. § 5107. In the evaluation of service-connected disabilities the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. The appellant's service medical records indicate that, in 1978, he had a hemilaminectomy at L4-5. In 1979, he had a right and left hemilaminectomy at L4-5 and L5-S1. The veteran was awarded service-connection for his post-operative low back disorder in 1984, and the disability was rated at 20 percent. Where, as in this case, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). On VA examination conducted in March 1992, the appellant stated that he had pain and spasm in his low back almost all the time, with intermittent increase in pain with radiation of pain to the left ankle. On examination, the examiner found that the appellant had a normal walking gait and normal posture, without deformity. He complained of pain on the right side with straight leg raising to 30 degrees, tightness and pain on the right side of the lower back and in the right hamstring. There was a slight disturbance in sensation on the lateral aspects of both lower legs and diminished Achilles tendon reflex, more noticeable on the right side. The musculature of the back and lower extremities was described as essentially normal. The appellant's forward flexion was described as an inability to go up more than 140 degrees, and he could go down to 95 degrees. He reportedly had backward extension to 30 degrees. Rotation of the spine was to 35 degrees, with some pain on rotation on the right side. Bilateral lateral flexion was said to be normal. Radiologic examination confirmed a narrowed disc space at L4-5 and disc degeneration. An unsigned report of a physical examination, reportedly by a Dr. Quellman, is on file. During the examination, conducted in September 1992, the appellant stated that he had pain in his outer lower legs and numbness, with an increasing number of intermittent flare-ups of back pain and sciatic pain, responsive to rest and conservative treatment. Reportedly the flare-ups had increased in the last 5 years. The examiner described no muscle wasting. The veteran's flexibility was said to be that he could reach to about 6 inches from his toes. Extension and lateral bends were intact. Straight leg raising and neurologic findings were symmetric and intact. The examiner who conducted the September 1992 examination noted that the appellant continues to work full-time for the Postal Service, but his back conditions required a change in his duties to indoor work such as letter sorting. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. An extraschedular evaluation will be assigned if the case presents an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization such as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The appellant's back disorder can be rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293, and 5003. Reviewing the appellant's current disability, his medical and industrial history, and the rating criteria under each of the diagnostic codes under which the appellant's back condition may be rated, the evidence establishes no basis for an evaluation in excess of 20 percent disabling for appellant's back condition. Separate evaluations under the applicable codes are prohibited. See 38 C.F.R. § 4.14. Two of the diagnostic codes applicable to appellant's back disorder rate the disability on the basis of range of motion. Under Diagnostic Code 5003 as it applies to this case, arthritis of the lumbar spine is rated on the basis of loss of motion. Under Diagnostic Code 5292, slight limitation of the lumbar spine warrants a 10 percent disability evaluation, while a moderate limitation of motion warrants a 20 percent evaluation, and severe limitation of motion of the lumbar spine warrants a 40 percent evaluation. From an industrial standpoint, the most important motion of the back generally is forward flexion, since it is utilized for bending, lifting and pushing. It is common knowledge that most individuals without back pathology or disability have the ability to bend forward (forward flexion) to at least approximately a right angle position (90 degrees). It is also common knowledge that backward movement of the upper body (backward extension), side to side movement of the upper body (lateral flexion), and twisting movement of the upper body (rotation) are possible to a significantly lesser extent (approximately one third of forward flexion). Here, current examination shows that the appellant has slightly less than normal forward flexion, with the examiner stating he comes within 6" of touching his fingertips to his toes. It was described as 95 degrees down on the VA examination, with some limitation elevating to full extension. He has 30 degrees of backward extension, compared to normal range of motion of the lumbar spine of 35 degrees of backward extension. He has normal lateral flexion, 40 degrees, and normal lumbar rotation, 35 degrees, with some pain on the right. Overall, these findings are indicative of slight or minimal limitation of motion of the lumbar spine. It is also noted that these ranges of motion are better than those recorded at the time of VA examinations in 1984 and 1986. Under 38 C.F.R. § 4.40, pain is considered as a factor in function loss as well as actual loss of range of motion. Even considering § 4.40, however, an evaluation in excess of the current 20 percent disability rating would not be warranted under Diagnostic Code 5292. The compensable rating assigned under the applicable codes contemplates some limitation due to pain. The appellant's back condition can also be rated under Diagnostic Code 5293. The rating criteria under that diagnostic code provide a 20 percent rating for moderate symptoms of intervertebral disc syndrome manifested by recurring attacks. A 40 percent evaluation is warranted for severe intervertebral disc syndrome with recurring attacks with intermittent relief. The 20 percent evaluation includes moderate symptoms of intervertebral disc syndrome, which would include moderate neurologic signs and pain. Here, the appellant's symptoms have not prevented him from working full-time. The examiner found that the appellant has vague diffuse pain in his lower back. Although the appellant complained subjectively of spasm in the lower back, neither examiner noted objective signs of back spasm during examination. Although the examiner who saw the appellant in September 1992 stated that he has recurring attacks of increased pain, which require time off work, he stated that these attacks usually respond to rest and conservative treatment. The appellant did not specify how frequently he experiences attacks of increased pain or how may days he had lost from work due to his back condition. The examiner noted that the appellant has not had attacks of radiculitis sciatica, had no signs of sciatica, and may continue his work, but should maintain good back hygiene and posture. The VA examination reported mild sensory changes in the lower extremity, but these were not confirmed by the private examiner. The appellant has not indicated in any examination of record that his back condition interferes with normal activities such as driving, walking, sitting, or similar activities. The examiner who conducted the September 1992 examination specifically recommended that the appellant take daily walks. The appellant's disability picture, consisting of some continuing neurologic symptoms and pain, more nearly approximates the criteria for a 20 percent evaluation under Diagnostic Code 5293. This evaluation is also consistent with 38 C.F.R. § 4.40, which requires that loss of function due to pain be considered in rating musculoskeletal conditions. A higher rating would not be available if the appellant's back condition were to be rated under Diagnostic Code 5295. Under Code 5295, a 20 percent rating encompasses pain on motion, muscle spasm on extreme forward bending, and loss of lateral spine motion. A 40 percent rating is assigned for severe lumbosacral strain with listing of the whole spine, a positive Goldthwait's sign, marked limitation of forward bending, or narrowing or irregularity of the joint space, and abnormal mobility on forced motion. The evidence of record establishes that the appellant's clinical condition does not approximate the criteria for a 40 percent rating under Diagnostic Code 5295, although it does approximate the criteria for a 20 percent rating. Thus, under any of the applicable codes, a 20 percent rating would be warranted. The assignment of separate ratings under the codes for the same pathology is prohibited. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet.App. 259 (1994). Considering all of the evidence, the appellant's symptoms, as described on examinations in March and September 1992, do not approximate the standard of severe neurologic symptoms and pain or a severe limitation of motion of the lumbar spine such as to warrant a disability rating in excess of 20 percent. Although the evidence of record established that appellant always has some symptoms of his back condition, the currently-assigned 20 percent evaluation contemplates a moderate level of pain and neurologic symptoms consistent with his back condition. An extraschedular evaluation is not warranted, since the evidence does not show that the service-connected back condition presents such an unusual or exceptional disability picture with marked interference with employment or frequent periods of hospitalization as to render the application of the regular schedular standards impractical. 38 C.F.R. § 3.321(b)(1). The appellant has not been recently hospitalized for that disability and he maintains full-time employment. He reports no restriction of his ability to carry out normal daily activities. Since the preponderance of the evidence is against allowance of this appeal, the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b). ORDER An increased rating for the postoperative residuals of a low back disorder in excess of 20 percent is denied. ___________________________________ MICHAEL D. LYON 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.