Citation Nr: 0004486 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 97-22 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an increased disability rating for service-connected lumbosacral strain, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Board ATTORNEY FOR THE BOARD K. Gallagher, Counsel INTRODUCTION The veteran served on active duty from July 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) from a May 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied an increased disability rating for service-connected lumbosacral strain, currently rated as 10 percent disabling. The Board remanded this claim for further development of the evidence in July 1998. FINDINGS OF FACT Service-connected lumbosacral strain is currently manifested by characteristic pain on motion and a moderate limitation of motion of the lumbar spine. CONCLUSION OF LAW The criteria for increased disability rating to 20 percent, but not higher, for service-connected lumbosacral strain have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION In February 1997, the RO received a statement from the veteran in which he requested an increased disability rating for service-connected lumbosacral strain because he contended that his condition continued to worsen. Prior to this claim, the last time VA had evaluated the veteran's service-connected back condition was in 1990. The Board concludes that the veteran's February 1997 statement constituted a well grounded claim for an increased disability rating for the service-connected back disorder. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (holding that where a veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well grounded claim for an increased rating). Disability ratings are intended to compensate reduction in earning capacity as a result of the specific disorder. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such disorder in civilian occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). In considering the severity of a disability it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1999). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1999); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Service connection was granted in November 1971 for lumbosacral strain and a 10 percent rating assigned. A VA examination in September 1971 had resulted in a diagnosis of "No back pathology by physical or x-ray examination other than subjective vertebra tenderness." An October 1989 VA outpatient report reflected that the veteran was seen with complaints of low back pain. On an October 1989 VA examination conducted in connection with a claim for residuals of Agent Orange exposure, the examiner noted complaints of low back pain. On orthopedic examination, the lumbosacral spine had forward flexion to 75 degrees, backward extension of 20 degrees, and lateral bending of 20 degrees. An October 1989 x-ray report pertaining to the lumbosacral spine showed well preserved height of the lumbar vertebrae. Intervertebral spaces were fairly well preserved. There was no evidence of any degenerative changes or any other soft tissue or bony abnormality. Sacroiliac joints appeared normal. A December 1989 VA outpatient report reflected chronic back pain for several years and that the veteran reported that the pain was "aggravated by heavy lifting." Another notation stated, "C[omputed] T[omography] of [lumbosacral] spine - suspected [herniated nucleus pulposus] of L4-L5 - [complaints of] pain [and] intermittent numbness of [left] leg." The plan was to "give veteran first available app[ointmen]t in Neurosurgery - 6/15/90." No outpatient records from 1990 are in the file. Evidence of record in this case revealed that the veteran injured his lower back on the job in 1995. A letter, dated May 1995, from one private physician, M. L., to another, B. B., stated in pertinent part, According to the patient, he was at work on 5/1/95 when he was holding onto about a 150 pound bolt of cloth, it fell over while he was holding it, he had a severe back pain and even screamed out because of the severity of it. . . . He has had a number of studies including and (sic) EMG that showed some question of an L4 radiculopathy. An MRI scan was done that showed a disc herniation at the L4-5 level on the left. The patient states that he has had some pulled muscles before in his back, but he has never had pain like this. . . . His biggest medical problems in the past have been kidney stones. Private medical records show that following the injury sustained at work in 1995, the veteran was diagnosed with a lumbar herniated nucleus pulposus, L4-5, left, and he underwent a surgical procedure -- specifically, a lumbar hemilaminectomy, L4-5 left and diskectomy -- in May 1995. Following this procedure, the veteran did not experience relief from pain and so he underwent another surgical procedure -- specifically, a lumbar hemilaminectomy L5 left and re-exploratory of L4-5 diskectomy site, left, -- in September 1995. It was noted on the August-September 1995 discharge summary that the veteran's pain was significantly improved following this surgery. A progress note from a private neurosurgical clinic dated a month later in October 1995 reflected that the veteran reported that his pain was better although he still had pain and aches and occasionally still had a sharp component to his back and leg pain. It was noted that he had a mild limp. Straight leg raising test was negative bilaterally. In November 1995, he reported having a bad spell with recurrent pain with sharp pain that ran down the left leg. Notations in January and March 1996 reflect little change in the veteran's condition. In June 1996, the veteran seemed to be doing a little better until he tried doing some mowing in smooth thick grass for about 30 minutes which caused pain in his back. The doctor noted that the veteran sat with his left leg out in front of him which was typical for sciatica. In August 1996, the doctor noted that the veteran had reached maximum medical improvement and expressed the opinion that the veteran could do work that did not involve lifting over 15 pounds in a repetitive manner with no excessive bending or stooping. It was also noted that the veteran needed to be able to change positions every 20 minutes. In November 1996, the doctor noted that the veteran ambulated with a slight limp and straight leg raising was mildly positive in that the pain radiated just a little bit into the leg. In February 1997, the veteran had a minimal limp on examination. On a May 1997 VA Spine examination the examiner noted a "long history of back problems which were exacerbated in 1995 by an on-the-job lifting injury." It was noted that the veteran continued to have chronic low back pain, with some days being better than others. Activities such as bending, lifting, carrying, or twisting type motions would cause increased back pain. The doctor also noted that the veteran required frequent position changes as prolonged sitting, standing, or walking would increase pain. The veteran reported pain radiating into the left leg and foot and sometimes tingling and numbness in the left foot. On physical examination, the examiner noted that the veteran moved with a slight limp on the left. The veteran was able to stand erect. No spasm was noted. There was tenderness of the left lower region over a deep lipomatous nodule. Range of motion of the lumbar spine was 70 degrees of flexion and 25 degrees of extension. The veteran had pain on extremes of flexion. He had pain throughout lumbar extension. Right lateral bending was to 30 degrees with pain throughout the motion. Left lateral bending was to 25 degrees with pain throughout the motion. Going to the left was more painful than going to the right. Right and left lateral rotation was 25 degrees with pain throughout the motion. On supine straight leg raising examination, no definite radicular pain was noted, but he did have increased back pain, particularly with raising the left leg. He performed a fair heel and toe walk. He was able to squat and arise again while holding onto an adjacent chair for support. Reflexes were 2+ at the knees and trace at the ankles. Sensation was intact in the lower extremities. The examiner's diagnosis was "chronic lumbar syndrome with history of service-connected lumbosacral strain -- exacerbated by lifting injury -- postoperative times two." A May 1997 VA x-ray report reflected that the height of intervertebral disc spaces and vertebral bodies was unremarkable. The pedicles and transverse process were intact. There was evidence of a previous laminectomy on the left side at L5. The veteran claimed on his July 1997 VA Form 9 substantive appeal that his service-connected lumbosacral strain weakened his back, thereby causing or contributing to the additional injury sustained to his low back on the job in 1995. The Board construed these statements as a claim for service connection for the additional disability sustained to the low back in 1995 as secondary to the service-connected lumbosacral strain and, in its July 1998 remand order pertaining to the claim for an increased rating for lumbosacral strain instructed the RO to adjudicate this claim. In so doing, the Board noted a diagnosis of a VA physician in a May 1997 examination report, i.e., "chronic lumbar syndrome with history of service-connected lumbosacral strain -- exacerbated by lifting injury . . . ." The Board concluded that it could not fairly and appropriately review the claim for an increased rating for service-connected lumbosacral strain until the claim that the veteran articulated in his VA 9 had been adjudicated. The Board found that the medical evidence of record -- in particular the findings of the May 1997 VA examiner -- were too ambiguous about what current low back symptoms, if any, might be the manifestations of service-connected lumbosacral strain and what current symptoms are the residuals of the 1995 injury to the low back which, at the time of the remand were not service-connected but for which the veteran has articulated a claim for service connection. Therefore, the Board requested on remand that the veteran be afforded a VA examination by an examiner who would state, where possible, what manifestations or symptoms affecting the back were the result of the service-connected lumbosacral strain as opposed to any other current back disorder or pathology including the residuals of the injury to the back sustained in April 1995. On remand, a February 1999 VA x-ray report pertaining to the low back showed satisfactory alignment of the vertebral bodies. Vertebral body heights were well maintained. There was narrowing of the disc space at L4-L5 which was mild to moderate in degree. There were no acute fractures and the sacroiliac joints appeared to be within normal limits. A VA Spine examination was conducted in February 1999. The examiner noted the history of injury to the back in service in 1971 and intermittent low back pain following that injury. The examiner also noted that the veteran had reinjured his back in 1995 while working in a parachute factory which caused pain in the lower back radiating into the left lower extremity. The examiner noted that history of two surgeries on the low back in 1995. On physical examination, the examiner noted that the veteran was a well-developed, well-nourished, alert, male whose gait was normal. He stood erect without pelvic obliquity or scoliosis. He had tenderness over the scar from his previous surgeries but no tenderness elsewhere over the spinous processes. Range of motion was 55 degrees of flexion; 20 degrees, extension; and 20 degrees right and left lateral bending. Straight leg raising on the right and left produced hamstring tightness at 45 degrees and on the left in also produced low back pain. Rotation of the hips caused a little pain in the lower back. On neurologic examination, deep tendon reflexes were active in the knees and absent in the ankles bilaterally. The examiner could detect no motor weakness or sensory loss in the lower extremities. The veteran could walk on his toes and heals without difficulty. He could squat and arise from a squatting position without assistance. The examiner reviewed the February 1999 x-rays and noted that they revealed a small surgical clip in the soft tissues posterior to the left lamina of L4; a slight narrowing of the L4-5 disc; small osteophytes at the L3-4 level; laminectomy defects on the left at L4 and L5; and some sclerosis of the posterior elements of L5. The doctor's diagnostic impression was (1) degenerative disc disease lumbar spine; (2) status post laminectomy L4 and L5; and (3) osteoarthritis posterior facets L5. The examiner noted that the claims file had been reviewed. The examiner stated that, with the history of intermittent low back pain from 1971 until his reinjury in 1995, the examiner could not ascertain what portion of the injury in 1995 was due to pre-existing pathology and what portion was due to the immediate injury without resorting to shear speculation. The examiner stated that one could not ascertain which of the three diagnoses that had been rendered were causing the current symptomatology and which were due to his injury in 1971 and which were due to his injury in 1995. The Board notes that, on remand, in a June 1999 rating decision, the RO adjudicated the issue of service connection for a herniated nucleus pulposus, L4-5 as secondary to the service-connected lumbosacral strain and denied the claim. The veteran did not appeal and so, in rating the degree of impairment resulting from the service-connected lumbosacral strain, the Board should consider only the disability resulting from that disorder and not disability resulting from the nonservice-connected herniated nucleus pulposus. However, the May 1997 examiner stated that one could not ascertain which symptomatology resulted from the service-connected low back disorder as opposed to the nonservice-connected low back disorder without resorting to shear speculation. Accordingly, the Board will consider all of the current symptoms in evaluating the service-connected lumbosacral strain under the criteria for rating that disorder. Criteria for evaluating service-connected lumbosacral strain is provided in the VA Schedule for Rating Disabilities under Diagnostic Code 5295. That criteria provide a noncompensable rating for lumbosacral strain with slight subjective symptoms only. The next higher or 10 percent rating is provided for lumbosacral strain with characteristic pain on motion. The next higher or 20 percent rating is provided for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. The highest or 40 percent rating may be assigned for severe lumbosacral strain with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in 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. In this case, no examiners -- either before or after the April 1995 on-the-job reinjury to the low back -- described the service-connected lumbosacral strain as "severe". For example, service medical records reflect a finding in April 1971 of "minimal" left lumbosacral tenderness with forward flexion. Moreover, there is no evidence of "listing of whole spine to opposite side", as examiners, including the most recent February 1999 and May 1997 VA examiners, have noted that the veteran stands erect. There has been no evidence of a positive Goldthwaite's sign or marked limitation of forward bending in standing position. There is no evidence of loss of lateral motion with osteo-arthritic changes as examiners have consistently noted lateral motion of 20 to 30 degrees. For example, on October 1989 and February 1999 VA examinations, examiners noted lateral motion to 20 degrees and on the May 1997 examination report, the examiner noted lateral motion to 30 degrees on the right and to 25 degrees on the left. Moreover, there is no evidence of narrowing or irregularity of joint space. In this regard, the Board notes that the height of intervertebral disc spaces and vertebral bodies was noted to be unremarkable on the May 1997 VA x-ray report and the February 1999 VA x-ray report showed satisfactory alignment of the vertebral bodies and noted that vertebral body heights were well maintained. Finally, with regard to abnormal mobility on forced motion, the veteran was shown to walk with a limp on examination report dating two years after the 1995 injury and the 1995 surgeries, but his gait was normal on the most recent February 1999 examination. Accordingly, the Board concludes that criteria for the 40 percent rating under Diagnostic Code 5295 have not been met in this case. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (1999). With regard to the criteria for the 20 percent rating, the medical evidence of record does not show muscle spasm on extreme forward bending or loss of lateral spine motion, unilateral, in standing position. With regard to the former, a private examiner noted muscle spasms of the cervical, but not the lumbar, spine in February 1997. With regard to the latter, as was noted above, examiners since 1989 have noted lateral motion of 20 to 30 degrees on the left and the right. Accordingly, the Board concludes that criteria for the 20 percent rating under Diagnostic Code 5295 have not been met in this case. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (1999). Nevertheless, examiners have noted in this case that lumbosacral strain is manifested by limitation in the range of motion of the spine and that pain is experienced on range of motion testing. The VA Schedule for Rating Disabilities, in addition to providing criteria under Diagnostic Code 5295 for evaluating lumbosacral strain, the schedule also provides criteria for evaluating the severity of limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1999). Under that criteria, a 10 percent rating is provided for slight limitation of motion; a 20 percent rating for moderate limitation of motion; and a 40 percent rating for severe limitation of motion. In addition to pain on motion, examiners since 1989 have noted limitation in the range of motion of the lumbar spine. For example, in contrast to the September 1971 VA examiner who noted full range of motion with pain, the October 1989 VA examiner noted 70 degrees of forward flexion. Similarly, the May 1997 VA examiner noted 75 degrees of flexion. If the body is bent at the waist while in a standing position so that the upper torso is parallel with the floor, the torso forms a 90 degree angle with the legs. Thus, if forward flexion is limited to 70 degrees, range of motion is limited by approximately 20 degrees. Most recently, the February 1999 VA examiner noted range of forward flexion to 55 degrees or approximately a 35 degree limitation of range of motion. Based on this evidence of increasing limitation in the range of motion, the Board concludes that the degree of limitation of motion meets the requirements for a 20 percent rating for moderate limitation of motion of the lumbar spine under Diagnostic Code 5292. ORDER An increased rating to 20 percent, but not higher, is granted, subject to the laws and regulations governing the payment of monetary awards. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals