Citation Nr: 0003912 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 97-07 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an evaluation greater than 40 percent for degenerative joint disease of the lumbar spine at L4-S1. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. M. Rogers, Associate Counsel INTRODUCTION The veteran had active duty in the Air Force from May 1980 to November 1984. This matter comes to the Board of Veterans' Appeals (Board) from an October 1996 rating decision of the Department of Veterans Affairs (VA) Denver, Colorado Regional Office (RO). In that decision the RO granted a disability rating of ten percent for degenerative joint disease of the lumbar spine at L4-S1 from October 1995. The veteran perfected an appeal of the October 1996 decision. The Board notes that in a June 1998 rating action, the RO increased the disability evaluation of the veteran's degenerative joint disease of the lumbar spine at L4-S1 from a 10 percent rating to a 20 percent rating from October 1995. The Board also notes that in a September 1999 rating action, the RO increased the disability evaluation of the veteran's degenerative joint disease of the lumbar spine at L4-S1 from a 20 percent rating to a 40 percent rating from October 1995. The current award is less than the maximum evaluation available and consequently the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The issues of increased (compensable) evaluations for defective hearing of the right ear, tinea cruris, and entrapment, interosseous nerve of the right elbow were denied in September 1999. There is no notice of disagreement regarding these matters and the Board does not have jurisdiction of them. FINDINGS OF FACT 1. All evidence necessary and available for an equitable resolution of the veteran's increased rating claim has been obtained. 2. The degenerative joint disease of the lumbosacral spine (L4-S1) is productive of severe pain and loss of the range of motion, but does not approximate pronounced intervertebral disc disease or ankylosis with objective evidence of neurological findings appropriate to site of diseased disc. CONCLUSION OF LAW 1. The criteria for a rating in excess of 40 percent for degenerative joint disease of the lumbar spine at L4-S1 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5292 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran's service medical records show treatment for low back pain on several occasions. A May 1985 VA examination shows a diagnosis of mild degenerative arthritis of the lumbar spine, intermittently symptomatic. There were no findings of associated neurological deficits. It was noted that the low back disorder will progress with time. An x-ray report of the lumbar spine revealed degenerative arthritis of the lumbar spine from L4-L5 vertebral bodies. During a June 1996 VA examination, the veteran reported that he had a left hemiparesis in 1992. He complained that after walking he has back pain, but no radiation down the legs. Upon examination of the lumbar spine, the veteran's flexion was limited to 80 degrees, extension was full to 35 degrees, lateral flexion was to 40 degrees on the left, and limited to 30 degrees on the right. It was noted that this was primarily due to muscle weakness and the left hemiparesis and not due to the inability to passively flex the spine. The veteran's spine rotation was to 35 degrees. There was muscle atrophy and spasticity, straight leg raising was negative at 80 degrees, and deep tendon reflexes were hyperactive on the left side. There was no lumbar tenderness or spasms noted. In August 1996 the veteran received treatment at VA Medical Center (MC) for complaints of low back pain. It was noted that the veteran's range of motion was within normal limits and there was no palpable tenderness in the back. The veteran's straight leg raising was negative and there was no evidence of radiculopathy. In January 1997 the veteran stated that when he walks and bends over he feels that there is a definite deformity of his spine. During a June 1997 VA examination, the veteran complained of pain in the lumbar spine at L3 through L5. The veteran reported experiencing pain that was sharp and non-radiating. He also stated that he was suffering from a decreased range of motion, weakness, and during damp weather he had flare- ups. He also reported that he has two flare-ups per week. Upon physical examination, there was no gross deformity of the lumbosacral spine. There was tenderness to moderate palpation at L2 through L4 and no paravertebral tenderness or spasm was appreciated. The veteran's range of motion sitting was forward flexion to 55 degrees, backward extension to 25 degrees, left lateral rotation to 30 degrees, right lateral rotation to 30 degrees, left lateral extension to 25 degrees, and right lateral flexion to 30 degrees. The veteran's range of motion standing was forward flexion to 75 degrees, backward extension to 30 degrees, left rotation to 30 degrees, right rotation to 30 degrees, left lateral flexion to 25 degrees, and right lateral rotation to 30 degrees. The range of motion exercises showed weakened movement, easy fatigability, and no incoordination. With forward flexion and left lateral flexion and rotation, the veteran exhibited moderate pain with motion as evidenced by facial grimacing. It was also noted that there would be an additional loss in range of motion with flare-ups. The veteran also had a splint from the left calf to the ankle and straight leg raising on the left against resistance, was limited to 20 degrees. On the right, against moderate resistance, straight leg raising was 55 degrees. Straight leg raising, right and left, against gravity was limited to 60 degrees. The veteran's gait was markedly slowed and a neurological examination showed deep tendon reflexes left patellar Achilles absent, right patellar and Achilles 2+. The diagnosis was degenerative joint disease of the lumbar spine with decreased range of motion, weakness, and discomfort. In addition, it was noted that in 1991 the veteran experienced a seizure and was diagnosed as having cerebral arteriovenous malformation. He underwent resection of the arteriovenous malformation and subsequently had surgical complications consisting of a stroke with residuals. A June 1997 X-ray report revealed minimal disc space narrowing at L3-4, with mild degenerative osteophytosis at L3-L4 and other levels within the lumbar spine. During an August 1999 VA examination, the veteran complained that weather changes and cold weather worsens his back pain. He also reported that sitting for more than an hour, standing for more than twenty minutes, lifting anything more than twenty pounds and repeated lifting worsens his back pain. The VA examiner observed that the veteran's carriage, posture, and gait was abnormal. He leaned to the right and used a cane on the right hand with a spastic gait, and there was an obvious weakness of the left lower extremity. It was again noted, however, that the veteran had an operation for an arteriovenous malformation in 1991 and while in surgery he suffered from a stroke. This stroke resulted in a paralysis of the left arm, left leg, and a loss of peripheral vision on the left. Upon physical examination, the lumbosacral spine was mid- line, forward bending was 70 degrees with pain across the lower back, lateral bending to the left was 30 degrees and to the right 25 degrees, and extension was 20 degrees. It was noted that all motion was associated with a low grade pain in the lower back. Rotation was 25 degrees and straight leg raising, sitting and supine was negative bilaterally. There was evident weakness of the major groups of muscles in the left upper and lower extremities. Muscle strength was 4/5 on the left as opposed to 5/5 on the right. There was left foot drop. Deep tendon reflexes were present and equal in the left lower extremity. The examiner noted that that an additional 10 to 15 degrees loss of range of motion should be assigned for flexion due to flare-ups and pain with repeated use. There was no additional loss of range of motion assigned for impaired endurance, weakness, or incoordination. The diagnoses included history of cerebrovascular accident, with residuals of spastic gait and hemiparesis. II. Laws and Regulations The veteran's increased rating claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). This finding is based on the veteran's contention regarding the increased severity of his service- connected degenerative joint disease of the lumbar spine at L4-S1. See Jones v. Brown, 7 Vet. App. 134 (1994); Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is also satisfied that all relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). Disability ratings are based on the average impairment of earning capacity resulting from disability. The percentage ratings for each diagnostic code, as set forth in the VA's Schedule for Rating Disabilities, codified in 38 C.F.R Part 4, represent the average impairment of earning capacity resulting from disability. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate 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 DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40. The factors of disability effecting joints are reduction of normal excursion of movements in different planes, including less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. Under the Rating Schedule, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. See 38 C.F.R. § 4.71, Diagnostic Code 5003. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under 38 C.F.R. § 4.71, Diagnostic Code 5003 (1999). The veteran's low back disability is currently rated under Diagnostic Code 5292. Diagnostic Code 5292 provides a 10 percent rating for a slight lumbar spine limitation of motion and a 20 percent rating for a moderate lumbar spine limitation of motion. A 40 percent rating may be assigned for a severe lumbar spine limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1999). Diagnostic Code 5295 provides that a 10 percent evaluation is warranted for lumbosacral strain with characteristic pain on motion. A 20 percent evaluation is warranted for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in the standing position. A 40 percent rating may be assigned when there is severe lumbosacral strain with a listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes or narrowing with irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (1999). Under Diagnostic Code 5293, a 40 percent evaluation is warranted for recurring attacks of severe intervertebral disc syndrome with intermittent relief. A 60 percent evaluation requires pronounced intervertebral disc syndrome 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 disease disc, with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1999). The Board notes that a 50 percent evaluation is warranted for unfavorable ankylosis of the lumbar spine under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5289 (1999). In addition, 60 and 100 percent evaluations are warranted for residuals of a fractured vertebra with or without cord involvement. 38 C.F.R. § 4.71a, Diagnostic Code 5285 (1999). Moreover, 60 and 100 percent evaluations are warranted for complete bony fixation of the spine in a favorable angle or an unfavorable angle with marked deformity with or without involvement of other joints. 38 C.F.R. § 4.71a, Diagnostic Code 5286 (1999). III. Analysis Currently, the veteran's service-connected degenerative joint disease of the lumbar spine at L4-S1 is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5292, and a 40 percent evaluation is assigned, consistent with evidence of severe limitation of motion of the lumbar spine. Under Diagnostic Code 5292, a maximum 40 percent evaluation is assignable for limited motion of the lumbar spine, if the limitation is "severe." Therefore, in this case, the veteran is currently receiving the maximum schedular evaluation available for limitation of motion of the lumbar spine. However, if there is evidence of pronounced intervertebral disc disease with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, and little intermittent relief a 60 percent rating may be assigned for intervertebral disc syndrome under Diagnostic Code 5293. The evidence reveals that the veteran's in-service injury to the low back has resulted in a chronic symptomatology involving pain, weakness, and impaired range of motion, increasing in severity over the years and resulting in significant degenerative joint disease. A recent August 1999 VA examination shows that the veteran's lumbar spine is mid- line and his range of motion was forward bending to 70 degrees with pain across the lower back, lateral bending to the left 30 degrees and to the right 25 degrees, and extension was to 20 degrees. It was noted that all motion was associated with a low grade pain in the lower back. The veteran's rotation was 25 degrees and straight leg raising, sitting and supine was negative bilaterally. The veteran also had a decreased range of motion with 10 to 15 degrees loss of flexion due to flare-ups and pain with repeated use. Though loss of strength and some neurological deficit was observed in the left upper and lower extremities, it was clear from the examination report that the spastic gait and hemiparesis were residuals of the cerebrovascular accident. The degree of neurological impairment attributable to the intervertebral disc disease is clearly less than pronounced. These objective clinical findings do not approximate the criteria for a 60 percent evaluation under Diagnostic Code 5293 as discussed above. Although the presence of degenerative joint disease in the lumbar spine is shown by the clinical evidence, this service- connected disability is currently rated based on limitation of motion under Diagnostic Code 5292, and a compensable (40 percent) rating is assigned. Thus, additional disability rating under Diagnostic Code 5003 is not warranted based on objective evidence of arthritis. In addition, as there is no evidence that any of the veteran's lumbosacral vertebrae have been fractured or that his lumbosacral spine is ankylosed, evaluation of his service-connected low back disorder under Diagnostic Codes 5285, 5286, or 5289, respectively, is not warranted. As shown above, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran or his representative, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In this case, the Board finds no provision upon which to assign a higher rating. Furthermore, the Board recognizes that there are situations in which the application of 38 C.F.R. §§ 4.40, 4.45, or 4.59 is warranted in order to evaluate the existence of any functional loss due to pain, or any weakened movement, excess fatigability, incoordination, or pain on movement of the veteran's joints. See DeLuca v. Brown, 8 Vet.App. 202 (1995). In this case, however, the veteran does not exhibit weakness or instability, deformity, atrophy, fasciculation, pain on movement, or other signs of disability greater than the impairment recognized by the current evaluation. Thus, the Board finds that 38 C.F.R. §§ 4.40, 4.45 or 4.59 do not provide a basis for a higher rating. In denying the veteran's claim, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An evaluation greater than 40 percent for degenerative joint disease of the lumbar spine at L4-S1 is denied. _____________________________________ THOMAS J. DANNAHER Member, Board of Veterans' Appeals