Citation Nr: 0000587 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 96-08 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to a disability evaluation in excess of 20 percent for service-connected musculoskeletal low back strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Acosta, Counsel INTRODUCTION The veteran served on active duty from August 1963 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1995 rating decision of the Department of Veterans Affairs (VA) Baltimore, Maryland, Regional Office (RO), which denied a disability evaluation in excess of 20 percent for the service-connected low back disorder. It was remanded by the Board in October 1998 for additional development and now it is back at the Board. FINDINGS OF FACT 1. Sufficient evidence necessary for an equitable disposition of the matter on appeal has been obtained and developed by the agency of original jurisdiction. 2. The service-connected low back disorder has not been shown to be currently manifested by severe limitation of motion of the lumbar spine, severe intervertebral disc syndrome, with recurrent attacks and intermittent relief, or severe lumbosacral strain. CONCLUSIONS OF LAW 1. The veteran has stated a well-grounded claim for an increased rating for the service-connected low back disorder, and VA has satisfied its duty to assist him in development of this claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). 2. A disability evaluation in excess of 20 percent for the service-connected low back disorder is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Part 4, Diagnostic Codes 5292, 5293, 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that, in accordance with 38 U.S.C.A. § 5107(a) (West 1991), and Murphy v. Derwinski, 1 Vet. App. 78 (1990), the veteran has presented a well- grounded claim for an increased rating. The facts relevant to this appeal have been properly developed and VA's obligation to assist the veteran in the development of his claim (not to be construed, however, as shifting from the claimant to VA the responsibility to produce necessary evidence, per 38 C.F.R. § 3.159(a) (1999)), has been satisfied. Id. The applicable laws and regulations: Disability evaluations are based upon the average impairment of earning capacity as determined by VA's Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1, Part 4 (1999) (Schedule). Separate rating codes identify the various disabilities. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2 (1999). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 38 C.F.R. § 4.40 (1999); see also DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to abnormal movement (due to a variety of reasons, to include ankylosis, contracted scars, flail joints, etc.), weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, swelling, deformity, atrophy of disuse, as well as instability of station, disturbance of locomotion and interference with sitting, standing and weight-bearing. 38 C.F.R. § 4.45 (1999). 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). The Schedule provides for a 20 percent rating for moderate limitation of the motion of the lumbar spine (Diagnostic Code 5292); moderate intervertebral disc syndrome, with recurring attacks (Diagnostic Code 5293); or lumbosacral strain, with muscle spasm on extreme forward bending and loss of lateral spine motion, unilateral, in the standing position (Diagnostic Code 5295). 38 C.F.R. § 4.71a, Part 4, Diagnostic Codes 5292, 5293 and 5295 (1999). A 40 percent rating is warranted for severe limitation of the motion of the lumbar spine (Diagnostic Code 5292); severe intervertebral disc syndrome, with recurring attacks and only intermittent relief (Diagnostic Code 5293); or 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 (Diagnostic Code 5295). 38 C.F.R. § 4.71a, Part 4, Diagnostic Codes 5292, 5293 and 5295 (1999). The pertinent evidence of record: The veteran is service-connected for lumbosacral strain, with a rating of 20 percent currently in effect under Diagnostic Code 5295 on account of muscle spasm on extreme forward bending and loss of lateral spine motion. The matter on appeal was remanded in October 1998 essentially to have the veteran re-examined and to obtain a medical opinion as to whether the diagnosed arthritis and disc disease are related to the service-connected lumbosacral strain. The development has been accomplished and the claim is now ready for its disposition on appeal. Service medical records reveal that in 1965 herniation of nucleus pulposus, lumbar spine was diagnosed. In November 1965, the veteran was discharged from the hospital to limited duty. He continued to experience low back pain. On examination for separation in May 1966 he stated that he could not bend and touch his toes without bending his knees because there was pain in his spine. On VA examination in January 1967 the diagnosis was obesity with back strain, secondary to it. In a February 1967 rating decision, the RO denied service connection for a back condition based on a finding that the exogenous obesity with back strain, as a constitutional or developmental abnormality, was not a disability under the law. In a May 1995 rating decision, the RO found that the denial in February 1967 constituted clear and unmistakable error and granted service connection and a 20 percent rating for musculoskeletal low back strain, under diagnostic code 5257, effective July 1966. The veteran submitted private medical records from M. D. Stephanides, M.D., dated from 1970 to 1984. He reportedly had a car accident in September 1970. He claimed that he collided with a car that had struck him repeatedly from behind, and had strained his back, causing moderate low back pain. Dr. Stephanides opined that the veteran sustained an acute ligamentous strain of the back. In December 1970, he was permitted to return to full work activities. In July 1971, he reported considerable back pain for a period of four to five days and a myelogram revealed that he had only four lumbar vertebrae. The impression was central herniation of the nucleus pulposus between L4 and S1, causing almost complete obstruction in the spinal canal and interspace narrowing between L4 and S1 with minimal spurs posteriorly. In July 1971, he underwent an excision of a herniated disc at the lumbosacral junction and a spinal fusion at the lumbosacral junction. Private treatment records from Peter Upton, M.D. reveal that the veteran injured his neck in February 1989 and in December 1989 he underwent a C5-C6 port on the left side. Herniated disc, C5-C6, left was diagnosed. On VA examination in July 1995, the veteran reported that after he injured his lower back falling off a telephone pole during service, he was in and out of hospitals with a ruptured disc. After service he continued to have back problems, but entered the police force and was injured while driving a car that was rear-ended. He indicated that he ruptured the L4 disc and was told at that time, by a doctor, that the L5-S1 had fused together as a result of a prior injury. It was noted that magnetic resonance imaging (MRIs) of the neck and lower spine had been taken in December and February at the VA Medical Center (VAMC) in Baltimore. He was employed as a private investigator. The veteran's complaints included pain in the lower back and an inability to run. On physical examination, he walked slowly supporting himself with a cane. He was bending over and did not have a limp. There was loss of lumbar lordosis. There was tenderness over the sacroiliac joints, bilaterally, more on the left than the right. There was no motion of the lumbar spine when the veteran as asked to bend forward or hyperextend. Normal position when standing was 20 degrees forward flexion of the trunk. He would not extend his trunk from that point by 10 degrees. Nor would he forward flex more than 10 degrees. Lateral rotation and lateral rotation were also 0 degrees. Examination of the lower extremities revealed normal objective findings although the veteran stated that the outer aspect of his right thigh was numb at times and there was a burning sensation, but not at present. It was impossible to examine deep tendon reflexes as the veteran kept all of his joints very stiff. Any passive straight leg raising caused allegedly severe pain in the lower back. Status post lumbar diskectomy for a degenerative osteoarthritis and degenerative disc disease was diagnosed. VA outpatient treatment records dated from 1994 to 1996 showed occasional treatment for complaints of low back pain. At a December 1997 RO hearing, the veteran offered testimony in support of his claim for an increased rating for the service-connected lumbosacral strain. The testimony included statements from the veteran describing the history of the service-connected disability and restating his belief that a rating in excess of 20 percent is warranted due to the constant pain and muscle spasms, which, in his opinion, are severely disabling. He was still employed as a private investigator and regulated his work. The transcript of this hearing is of record and has been carefully reviewed. On VA examination in February 1998 the examiner indicated that it was unlikely that all of the veteran's current symptomatology dated back to his service-connected injury in the 1960s and that the September 1970 accident seemed to have significantly increased his problem. The examiner opined that while the veteran did have problems with the lumbosacral spine dating back to service, his symptoms had intensified since that point in a manner unrelated to the original injury. According to the report of a February 1999 VA medical examination, the veteran injured his back during service in 1964 when he fell while climbing a telephone pole. He saw a doctor, but there was no specific diagnosis. He was treated with traction and improved to some degree, but his back pain persisted. In September 1970 (after service), he re-injured his back when he was involved in a high-speed motor vehicle accident and his car was struck from behind. In July 1971, he underwent a laminectomy and fusion of the L4-S1 and he had had, since then, constant low back pain across the lower back, with frequent radiation down both posterior thighs, associated with burning and numbness, the pain intensified by prolonged sitting, but eased by rest. The veteran said that he took Tylenol 3 with codeine, with only minimal relief, and that he had been forced to avoid all but sedentary activity. The examiner reviewed the claims folder and described the veteran as a well-developed, but overweight, individual in no distress. There was an eight-inch well-healed laminectomy incision on the lumbosacral spine area, but no tenderness or paraspinal spasm. Straight leg raising was negative, bilaterally. There were 20 degrees of forward flexion, 10 degrees of backward extension, 30 degrees of lateral flexion, bilaterally, and 25 degrees of rotation, also bilaterally. The veteran claimed pain on all movement and inability to move beyond the above limits but there was no objective evidence of either. On examination, the veteran arose and stood slowly and wore a back brace, which he removed for the examination. He used a cane, although he did not appear to require it. His gait was slow and cautious, but without specific limp. He refused to hop, squat and walk on his heels or toes. He stood and ambulated with the lumbosacral spine flexed at 20 degrees. The neurological examination, including sensation, motor function, and deep tendon reflexes, was normal. The impression was a chronic strain of the lumbosacral spine, status post laminectomy and fusion, L4-S1, and it was noted that the veteran's current back problem was no doubt related to both his service-connected 1964 injury and his subsequent motor vehicle accident in 1970 but that, unfortunately, it was not possible to be certain exactly what percentage of the pain is related to each incident. The veteran was noted to currently be in pain, so there would be no additional limits of range of motion or other objective findings secondary to pain, and the marked limit of range of motion on physical exam was not substantiated by objective findings. Analysis: As clearly shown above, a rating exceeding 20 percent is not warranted in the present case because the record does not show that there is severe limitation of the motion of the lumbar spine, severe intervertebral disc syndrome, with recurring attacks and intermittent relief, or severe lumbosacral strain. The complaints of at least a marked limitation of motion, with pain and inability to move beyond certain points, have not been objectively confirmed, as it has been noted that there is no objective evidence confirming them. Also, while there may be evidence of arthritis and maybe also evidence of a disc disease in the record, the fact remains that, even if both diseases were considered service- connected (which they are not), they have not been shown to produce sufficient disability so as to warrant a rating higher than the current 20 percent at this time. The more recent clinical findings show that the veteran had 20 degrees of forward flexion; 10 degrees of backward extension; 30 degrees of lateral flexion, bilaterally; and 25 degrees of rotation, bilaterally. The 1999 VA examiner found that the marked limit of range of motion on physical exam was not substantiated by objective findings. Thus, this evidence does not show that motion is severely limited to support a 40 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1999). With respect to Diagnostic Code 5293 (intervertebral disc syndrome), despite the veteran's complaints, neurological examination, including sensation, motor function, and deep tendon reflexes, was normal on VA examinations in 1995 and 1999. Therefore, the medical evidence does not demonstrate that the veteran's low back disability is currently manifested by symptomatology reflecting a severe disability pursuant to Diagnostic Code 5293. The Board has also considered assigning the veteran an increased disability evaluation under Diagnostic Code 5295; however, there have been no findings of listing of the whole spine to the opposite side, a positive Goldthwait's sign, marked limitation of motion, or abnormal mobility on forced motion so as to warrant a 40 percent rating for lumbosacral strain. The Board concludes that the 20 percent rating assigned is appropriate for these manifestations and that the findings do not more nearly approximate the next higher, or 40 percent, rating for a disability of the lumbar spine. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5292, 5293, 5295 (1999). The lay contentions offered in conjunction with this claim for increased compensation benefits are outweighed by the medical evidence cited above which has been found more probative to the issue on appeal and therefore, such contentions cannot serve to establish a finding of increased disability due to the service-connected low back disorder. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). The Board has considered the various other provisions of 38 C.F.R. Parts 3 and 4 in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991), but finds that they do not provide a basis upon which to grant an evaluation higher than 20 percent for the service-connected low back disability. With regard to establishing loss of function due to pain, it is necessary that complaints be supported by underlying evidence of adequate pathology. See 38 C.F.R. § 4.40. The Board finds that the effects of pain reasonably shown to be due to the veteran's service-connected low back disability are, however, already contemplated by the 20 percent rating. On examination in 1999, the examiner noted that the veteran was in pain and that there would be no additional limits of range of motion or other objective findings secondary to pain. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1999). There is no indication in the current record that pain due to disability of the lumbar spine causes functional loss greater than that contemplated by the currently assigned 20 percent evaluation. 38 C.F.R. §§ 4.40, 4.45 and DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board further concludes that the medical evidence in this case was adequately detailed for rating purposes including consideration of the criteria in sections 4.40 and 4.45, which provide "guidance for determining ratings under . . . diagnostic codes assessing musculoskeletal function." Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997) (emphasis added); 38 C.F.R. §§ 4.40, 4.45 (1999). For example, in the 1999 VA examination report, the examiners provided measurements of range of motion, and noted the veteran's complaints of pain. Remand for further development of the medical evidence is not warranted. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided); cf. Brady v. Brown, 4 Vet. App. 203, 207 (1993) (a remand is unnecessary even where there is error on the part of VA, where such error was not ultimately prejudicial to the veteran's claim). Accordingly, for the reasons discussed above, the currently assigned rating for the veteran's low back disability adequately reflects the level of impairment pursuant to the schedular criteria. The preponderance of the evidence is against the claim for an increased rating for service- connected musculoskeletal low back strain. ORDER A disability evaluation in excess of 20 percent for the service-connected musculoskeletal low back strain is denied. P.M. DILORENZO Acting Member, Board of Veterans' Appeals