BVA9503987 DOCKET NO. 93-11 274 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an evaluation in excess of 20 percent for a back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from July 1970 to December 1976. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from an October 1991 rating decision of the Jackson, Mississippi, Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which denied entitlement to an evaluation in excess of 20 percent for the appellant's back condition. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he is entitled to an evaluation in excess of 20 percent for his back disability. He argues that he currently suffers from continuous back pain with intermittent radiating pain and numbness to his lower extremities, as well as daily muscle spasms, which are aggravated by bending, lifting, prolonged sitting, standing, or walking. 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 appellant'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 appellant's claim for entitlement to an evaluation in excess of 20 percent for the appellant's back disability. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal has been obtained by the RO. 2. The appellant's back disability is currently manifested by subjective complaints of back pain with intermittent radiating pain and numbness down the entire legs to the feet, as well as complaints of daily muscle spasms, which are aggravated by slight exertion. 3. Objective clinical evidence of record indicates the appellant was able to squat approximately half way, and walk heel to toe satisfactorily. Objective range of motion studies for the back revealed no more than moderate limitation, and the appellant was found to have a normal gait, station, Romberg and straight leg raising test. There was no objective evidence of muscle spasms or tenderness of the back found during orthopedic examination. 4. Objective neurological findings included decreased reflexes in the lower extremities bilaterally, and decreased pin prick over the lateral right foot. CAT scan, EMG and MRI reports indicated a diffuse bulging of the intervertebral disc; mild to moderate spinal stenosis and lumbar scoliosis; and right radiculopathy with mixed mild polyneuropathy. There are no clinical objective findings of muscle spasms in the back; nor any clinical findings suggestive of a severe back disability. 5. More than moderate impairment has not been show with respect to the appellant's service connected back disability. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for a back disability have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.59, 4.71, and Part 4, Diagnostic Codes (DC) 5292, 5293 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we find that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. §5107(a) (West 1991), in that he has presented a claim which is plausible. See Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992); Jones v. Brown, 7 Vet.App. 134, 138 (1994). This being so, we must examine the record to determine whether the VA has a further obligation to assist in the development of facts pertinent to her claim. 38 U.S.C.A. §5107(a) (West 1991). The evidentiary record contains complete service medical records, as well as post-service medical records and VA examinations which adequate detail the history of the appellant's in-service back injury, resulting surgeries and continued treatment. In addition, both orthopedic and neurological VA examinations were conducted 1991, with a second orthopedic examination conducted in 1992. Furthermore, a personal hearing was conducted in May 1992. Therefore, we are satisfied that all relevant facts have been properly developed and that no useful purpose would be served by remanding the case with instructions to provide additional assistance to the appellant, as the medical reports of record adequately detail the entire history of the appellant's service- connected back disability, particularly as it affects the ordinary conditions of daily life, as required by provisions of 38 C.F.R. §§ 4.1, 4.2, 4.10 and other applicable provisions. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1994); Gilbert v. Derwinski 1 Vet.App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based upon an average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1994). Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3, 4.7 (1994). In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the appellant, as well as the entire history of the appellant's disability in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Diagnostic Code (DC) 5293 provides a 20 percent evaluation for moderate intervertebral disc syndrome with recurring attacks; a severe degree of disability with recurring attacks and intermittent relief may warrant a 40 percent evaluation. 38 C.F.R. Part 4, DC 5293. Pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy, characteristic pain and demonstrable muscle spasm, absent ankle jerks or other neurologic findings appropriate to site of the diseased disc, with little intermittent relief, may warrant a 60 percent evaluation. Id. Alternatively, a 10 percent evaluation may be assigned for slight limitation of motion of the lumbar spine, a 20 percent evaluation for moderate limitation of motion and a 40 percent evaluation for severe limitation of motion of the lumbar spine. 38 C.F.R. Part 4, DC 5292. Service medical records reflect that the appellant had a lumbar myelogram and was diagnosed with a herniated nucleus pulposus in 1973, resulting in a diskectomy at the right L5-S1 with exploration and an interlaminar exploration of the right L4-L5. Upon examination prior to separation from service in August 1976, the examiner noted a well-healed three and one-half inch midline lumbar scar, with full strength and range of motion of the back. By a rating decision dated in May 1977, service connection for status post-operative excision at L5-S1 intervertebral disc was granted, with a noncompensable evaluation assigned from December 1976. In April 1988, the appellant reopened said claim requesting an increased evaluation, which was denied in an April 1989 rating decision. Subsequently, a June 1990 Board decision established entitlement to a 20 percent evaluation for the appellant's service-connected back condition, which was effectuated in a July 1990 rating decision. Such 20 percent evaluation was confirmed in a rating decision dated in August 1991. The appellant reopened his claim in September 1991, which was denied in an October 1991 rating decision. He expressed disagreement with such October 1991 rating decision the following month. During a May 1991 VA neurological examination, the appellant reported a low grade pain in his back with intermittent radiating numbness down both thighs and to his right foot. He complained that his legs felt more tired than he thought they should. Upon examination, the neurologic examiner indicated the appellant had normal muscle tone and strength with no atrophy, fasciculation or abnormal movements of the back, with normal gait, station, Romberg and straight leg raising tests. In addition, he noted no muscle spasms upon palpation of the back were present at this time. Sensory examination revealed decreased to absent reflexes in the lower extremities with absent ankle jerks bilaterally. However, the examiner concluded that such findings "could be attributable to his disc surgery or may simply be a feature of the hyporeflexic state with is not necessarily abnormal." A spinal examination revealed lower back pain with pain and numbness radiating down both legs. Objective range of motion studies of the lumbosacral spine indicated 60 degrees of flexion; 30 degrees extension; and 25 degrees lateral rotation. A VA April 1991 MRI report of the lumbar spine associated with this examination indicated mild to moderate spinal stenosis, most severe at the L4-5 level, with some minimally enhancing tissue thought to be most consistent with some residual scar tissue. Accompanying x-rays of the lumbosacral spine indicated a minimal amount of lumbar scoliosis. VA OPT reports indicated the appellant underwent a CAT scan of the lumbar spine in September 1991, and an October 1991 EMG. The CAT scan revealed diffuse bulging of the intervertebral disc at the L3-L4, L4-L5, and L5-S1 levels; hypertrophic facet arthropathy at the L3-L4 and L4-L5 levels; and mild to moderate spinal stenosis at the L4-L5 and L5-S1 levels. In addition, the EMG report indicated right L5 radiculopathy with mild mixed axonal-demyelinating peripheral polyneuropathy, with a notation of diabetes mellitus. The EMG was said to be most remarkable for abnormalities in the muscles of the 5th lumbar distribution. During a May 1992 personal hearing, the appellant testified that he currently suffered from continuous stiffness and tightening pain in the back, with a tingling pain radiating down the entire legs to the feet. In addition, the appellant reported daily muscle spasms in his back which he described as a tightening of the muscles with occasional involuntary movement of his legs. He further testified that he was currently unable to continue his employment as a professor due to his inability to stand or walk for prolonged periods of time. In addition, the appellant reported recent relevant VA OPT treatment as well as private treatment from a chiropractor. The appellant's representative argued that a subjective evaluation by the May 1991 VA examiner had been evaluated by the rating board in objective terms, and requested a new objective VA examination so as to adequately evaluate the appellant's back disability. The Hearing Officer granted the appellant's request for an additional VA examination, as well as an extension in order to obtain recent treatment reports. VA OPT treatment records dated from October 1990 to May 1992 indicated complaints of pain in both legs, but without weakness. An October 1991 examination in the neurosurgery clinic indicated decreased pin prick over the lateral right foot. Deep tendon reflexes were 2 plus at the knees and ankles. Motor strength was 5/5 bilaterally. When seen at the neurosurgery clinic in May 1992, it was noted that deep tendon reflexes were diminished at both patella and both ankles. Reflexes were 1 plus. There was decrease to pin prick over both calves, but otherwise findings were within normal limits to pin prick testing. The veteran had experienced no bowel and bladder incontinence. Motor strength was 5/5 bilaterally. A June 1992 statement from the Arrowhead Clinic indicated chiropractic treatment of several months duration for persistent intermittent lower back and leg pain had resulted in a favorable response to treatment. During a June 1992 orthopedic examination, the appellant reported chronic low back pain which radiated down his legs to his feet, and was aggravated by bending, or lifting, as well as prolonged sitting, standing, or walking. In addition, he reported numbness and tingling of both upper legs. Upon examination, the orthopedic examiner noted a normal station and gait with a satisfactory toe and heel walk. Additional findings included a well-healed surgical scar on the lower lumbar region, with no definite muscle spasms or tenderness noted; absent reflexes to trace at both the knees and ankles; and an inability to squat more than half way. Objective range of motion studies of the back indicated 60 degrees of flexion and 20 degrees extension. Accompanying x-ray of the lumbosacral spine indicated mild narrowing of the L5-S1 interspace with mild scoliosis of the lumbar spine convexity to the right, and the October 1991 CAT scan was apparently reviewed. The orthopedic examiner concluded with a impression of chronic lumbar syndrome with lumbar stenosis by history. After a thorough review of the record, there is simply no objective clinical evidence of record to support an evaluation in excess of 20 percent for the appellant's current back disability, as the recent clinical evidence of record indicated no more than moderate functional impairment. The appellant can reportedly ambulate without difficulty, with limitation of motion of the lumbosacral spine found to be no more than moderate. In addition, objective testing revealed only mild to moderate spinal stenosis, lumbar scoliosis and polyneuropathy. Furthermore, there is no objective clinical evidence of demonstrable muscle spasm on either the 1991 or 1992 VA examinations, or on the recent VA OPT treatment reports. The current rating, under Code 5293 contemplated complaints of pain and weakness, as well as neurological symptomatology. Basically, the current objective clinical evidence demonstrated no change in the appellant's symptomatology since the June 1990 Board decision. Significantly, the 1992 private chiropractic treatment records indicated improvement. While it has been shown that the appellant suffers from pain and intermittent radiating numbness in his legs, as well as a disk bulge in his back, the Board concludes that such related symptomatology does not provide a basis for assigning a higher rating. The current rating contemplates pain and functional impairment, both orthopedic and neurologic. The record does not show demonstrable muscle spasms, more than moderate neurologic symptomatology, or severe limitation of motion of the lumbar spine such as to form a basis for an increased rating under the appropriate codes. See DC 5292, 5293. The appellant's current symptomatology more nearly approximates the criteria indicative of a 20 percent evaluation, and therefore, that evaluation should be continued. 38 C.F.R. § 4.7 (1994). It is noted that the reflexes in the lower extremities are diminished. This finding is also contemplated in the 20 percent rating assigned under Code 5293. Furthermore, there is no evidence of record of significant or marked interference with daily activities or frequent hospitalizations attributable to the appellant's back disability beyond that contemplated by the regular schedular provisions. The record shows no post-service hospitalizations for his service- connected disability. Thus, the Board does not find that this is such an unusual or exceptional disability picture as to render application of the provisions of the rating schedule impractical and therefore to warrant an extraschedular evaluation. 38 C.F.R. § 3.321(b) (1994). Since the preponderance of the evidence is against allowance of this issue, the benefit of the doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b) (West 1991). ORDER Entitlement to an evaluation in excess of 20 percent for a back disability 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.