Citation Nr: 0005877 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 96-12 681 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to a rating in excess of 10 percent for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Robinson, Associate Counsel INTRODUCTION The veteran had active duty from February 1989 to February 1993. This matter comes before the Board of Veterans' Appeals (Board) from a March 1995 rating determination of the San Juan, Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA), in which service connection was granted for lumbar myositis which was assigned a 10 percent evaluation. In January 1999, the Board remanded this case for additional development. It is the determination of the Board that the evidentiary record is sufficient both in scope and in depth for a fair, impartial, and fully informed appellate decision. FINDING OF FACT The veteran's service-connected lumbar spine disorder, including degenerative joint disease, is manifested by muscle spasm and no more than moderately limited motion, and without severe listing of the whole spine, or evidence of neuropathy, deformity, atrophy, or disuse. CONCLUSION OF LAW The criteria for an increased evaluation of 20 percent for the veteran's service-connected lumbar myositis, mechanical low back pain have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. Part 4, §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, Diagnostic Code (DC) 5295 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background A review of the service records show that the veteran was seen on several occasions with complaints of low back pain due to a fall. The veteran was accorded a VA spine examination in October 1993. On examination, mild right dextroscoliosis was observed. Muscle strength was 5/5 in all lower extremity and back muscles. There was tenderness to palpation of the paravertebral muscles over the thoracic and lumbosacral area. Range of motion was as follows: forward flexion was to 75 degrees, backward extension was to 30 degrees, left lateral flexion and right lateral flexion was to 20 degrees with pain, and left and right rotation was to 30 degrees. The diagnoses were mechanical low back pain and lumbar myositis. X-rays of the lumbosacral spine showed minimal lumbar spondylosis without evidence of spondylolysis or spondylolisthesis. The disc spaces were well maintained. X-rays of the lumbar spine dated in April 1995 showed some early anterosuperior lipping at the L4-L5 vertebral bodies. This was considered early degenerative etiology. There was no other significant degenerative arthritic or post traumatic abnormalities identified. VA outpatient treatment records dated from May to October 1995 show the veteran was seen with complaints of low back pain. VA outpatient treatment records dated from May to October 1996 show that the veteran was seen with complaints of low back pain. Clinical findings included 3/5 paravertebral muscle spasm in the lumbosacral area, tenderness to palpation of the lumbar spine area, and slight limitation of motion. The records also show that the veteran underwent physical therapy. VA outpatient treatment records dated from May to September 1997 show that the veteran was seen and treated for low back pain. Computed tomography (CT) scan of the lumbar spine showed minimal L5-S1 posterior bulging disc without significant effect upon the sac or the nerve root. The veteran was accorded a travel board hearing before the undersigned in February 1998. At that time, he testified that he received ongoing treatment for his back at the VA medical center and by a private physician. He reported that he experienced constant pain in his low back. He reported that his medication only alleviated the pain and did not take the pain away entirely. He reported that he was unable to stand or sit for extended periods of time due to increased pain. He reported that he was also unable to bend over to touch his ankles due to pain. He reported that he sustained further injury to his back due to a motor vehicle accident. The veteran was accorded a VA examination in March 1998. At that time, he complained of severe localized back pain. On examination, range of motion for forward flexion, backward extension, right and left lateral flexion, and rotation was to 20 degrees. The examiner noted that the veteran was unwilling to demonstrate full effort with the range of motion exercises. He also noted that the veteran experienced no difficulty upon bending while dressing and undressing. There was no painful motion of the lumbar spine. There was no objective evidence of painful motion and no objective evidence of muscle spasm of lumbar paravertebral muscles. There was no objective evidence of weakness of the legs and no evidence of tenderness to palpation on lumbar paravertebral muscles. There were no postural abnormalities of the back noted. The diagnosis was low back pain syndrome. Private medical records dated in July 1998 show that the veteran underwent a neurological evaluation. It was noted that the veteran was involved in a motor vehicle accident in November 1997 wherein he sustained a low back contusion. Thereafter, he developed persistent nuchal and lumbar pains. On examination, there was paravertebral muscle tenderness at the right L4-L5 levels. Range of motion of the lumbar spine was as follows: flexion was to 30 degrees and right and left lateral flexion was to 15 degrees, bilaterally. The sciatic nerve area was not painful to palpation, and straight leg raising was slightly positive at 90 degrees. Private medical records dated in December 1998 show that the veteran underwent a physiatrist evaluation. On examination, muscle spasm was noted over the lumbosacral spine paravertebral muscles. The veteran was unable to flex his trunk secondary to pain and fear of injuring himself. In February 1999 the examiner noted muscle spasm and full range of motion. Private medical records dated in April 1999 show that the veteran underwent neurological evaluation. On examination, right lumbar paravertebral muscle tenderness was noted. Range of motion was as follows: flexion was to 20 degrees, and right and left lateral flexion was to 10 degrees. There was no pain to palpation over the sciatic nerve, and straight leg raising produced only lumbalgia and was considered negative. The diagnosis was chronic lumbar strain, rule out lumbar radiculopathy. The veteran was accorded a VA spine examination in April 1999. At that time, he complained of pain, weakness, fatigability, and lack of endurance. He reported that he received monthly injections and ongoing physical therapy. He reported that he was employed as a mail carrier and had not received any written warnings about poor performance due to his low back condition but had been verbally admonished due to frequent absences because of low back pain. On examination, range of motion was as follows: forward flexion was to 10 degrees, lateral flexion was to 10 degrees, backward extension was to 10 degrees, and rotations were to 35 degrees. No additional functional impairment was noted. There was no objective pain on motion on all movements of the lumbar spine. There was no objective evidence of muscle spasm as well as no evidence of tenderness to palpation on lumbar paravertebral muscle. Muscle strength was 5/5, and there was no atrophy. On neurological evaluation, the veteran's gait was described as normal. There was diminished sensation to pinprick in the L5 dermatome of the foot, and knee and ankle jerks were 2+ and symmetrical. The examiner noted that the measured ranges of motion were not reliable because the veteran did not put forth his full effort. He also reported that there was no satisfactory evidence of painful motion; that there was normal excursion, speed, strength, coordination and endurance; and that there was no additional limitation of motion due to flare-ups. X- rays showed early degenerative spondylitic changes of the lumbar spine and muscle spasm. A magnetic resonance imaging showed no definite disc herniations or spinal canal stenosis and mild lumbar spondylosis. A report of electrodiagnostic examination dated in May 1999 showed nerve conduction studies of both motor nerves and sensory nerves within normal limits. Needle electromyography showed no abnormality, there was no evidence of radiculopathy and no evidence of neuropathy. Pertinent Law and Regulations Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). When a question arises as to which of two evaluations shall be assigned, 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). The criteria for evaluating a lumbosacral strain are found at 38 C.F.R. Part 4, DC 5295 and provide that only slight subjective symptoms warrant a noncompensable evaluation but that characteristic pain on motion warrants a 10 percent evaluation. For a 20 percent evaluation there must be muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in a standing position. A maximum 40 percent schedular rating may be assigned for a 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 osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Slight limitation of motion of the lumbar spine warrants a 10 percent evaluation; moderate limitation warrants a 20 percent evaluation; and severe limitation warrants a 40 evaluation. 38 C.F.R. Part 4, DC 5292. Under 38 C.F.R. § 4.71a, DC 5293 a 10 percent evaluation is warranted for mild intervertebral disc syndrome (IVDS) and a 20 percent evaluation if moderate with recurring attacks. A 40 percent rating requires severe IVDS with recurring attacks and with little intermittent relief. A 60 percent evaluation is warranted for pronounced IVDS with persistent symptoms compatible with sciatic neuropathy (i.e., with characteristic pain and demonstrable muscle spasm and absent ankle jerk or other neurological findings appropriate to the site of the diseased disc) and little intermittent relief. Sciatic neuritis is not uncommonly caused by arthritis of the spine. 38 C.F.R. § 4.59 (1999). 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. When the limitation of motion is noncompensable, an evaluation of 10 percent is assigned if the joint is affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. Part 4, DC 5003. In evaluating a service-connected disability involving a joint rated on limitation of motion, the Board must also consider functional loss due to weakness, fatigability, incoordination or pain on movement of joint under the provisions of 38 C.F.R. § 4.45 (1999). Analysis By rating decision of March 1995 the RO granted service connection for a lumbar myositis, noting that service medical records showed the onset of the condition during service. A 10 percent rating was assigned, and this rating is the subject of this appeal. This is an appeal from an original rating action, but whether the issue is characterized as an increased rating or as the propriety of the initial assignment of the 10 percent rating, the principles involved are the same, and the Board finds no reason in this case to attempt to recharacterize the issue. All pertinent evidence for the appeal period has been considered. Fenderson v. West, 12 Vet. App. 119 (1999). Based on a review of the evidence and considering the principles cited above, the Board concludes that a 20 percent rating is warranted for the veteran's lumbar spine disability. The Board concludes that the evidence shows moderate impairment resulting from the low back disability. On the most recent VA examination, there was no evidence of muscle spasm; however, muscle spasm was reported on the most recent radiographic report, and muscle spasm has been shown on outpatient treatment records. Therefore, the Board concludes that the veteran's disability picture more nearly approximates the criteria for a 20 percent evaluation pursuant to DC 5295. However, a 40 percent rating as provided for lumbosacral strain under DC 5295 is not warranted because the evidence does not show listing of the spine, marked limitation of forward bending or abnormal mobility on forced motion. Turing to DC 5292, a rating in excess of 20 percent under this provision requires "severe" limitation of motion. While examination reports show range of motion figures indicative of severe limitation of motion, on several occasions VA examiners have found that the range of motion figures were unreliable due to the veteran's unwillingness to cooperate. Since the reported range of motion figures have been deemed unreliable, the Board concludes that the veteran does not objectively demonstrate severe limitation of motion. Also weighed by the Board were the provisions of 38 C.F.R. §§ 4.40 with regard to giving proper consideration to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. § 4.45, the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995). In this case, however, the objective medical evidence does not demonstrate that the service-connected low back disability is productive of additional loss due to pain on use, including use during "flare-ups," or functional loss due to weakness, fatigability, incoordination, or pain on movement, so as to warrant the assignment of rating in excess of 20 percent. Findings of such were not shown on examinations in 1993, 1998 or 1999. The Board also finds that given the minimal, if any, neurological findings demonstrated upon the recent examinations, a rating in excess of 20 percent for intervertebral disc syndrome under DC 5293 would not be warranted. Moreover, the veteran has not been shown have IVDS. As support for the conclusion that no more than a 20 percent rating is warranted, attention is directed to the statements by the most recent VA examiner. He concluded that there was no swelling, muscle spasm, or satisfactory evidence of pain on motion. He reported that the veteran had normal excursion, speed, strength, coordination, and endurance. There was no evidence of deformity, atrophy, or disuse. A magnetic resonance imaging showed no evidence of herniated discs and electromyogragh showed no evidence of lumbar radiculopathy. Moreover, there was no evidence of additional limitation of motion during flare-ups. There was no tenderness of the back or any impairment of gait which could be attributed to the service-connected back disability. The Board has carefully considered the "positive" evidence represented by the sworn testimony and written contentions of the veteran asserting a more severe level of disability, however, the Board finds the probative value of this subjective evidence to be overcome by that of the objective clinical evidence. Francisco, 7 Vet. App. at 55 (1994). The evidence does not reflect that the veteran has been hospitalized for his low back disability or that it is otherwise of such an unusual nature as to render impractical the application of the regular schedular rating standards for the purposes of assigning an extraschedular evaluation. Additionally, the evidence does not show that the disability, in and of itself, markedly interferes with his employment as a mail carrier. Accordingly, the Board finds no error in the RO's failure to refer the case to the Undersecretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321 (1999). ORDER An increased rating, to 20 percent, for a low back disability is granted, subject to regulations governing the payment of monetary awards. HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals