Citation Nr: 0002298	
Decision Date: 01/28/00    Archive Date: 02/02/00

DOCKET NO.  96-40 123	)	DATE
	)
	)


On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Roanoke, Virginia




THE ISSUE

Entitlement to an increased rating for lumbosacral strain 
with arthritis, currently evaluated as 20 percent disabling.




REPRESENTATION

Appellant represented by:	Navy Mutual Aid Association



INTRODUCTION

The veteran had active military service from August 31, 1970, 
to March 2, 1984, and from March 16, 1984, to August 31, 
1994.

This matter comes before the Board of Veterans' Appeals 
(Board) from an April 1996 rating decision of the Roanoke, 
Virginia RO which reduced a 20 percent rating for the 
veteran's service-connected lumbosacral strain with arthritis 
to 10 percent.  

The veteran's notice of disagreement with the reduction was 
received in May 1996.  A request was specifically made for an 
explanation of the bases for the previous assignment of a 20 
percent rating as well as for the reduced rating.  A 
statement of the case was issued in August 1996 wherein the 
issue was characterized as entitlement to an increased 
rating.  Therefore, given this characterization, and the 
ruling of AB v. Brown, 6 Vet.App. 35, 38 (1993) (a claimant 
is presumed to be seeking the maximum benefit allowed by law 
and regulations), the Board addressed both the propriety of 
the reduction and the question of whether an increased rating 
was warranted in a September 1997 decision.  The 20 percent 
rating was restored, and the increased rating question was 
remanded for additional development.  


FINDING OF FACT

The veteran has osteo-arthritic changes and disc space 
irregularities with limitation of motion and limitation of 
function that equate to severe lumbosacral strain.


CONCLUSION OF LAW

An increased (40 percent) rating for lumbosacral strain with 
arthritis is warranted.  38 U.S.C.A. §§ 1155, 5107 (West 
1991); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a (Diagnostic Codes 
5003, 5292, 5295) (1999).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Disability evaluations are determined by the application of a 
schedule of ratings that is based, as far as can practicably 
be determined, on the average impairment of earning capacity.  
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999).  Each 
service-connected disability is rated on the basis of 
specific criteria identified by diagnostic codes.  38 C.F.R. 
§ 4.27 (1999).  Although regulations require that a 
disability be viewed in relation to its recorded history, 
38 C.F.R. §§ 4.1, 4.2 (1999), where entitlement to 
compensation has already been established, and an increase in 
a disability rating is at issue, it is the present level of 
disability which is of primary concern.  Francisco v. Brown, 
7 Vet. App. 55 (1994).  Additionally, where there is a 
question as to which of two evaluations should be applied, 
the higher evaluation is to be assigned if the disability 
picture more nearly approximates the criteria for the higher 
rating.  38 C.F.R. § 4.7 (1999).

Arthritis is rated on the basis of limitation of motion of 
the affected part.  Diagnostic Code 5003.  Limitation of 
motion of the lumbar spine which is "moderate" in degree 
warrants a 20 percent rating; limitation of motion of the 
lumbar spine which is "severe" warrants a 40 percent 
rating.  Diagnostic Code 5292.  Lumbosacral strain with 
muscle spasm on extreme forward bending, loss of lateral 
spine motion warrants a 20 percent rating; severe lumbosacral 
strain, with listing of the whole spine to the opposite side, 
positive Goldthwaite's sign, marked limitation of forward 
bending in a 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 warrants a 40 percent rating.  Diagnostic Code 
5295.

In the veteran's case, at a November 1994 VA examination, he 
reported constant pain in his lower back when he sat at his 
desk for more than two hours.  He took 

Motrin for relief from pain and was treated with physical 
therapy.  Examination revealed excellent muscle development 
of the lumbar spine.  However, forward flexion was limited to 
40 degrees, beyond which he reported having pain.  Backward 
extension as well as lateral and side bending were normal.  
He was able to walk on his heels and toes and was able to 
squat and arise without problems.  X-rays showed degenerative 
lumbar spondylosis.  Chronic lumbosacral strain with 
degenerative lumbar spondylosis was diagnosed.  

At an October 1995 VA examination, the veteran again reported 
low back pain, and difficulty when bending, which caused 
pain.  He took Motrin for the pain and regularly performed 
exercises.  He indicated that the pain was often so severe 
that he was unable to have sexual intercourse with his wife.  
The examiner reported that the veteran's gait was normal and 
his posture was erect.  He had excellent muscle development.  
Examination showed that the veteran was able to forward flex 
to touch his toes with his fingertips.  Hyperextension, 
lateral, and side bending were normal, and muscle strength in 
the lower extremities was noted to be excellent.  Lumbosacral 
strain with minimal lumbar spondylosis was diagnosed.  

A May 1996 service department outpatient record shows that 
the veteran was seen for a flare-up of his chronic back pain.  
Examination revealed decreased flexion to 90 degrees or less, 
as well as paraspinal tenderness at L4.  Lateral bending and 
extension were good.  

In statements provided to the RO, the veteran reported that 
he sought chiropractic care for his back pain.  He also noted 
that he continued to have flare-ups of his back pain which 
interfered with his sleep and his ability to put on his 
shoes.  

At a July 1998 VA examination, the veteran reported having 
frequent flare-ups and having problems applying his shoes.  
He reported that motion during sex caused back pain.  He also 
reported having pain with repetitive bending or whenever he 
attempted any heavy lifting.  Prolonged standing or sitting 
also caused difficulties.  

On examination, he was able to flex forward to 40 degrees.  
He complained of pain with an attempt to flex farther.  
Extension was performed to 10 degrees with complaints of 
pain.  Lateral bending was performed to 20 degrees in both 
planes without any significant discomfort.  He could toe walk 
and deep tendon reflexes were 2-plus and symmetrical at the 
patellae and Achilles.  There were no deficits in strength 
and straight leg raising was negative for sciatica.  There 
was no spasm; however, there was tenderness on palpation of 
the lower lumbar muscles along the posterior iliac crest.  
Degenerative disc changes and degenerative facet changes were 
noted on x-rays.  The clinical impression included a comment 
to the effect that the veteran restricted his activities in 
order to limit his pain.

Although the evidence of record shows that the veteran 
generally has not experienced problems with lateral bending, 
he has definite degenerative changes, including irregularity 
of joint spaces.  He also has limited flexion and no 
extension without a complaint of pain.  Consequently, with 
application of § 4.7, the Board finds that the veteran's 
symptoms more nearly approximate the criteria for a 40 
percent rating under Diagnostic Code 5295.  This is 
especially so given the evidence that indicates that the 
veteran has frequent flare-ups and experiences functional 
losses due to pain such that he has difficulty putting on his 
shoes, or sitting or standing for any extended period.  While 
the VA examiner who conducted the July 1998 examination did 
not provide findings in accordance with the Board's 1997 
remand instructions, especially with respect to the 
impairment caused by pain or flare-ups, see §§ 4.40, 4.45, 
the Board nevertheless finds that the difficulties caused by 
the veteran's low back pain may be equated with severe 
lumbosacral strain or severe limitation of motion, whether 
the veteran's claim is considered under Diagnostic Code 5292 
or Diagnostic Code 5295.  Since the 40 percent rating is the 
highest schedular rating assignable under either Diagnostic 
Code, and because §§ 4.40, 4.45 do not require analysis 
beyond the highest assignable schedular rating for the 
disability at issue, see Johnston v. Brown, 10 Vet. App. 80, 
85 (1997), the Board finds that a second remand in this case 
is not necessary.  



ORDER

An increased (40 percent) rating for a lumbosacral strain 
with arthritis is granted, subject to the laws and 
regulations governing the award of monetary benefits.



		
	MARK F. HALSEY
	Member, Board of Veterans' Appeals