Citation Nr: 0000784 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 97-29 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an increased rating for a low back disorder, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Wm. Kenan Torrans, Associate Counsel INTRODUCTION The veteran served on active duty from October 1986 to January 1990. This matter arises from a July 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied the veteran's original claim for entitlement to an evaluation in excess of 10 percent for a low back disorder. The veteran filed a timely appeal, but before the case came before the Board of Veterans' Appeals (Board), an increased rating of 20 percent was granted by an August 1999 rating decision. The veteran now contends that the severity of her low back disorder warrants assignment of a disability evaluation in excess of 20 percent, given that a 20 percent rating is not the highest available under the relevant rating criteria. See AB v. Brown, 6 Vet. App 35 (1993). The case has been referred to the Board for resolution. As a preliminary matter, the Board observes that in her substantive appeal, the veteran appears to have raised an additional issue of entitlement to service connection for an upper back disorder. Inasmuch as this issue has not been addressed by the RO, it is referred back to the RO for all appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable resolution of the issue on appeal has been obtained by the RO. 2. The veteran's lumbosacral spine is not shown to be ankylosed, and her low back disorder is objectively shown to be productive of more than moderate limitation of motion with symptomatology most consistent with severe, recurring attacks of intervertebral disc syndrome with intermittent relief. CONCLUSION OF LAW The criteria for assignment of a 40 percent evaluation for the veteran's low back disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1- 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5292, 5293 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The preliminary question before the Board is whether the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the VA has properly assisted her in the development of her claim. A mere allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 628, 632 (1992). Accordingly, the Board finds that the veteran has submitted a well-grounded claim. Once a claimant has submitted a well-grounded claim, the VA has a duty to assist her in developing facts which are pertinent to that claim. See 38 U.S.C.A. § 5107(a). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for an equitable resolution of the issue on appeal has been obtained. The evidence includes the veteran's service medical records, records of treatment following service, reports of VA rating examinations, and statements submitted by the veteran and her representative in her behalf. The Board is not aware of any additional evidence which is available in connection with the present appeal. Therefore, no further assistance to the veteran regarding the development of evidence is required. See 38 U.S.C.A. § 5107(a); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). Disability evaluations are determined by evaluating the extent to which the veteran's service-connected disability affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999). In addition, where entitlement to service connection has already been established, and an increase in a disability evaluation is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, disability of the musculoskeletal system is primarily the inability, due to damage or infection of 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 examinations upon which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. The functional loss may be due to the absence of all or part of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. §§ 4.40, 4.45 (1999). Under DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995), the Board, in addition to applying the regular schedular criteria, may consider granting a higher evaluation in certain cases in which functional loss due to pain is demonstrated. Historically, service connection for a low back disorder, initially characterized as mechanical low back pain, was granted by a March 1990 rating decision, and a 10 percent evaluation was assigned, effective from January 27, 1990. In April 1996, the veteran filed a claim for an increased rating for her low back disorder, in which she contended that the severity of her service-connected disability had increased. Her claim was denied by a July 1996 rating decision, and this appeal followed. During the course of this appeal, an increased rating of 20 percent, effective from April 11, 1996, was granted by an August 1999 rating decision. The veteran now asserts that the severity of her low back disability warrants assignment of an evaluation in excess of 20 percent, inasmuch as a 20 percent rating is not the highest rating available under the applicable evaluative criteria. See generally AB v. Brown, 6 Vet. App. 35 (1993). VA treatment records dating from August 1990 through May 1996 show that the veteran was seen for pain in the lumbosacral area. She complained of experiencing severe pain causing difficulty in walking, breathing, or lifting her nine-month old child. X-rays were taken which showed that the veteran had mild scoliosis of the lumbar spine. No spondylolysis or spondylolisthesis were noted, and the pedicles were intact. Disc spaces were preserved, and no significant degenerative changes were seen. In March 1996, however, the veteran was noted to have degenerative changes in the posterior elements of the facet joints, but no disc herniation or nerve root compression was found. The veteran underwent a VA rating examination in May 1996. The report of that examination shows that she complained of experiencing severe pain in the lumbosacral area periodically in the morning and after walking. In addition, she complained of experiencing dull pain in the lumbosacral area constantly. Objectively, the veteran was found to have tenderness on percussion at the lumbosacral area, and pain in the lumbosacral area upon straight leg raising. There were no postural abnormalities noted, and the musculature of her back was characterized as normal. The veteran had 70 degrees of forward flexion with pain, 20 degrees of backward extension with pain, 20 degrees of left and right lateral flexion, and 20 degrees of left and right rotation. The examiner also noted that the veteran appeared to have sciatica. In addition, he noted that per the results of an MRI examination conducted in April 1996, the veteran had a posterior annular tear at L5-S1 with disc protrusion, and moderate canal stenosis. He concluded with a diagnosis of low back pain, a posterior annular tear at L5-S1 with disc protrusion, and moderate canal stenosis. X-ray results showed that the veteran had mild scoliosis. The veteran underwent an additional VA rating examination in July 1999, and complained of pain, stiffness, fatigability, lack of endurance, and constant pain and stiffness in both the cervical and lumbosacral spine since approximately 1987. The veteran also reported that she was seen regularly by an orthopedist and received Vicodin, Lidocaine, and Cortisone injections to the lumbar spine. The examiner indicated that pain was constant in the lumbosacral spine, but that it was also very severe on motion, such as bending. The veteran did not require the use of a back brace, cane, or other assistance in order to ambulate. The examiner observed that pain was constant, but increased on movement. The veteran had 80 degrees of flexion, 25 degrees of extension with pain at 15 degrees, lateral bending of 25 degrees with pain at 20 degrees, and 25 degrees of rotation with pain at 20 degrees. In addition, the veteran had pain in the lumbosacral area with leg raising at 25 degrees, which the examiner appeared to characterize as mild sciatica. A February 1999 MRI of the lumbosacral spine disclosed mild degenerative changes, most prominently at L5-S1. A mild disc bulge at L4-5 was also noted in addition to a diffuse disc bulge at L5-S1 with superimposed central protrusion. No significant changes with the previous examination were found. The examiner concluded with diagnoses of a posterior annular tear at L5-S1 with disc protrusion; moderate spinal canal stenosis; mild scoliosis of the lumbosacral and thoracic area; sciatica; and mild degenerative changes of the lumbosacral spine. The Board has evaluated the above medical evidence, and after resolving all reasonable doubt in favor of the veteran, concludes that the evidence supports assignment of a 40 percent evaluation for her low back disorder, particularly in light of the debilitating effects of pain on motion and functional limitation due to pain. Under 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1999), slight limitation of motion of the lumbar spine warrants assignment of a 10 percent evaluation, moderate limitation of motion warrants assignment of a 20 percent evaluation, and a 40 percent evaluation is contemplated for severe limitation of motion. The Board has reviewed the reports of the May 1996 and July 1999 VA rating examinations, and finds that the veteran's ranges of motion noted there show what would objectively be characterized as not more than a moderate limitation of motion. In essence those examination reports show that the veteran lost approximately 15 degrees of forward flexion, 10 degrees of backward extension and bilateral rotation. This assumes that normal forward flexion is to 95 degrees, normal backwards extension is 35 degrees, and that rotation is 35 degrees in either direction. In any event, the veteran's loss of range of motion, is not objectively shown to be "severe," even taking the effects of pain and weakness into consideration. Given the clinical findings of an annular tear at L5-S1 with disc protrusion, moderate canal stenosis, mild degenerative changes, and a mild disc bulge at L4-5, and mild sciatica, the Board finds that the veteran's symptoms are most consistent with the criteria contemplated for evaluating intervertebral disc syndrome. Under 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1999), moderate, recurring attacks of intervertebral disc syndrome warrant assignment of a 20 percent evaluation. A 40 percent evaluation is contemplated for severe, recurrent attacks of intervertebral disc syndrome with intermittent relief. For assignment of a 60 percent rating under Diagnostic Code 5293, there must be a showing of pronounced symptoms, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. Id. As noted, the veteran was found to experience near-constant pain in her lumbosacral spine, and experienced moderate limitation of motion, due largely to pain. Further, her pain was found to be increased on movement. The Board finds that taking the degree of functional impairment due to pain and weakness into consideration, the veteran's objectively demonstrated symptomatology is consistent with the criteria for a 40 percent evaluation under Diagnostic Code 5293. Given the constant nature of her pain, with the exacerbation upon movement, her low back disorder appears to be commensurate with severe, recurrent attacks of intervertebral disc syndrome. The episodes of exacerbations due to movement are demonstrative of severe, recurrent attacks, with intermittent relief when the veteran avoids extreme forward bending or backwards extension. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. However, the Board has also considered whether a 60 percent rating under Diagnostic Code 5293 is warranted, but concludes that the preponderance of the evidence is against assignment of a 60 percent evaluation. The Board recognizes that the veteran experiences what has been diagnosed as mild sciatic neuropathy and a constant, dull ache in her lumbosacral spine. However, the Board finds that the severity of these symptoms are not objectively shown to be sufficient to meet the criteria for a 60 percent rating under Diagnostic Code 5293. The veteran's musculature is described as normal, and she has not been found to experience any muscle spasm on forward bending, and she was not found to require the use of a cane or back brace to ambulate or function. Further, the Board notes that her symptoms appear to be most severe in the early morning hours, as indicated by her statements to that effect, and that such implies some relief in the afternoon and evening hours. Accordingly, the Board finds that the evidence supports assignment of a 40 percent evaluation under Diagnostic Code 5293, but that the preponderance of the evidence is against assignment of an evaluation in excess of 40 percent under any other diagnostic code. The veteran is reminded, however, that should her disability picture change, she may apply at any time for an increase in her assigned disability rating. See generally 38 C.F.R. § 4.1. In addition, the potential application of the various provisions of Title 38 of the Code of Federal Regulations (1999) has been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Here, there has been no showing that the disability under consideration has caused marked interference with employment, has necessitated frequent periods of hospitalization, or otherwise renders impracticable the regular schedular standards. The Board acknowledges that the veteran receives regular injections in her lumbar spine to relieve her symptoms, and that she is necessarily restricted in her ability to lift heavy objects. However, there is no showing that the veteran is unable to obtain or retain gainful employment as a result of her low back disorder. In the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (1999) is not warranted. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Subject to the applicable laws and regulations governing the award of monetary benefits, a 40 percent evaluation for the veteran's low back disorder is granted. WARREN W. RICE, JR. Member, Board of Veterans' Appeals