BVA9503207 DOCKET NO. 92-16 420 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased disability evaluation for spondylolisthesis, currently evaluated 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. F. Gussio, Associate Counsel INTRODUCTION The veteran had active military service from January 1978 to August 1983. This appeal to the Board of Veterans' Appeals (Board) arises from a March 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The case was remanded to the RO in September 1993. The veteran claims that he had active service prior to January 1978. He claims that he served from July 1970 to August 1983. Service prior to January 1978 has not been verified by the service department. Although the veteran's service prior to January 1978 has not been verified, service verification of his previous service is not pertinent to the issue on appeal. Service connection for the claimed disability has already been established and such verification would unnecessarily delay the veteran's appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected spondylolisthesis has increased in severity and warrants a higher rating. He claims that he has increased back pain and limitation of motion that effects his ability to work. He claims that he takes medication and uses a TENS unit for the pain. He also claims that he sees a chiropractor on a regular basis. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the grant of a 40 percent disability rating for his service-connected spondylolisthesis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's service-connected spondylolisthesis is manifested by chronic back pain and severe limitation of motion. CONCLUSION OF LAW A 40 percent evaluation for the service-connected spondylolisthesis is warranted. 38 U.S.C.A. §§ 1155, 5107 (b) (West 1991); 38 C.F.R. §§ 4.3, 4.40, 4.59 and Part 4, Code 5292 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (1991). That is, he has presented a claim which is plausible. The Board is satisfied that all relevant facts have been properly developed. The case was remanded to the RO in September 1993 to obtain private treatment records from Larry Marti, M.D., and W. Darnell Ray, D.C. The RO was further instructed to obtain any additional VA treatment records since January 1992 and schedule the veteran for a VA examination. Additional treatment records were received from W. Darnell Ray, D.C., and the VA. The veteran was also examined by the VA in April 1994. The RO attempted to obtain the treatment records from Dr. Marti, but the attempt was fruitless. The Board is of the opinion that further attempts by the RO to obtain Dr. Marti's treatment records would be futile. Accordingly, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO to the extent possible. No further assistance to the veteran is required in order to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a) (West 1991). Service connection for spondylolisthesis was established effective August 1983 and assigned a 10 percent disability rating at that time. In March 1992, the RO increased the veteran's disability rating from 10 percent to 20 percent effective May 1991. The veteran now claims that his service-connected spondylolisthesis has increased in severity and warrants a higher rating. The veteran's service medical records reveal that he injured his low back in 1981. Multiple complaints of low back pain were noted following the injury. On the Medical Board evaluation in May 1983, the diagnosis was Grade II spondylolisthesis. The veteran was discharged unfit for duty. On VA examination in September 1983, the veteran complained of constant low back pain that radiated down the left thigh and leg. Examination of the back revealed the vertebral alignment was normal. There was no paraspinal spasm or localized tenderness. Flexion of the lumbosacral spine was to 90 degrees. Extension was to 45 degrees. Lateral bending to the left and right was 50 degrees. Rotation was normal. Examination of the lower extremities revealed no abnormal findings. X-rays of the lumbosacral spine revealed spondylolisthesis at L5-S1. The diagnosis was spondylolisthesis, Grade II, with neuropathy by history. On VA orthopedic examination in September 1985, the veteran reported no complaints of the back. Examination revealed a lower thoracolumbar scoliosis with convexity to the left. There was no localized tenderness or paraspinal spasm. He had full range of motion in the lumbosacral area. X-rays of the lumbosacral spine revealed spondylolytic spondylolisthesis with degenerative arthritis at L5-S1 and scoliosis. The diagnoses were spondylolisthesis, symptomatic, by history, probably unchanged since past examination, and lumbosacral scoliosis. In a private report dated in June 1990, W. Darnell Ray, D.C., stated that he had treated the veteran for low back pain and numbness in his legs since 1984. In June 1990, the diagnoses were moderate anomalies sacralization of L5 vertebra, uneven leg length and moderate degenerative lumbar disc, and mild compression of the lumbar root. On VA examination in October 1990, the veteran complained of frequent lumbar and limitation of motion. Physical examination revealed he had L5-S1, and L4-L5 accentuating tenderness bilaterally. Range of motion of the low back revealed flexion was to 82 degrees, extension was to 30 degrees, lateral flexion was to 35 degrees in each direction, and rotation was normal in each direction. Straight leg raising was negative, bilaterally. His motor strength was 5/5 for knee extension, plantar flexion and dorsiflexion, both sides. His reflexes were 2 plus at the knees and ankles, bilaterally. He had normal sensation to touch throughout both lower extremities. He was able to walk on his heals and toes without difficulty. X-rays of the lumbar spine revealed lumbar scoliotic deformity, probably secondary to developmental abnormality of L2; otherwise, the examination was negative. The diagnoses were congenital abnormality of the spine and chronic low back pain. VA outpatient treatment and hospital records from January 1991 to January 1992 reveal that the veteran was treated for low back pain. He was admitted to the hospital for one day in July 1991 and subsequently hospitalized from May to June 1991 for complaints of low back pain. He was provided a TENS unit and prescribed physical therapy and medication. The diagnosis was low back pain. In a private statement dated in May 1992, W. Darnell Ray, D.C., stated that the veteran would continue to have pain in his back due to the osseous anomalies and structural weakening of the lumbosacral joint. This would be aggravated by stress, fatigue, or lifting. His treatment was for prevention of future degeneration of affected joints. On the VA spinal examination in May 1992, physical examination revealed a normal gait and no obvious back deformities. Lower extremity strength was 5/5 in all muscle groups, bilaterally. The straight leg raising was negative, bilaterally. Back flexion and extension were 65 degrees and 30 degrees, respectively. Left and right lateral flexion were to 35 degrees, bilaterally. There was minimal lumbosacral tenderness. The neurological examination was normal. The diagnosis was spondylolisthesis, currently very stable, with no evidence of major nerve compression, and slightly diminished back range of motion. VA outpatient treatment records from January 1992 to February 1994 reveal that the veteran received physical therapy for low back pain. In July 1993, the diagnosis was low back pain, secondary to spondylolisthesis. On VA examination in April 1994, the veteran's complaints consisted of popping and clicking in his back, back pain that was aggravated with activity, and pain and weakness that radiated down his left leg. He reported that he was seen by a chiropractor with some improvement. Physical evaluation of the back revealed that there were no postural abnormalities, fixed deformities, or defects in the musculature of his back. Range of motion of the low back revealed forward flexion was to approximately 80 degrees, backward extension was to approximately 15 degrees, lateral flexion both to the right and to the left was to approximately 10 degrees. He had a trigger point which was painful on the left at approximately L3 and L4. There appeared to be no evidence of neurological involvement. X-rays of the lumbosacral spine revealed Grade II spondylolisthesis with spondylolysis at the L5-S1, associated vacuum disc, and unchanged lumbar scoliosis and mild osteophytosis. The diagnoses were chronic low back pain and Grade II spondylolisthesis. The veteran's representative argues that the findings on the most recent VA examination warrants the assignment of a 40 percent disability rating under Diagnostic Code 5293. The veteran's service-connected spondylolisthesis, however, is rated under Code 5295 for lumbosacral strains. In the alternative, his service- connected spondylolisthesis may be evaluated on the basis of limitation of motion of the low back under Code 5292. In general, disability evaluations are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, (1992). Moderate limitation of motion of the lumbar segment of the spine warrants a 20 percent evaluation. A 40 percent evaluation requires severe limitation of motion. 38 C.F.R. Part 4, Code 5292. A 20 percent evaluation is warranted for moderate intervertebral disc syndrome with recurring attacks. A 40 percent evaluation requires severe intervertebral disc syndrome with recurring attacks with intermittent relief. A 60 percent evaluation requires pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy and little intermittent relief. 38 C.F.R. Part 4, Code 5293. A 20 percent evaluation is warranted for lumbosacral strain where there is muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. A 40 percent evaluation requires severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Golthwaits's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space. A 40 percent evaluation is also warranted if only some of these manifestations are present if there is also abnormal mobility on forced motion. 38 C.F.R. Part 4, Code 5295. To warrant the higher (40 percent evaluation), the evidence would have to show either severe limitation of motion (5292), or severe intervertebral disc syndrome with recurring attacks with intermittent relief (5293), or severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Golthwaits's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritis changes, or narrowing or irregularity of the joint space (5295). On the most recent VA examination in April 1994, range of motion of the low back revealed forward flexion was to approximately 80 degrees, backward extension was to approximately 15 degrees, and lateral flexion both to the right and to the left was to approximately 10 degrees. Such clinical findings reflect severe limitation of motion under Code 5292. Thus, particularly when the provisions of 38 C.F.R. § 4.40 (functional loss) and § 4.59 (painful motion) are considered, a 40 percent disability rating is warranted pursuant to Code 5292. However, the criteria for a higher schedular rating under Codes 5292, 5293, or 5295 have not been met. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, we find that the evidence discussed above does not suggest that the veteran's service-connected spondylolisthesis presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant an assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1993). For example, the disability did not recently require frequent periods of hospitalization, nor does it present marked interference with employment that has not already been contemplated by the current evaluation. ORDER A 40 percent disability rating for the veteran's spondylolisthesis is granted, subject to the regulations governing the payment of monetary benefits. J. U. JOHNSON 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. (CONTINUED ON NEXT PAGE) 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.