BVA9506052 DOCKET NO. 93-11 946 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased rating for chronic lumbosacral strain with disc space narrowing, rated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States INTRODUCTION The veteran had active service from June 1984 to September 1991. CONTENTIONS OF APPELLANT ON APPEAL The veteran agues that he does, in fact, have muscle spasm at various times on standing or sitting; that private medical evaluation revealed a pedicle defect or spondylolysis; and that he can no longer pursue a career as a pilot because of back pain and spasm. The representative argues that the private medical examination, which was considered in rating the disability, is incomplete because the physician has not been contacted to determine if the recommended CT scan has been performed; that the disability should be rated under the schedular criteria for intervertebral disc syndrome; and that if an increased rating is not granted, the case should be remanded to obtain additional private medical records. 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(s). 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 a rating greater than 10 percent for the service connected low back disability. FINDINGS OF FACT 1. All evidence necessary for an equitable determination of the issue on appeal is before the Board. 2. The service connected low back disability is manifested principally by pain, including pain on motion, tenderness and no more than slight limitation of motion of the lumbar spine. 3. The service connected low back disability does not result in muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in the standing position. 4. The case does not present an exceptional or unusual disability picture as renders impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for a rating greater than 10 percent for the service connected low back disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. 3.321(b), 4.7, 4.40, 4.45, 4.59, Part 4, Diagnostic Codes 5292, 5295 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION We find the veteran's claim to be plausible and, therefore, well grounded within the meaning of 38 U.S.C.A. § 5107(a). We are also satisfied that all relevant facts have been properly developed, and VA has satisfied its duty to assist the veteran as mandated by 38 U.S.C.A. § 5107(a). In this regard, it has been argued that because the results of a CT scan recommended by M. Brown, M.D., the physician who examined the veteran in early 1993, have not been obtained, the record is inadequate for rating purposes. At this point, the Board is prepared to consider all signs and symptoms of the low back in rating the service connected disability, regardless of whether the diagnosis is pedicle defect or spondylolysis or low back strain with disc space narrowing. We cannot see that any advantage to the veteran would accrue with respect to that rating warranted if the results of the CT scan showed either the pedicle defect or the spondylolysis, the alternate diagnoses proposed by Dr. Brown. The representative apparently believes that such a CT scan might reveal the presence of intervertebral disc syndrome, but there is simply no clinical evidence of the neurological involvement associated with disc disease. See Diagnostic Code 5293. We find the medical record sufficient for rating purposes. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulation include 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history with emphasis placed upon the limitation of activity imposed by the disabling condition; 38 C.F.R. § 4.2, which requires that medical reports be interpreted in light of the whole record history, and that each disability be considered from the point of view of the veteran working or seeking work; 38 C.F.R. § 4.10, which provides that in cases of functional impairment, examiners must provide a description of the effects of the disability upon the person's ordinary activity; 38 C.F.R. § 4.40, which requires consideration of functional disability due to pain; 38 C.F.R. 4.45, which requires that factors in rating joint disability include less movement than normal, weakened movement, pain on movement, and interference with sitting, standing and weight-bearing; and 38 C.F.R. § 4.59, which requires that in rating any form of arthritis, painful motion is an important factor. In this case, the service connected disability has been rated under Diagnostic Code 5295, lumbosacral strain, which provides for a 10 percent rating where there is characteristic pain on motion, and a 20 percent rating where there is muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in the standing position. The Board is also of the opinion that the disability should be considered under Diagnostic Code 5292, limitation of motion of the lumbar spine, which provides for a 10 percent rating where there is slight limitation of motion, and a 20 percent rating where there is moderate limitation of motion. The record shows that the veteran entered the service with history of low back pain. During service, he was treated for low back pain. On VA examination in September 1992, he reported that he could not sit for more than thirty minutes or do prolonged standing without experiencing low back pain; that at times the pain became intense and he had problems walking; that he couldn't participate in sports and had to avoid lifting or bending; and that he was unable to obtain work as a pilot because of the history of low back pain. On examination, the veteran's gait and posture were normal. He dressed and undressed without difficulty. He got off and on the examining table with ease. There was no paraspinous muscle spasm. There was tenderness bilaterally. There was pain in the lumbosacral spine, especially on left lateral flexion. Examination of the musculature of the back revealed no spasm. Forward flexion of the back was to 75 degrees. Lateral flexion was to 40 degrees bilaterally. Rotation was to 30 degrees bilaterally. There was objective evidence of pain on lateral flexion. There was no neurological involvement. The diagnosis was chronic lumbosacral strain with mild disc space narrowing. In January 1993, the veteran was examined by Dr. Brown. His complaints included progressively worsening back pain over the past two years. He had increased pain in the left side with radiation into the left thigh. His activities were presently limited. On examination, he had pain on extension. Flexion was to nearly 90 degrees; flexion past 10 degrees was painful. Tests of neurologic impairment were negative. The diagnosis was pedicle defect or spondylolysis. It was recommended that a CT scan be performed to definitely diagnose the condition before starting treatment. The clinical evidence shows some limitation of motion of the lumbar spine, but does not show that any such limitation of motion is more than slight in degree. Specifically, forward flexion reportedly varied from 75 degrees to 90 degrees (with pain after 10 degrees), where average normal forward flexion is 90 degrees. Some loss of extension and rotation were also observed, where average normal extension is to 50 degrees and average normal rotation is to 55 degrees. Overall, we do not find this limitation of lumbar spine motion to be more than slight, and, therefore, a rating greater than 10 percent is not warranted under Diagnostic Code 5292. Moreover, the clinical evidence does not show unilateral loss of lateral spine motion, one of the criteria for a 20 percent rating under Diagnostic Code 5295. As to the other criteria, the veteran has argued that muscle spasm is present, but neither Dr. Brown nor the VA examiner, both of whom observed the veteran perform extreme forward bending, referred to muscle spasm. In addition, the VA examination report states specifically that muscle spasm was not shown. In short, there is no clinical documentation of muscle spasm on extreme forward bending. The veteran argues that muscle spasms do occur, but we do not consider his argument probative. In the Board's judgment, whether or not there is muscle spasm on extreme forward bending is a matter for medical interpretation, and is not a matter within the competency of a lay person. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). We conclude that the criteria for a rating greater than 10 percent under Diagnostic Code 5295 are not met. In concluding that an increased schedular rating is not warranted, the Board has taken into consideration all of the pertinent regulations, including those summarized previously. That is, we have considered limitation of activity, functional impairment, including limitation of motion, and pain on movement. We concede, as is reflected in the medical record, that there is significant low back pain, including pain on movement. However, the fact remains that notwithstanding the complaints of pain, the veteran was observed to dress and undress, and to climb on and off an examining table, without difficulty. He also shows no more that slight loss of lumbar spine motion. The complaints of pain are not supported by adequate pathology in the medical record necessary to support a higher schedular rating. 38 C.F.R. § 3.321(b) provides that in the exceptional case, where the schedular evaluations are found to be inadequate, an extraschedular evaluation may be assigned commensurate with the average earning capacity impairment due exclusively to the service connected disability. A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards warrants an extraschedular rating. In this case, the veteran has argued that the back disability precludes employment as a pilot. The record does not show frequent periods of hospitalization due to the back disability, and, in addition, in our judgment, clinical findings are not consistent with marked interference with employment. Again, neither muscle spasm nor more than slight loss of back motion is shown. Also, the veteran was not prevented from performing some activities by the back disability. ORDER Entitlement to an increased rating for chronic lumbosacral strain with disc space narrowing is denied. NANCY I. PHILLIPS 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.