Citation Nr: 0002943 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 94-40 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for post-operative residuals of a herniated nucleus pulposus, L4-L5, secondary to the veteran's service-connected chronic low back strain. 2. Entitlement to an evaluation in excess of 10 percent for the veteran's chronic low back strain. 3. Entitlement to a temporary total disability rating based upon convalescence, following a period of hospitalization from December 9 to December 20, 1991. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robin M. Webb, Associate Counsel INTRODUCTION The veteran had active service from May 1960 to June 1982. This appeal arises before the Board of Veterans' Appeals (Board) from rating actions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied the veteran's claim of entitlement to service connection for a herniated disc, L4-L5, his claim for an increased rating, and his claim for a temporary total disability rating based upon convalescence. The Board notes that the veteran's claim was before the Board in May 1998. At that time, it was remanded for additional development. Specifically, the Board found that the RO had not obtained all of the VA treatment records identified by the veteran, which had been the subject of the Board's earlier remand in October 1996. Current review of the record indicates that the RO complied with the Board's directives, as required by law. See Stegall v. West, 11 Vet. App. 268 (1998). Here, the RO either obtained the additional records identified by the veteran and incorporated them into the claims folder or was informed that no records were available. With respect to the veteran's claim for service connection for post-operative residuals of a herniated nucleus pulposus, L4-L5, the record indicates that direct service connection was denied in a March 1990 rating decision, which the veteran did not appeal. As such, this prior denial became final in accordance with applicable law. However, in its October 1996 remand, the Board noted that recent changes in the law had created a new basis of entitlement in this instance and that the veteran had a claim for secondary service connection (aggravation) separate and distinct from the earlier denied claim. See Allen v. Brown, 7 Vet. App. 439 (1995); see also Spencer v. Brown, 4 Vet. App. 283 (1993). As such, the Board remanded the veteran's claim for secondary service connection to the RO for initial consideration. Given this procedural development, the Board will now consider only the veteran's entitlement to secondary service connection, pursuant to Allen v. Brown. With respect to the veteran's claim for an increased evaluation, service connection for chronic low back strain was granted in a September 1982 rating decision, and a 20 percent evaluation was assigned. Subsequent to a VA examination in August 1985, the RO, in a September 1985 rating decision, decreased the veteran's disability rating to 10 percent. The RO confirmed and continued this 10 percent evaluation in a March 1990 rating decision. In October 1992, the RO received another claim from the veteran asking for an increased evaluation, which it denied in a February 1993 rating decision. The veteran then filed this appeal. The veteran's 10 percent disability rating remains in effect and is the subject of this appeal. See AB v. Brown, 6 Vet. App. 35 (1993). With respect to the veteran's claim for a temporary total disability rating based on convalescence, the Board notes that there are three distinct periods for which the veteran has sought such a rating. The record shows that the veteran was hospitalized in the Wilmington VA Medical Center in January 1990. The RO subsequently denied any benefits for this period of hospitalization in a March 1990 rating decision. The veteran did not appeal this determination, and as such, this denial became final in accordance with applicable law. The record also shows that the veteran was hospitalized in the Philadelphia VA Medical Center in February 1990 and that he filed a claim for benefits under 38 C.F.R. § 4.30 (Paragraph 30) that same month. This period was not addressed by the RO in its March 1990 rating decision, nor was it addressed in the February 1993 rating decision, which is the basis for this appeal currently before the Board. Therefore, the RO has yet to adjudicate this period and the veteran's possible entitlement to benefits. It is not in appellate status, and the Board refers this matter to the RO for consideration and further development, as warranted. Finally, the record indicates that, in October 1992, the veteran filed another claim for Paragraph 30 benefits, this time for a period of convalescence following hospitalization in December 1991. The RO denied such entitlement in a February 1993 rating decision, and the veteran then perfected his appeal as to this issue. At his RO hearing (conducted in October 1993), both the veteran and his representative presented argument only as to the December 1991 hospitalization and the veteran's subsequent convalescence. As such, the Board finds that the issue currently before it for consideration to be as framed on the title page of this decision. The Board will only address entitlement to Paragraph 30 benefits, following the veteran's December 1991 period of hospitalization. FINDINGS OF FACT 1. Competent medical evidence showing aggravation of (or any causal relationship between) the veteran's nonservice- connected residuals of a herniated nucleus pulposus, L4-L5, by his service-connected chronic low back strain has not been presented. 2. All evidence necessary for an equitable disposition of the veteran's claim as to the issue of entitlement to an increased evaluation for chronic low back strain has been obtained by the RO. 3. The veteran's chronic low back strain is manifested by complaints suggestive of severe low back pain and episodes of the back going out. Clinically, range of motion testing found moderate to severe limitation of motion of the lumbar spine. 4. Service connection has been granted for chronic low back strain. 5. The veteran was hospitalized from December 9 to December 20, 1991, for recurrent herniation of nucleus pulposus, L4. Upon discharge, the veteran was ambulating without difficulty, with much relief of his symptoms and back pain. His activity level was restricted to the extent that he could not lift or drive. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for post- operative residuals of a herniated nucleus pulposus, L4-L5, secondary to the veteran's service-connected chronic low back strain, is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991). 2. The schedular criteria for a 40 percent disability rating for the veteran's chronic low back strain have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5295 (1999). 3. The requirements for a temporary total rating based upon convalescence, following a period of hospitalization from December 9 to December 20, 1991, have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.30 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Pertinent Law and Regulations With respect to claims for service connection, a veteran claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well grounded claim is a plausible claim, capable of substantiation. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A well-grounded claim requires more than allegations that the veteran's service, or an incident which occurred therein, resulted in injury, illness, or death. The veteran must submit supporting evidence that would justify the belief that the claim is a plausible one. See Tirpak, 2 Vet. App. at 609. Where a claim is not well grounded, VA does not have a statutory duty to assist the veteran further in the development of his claim. 38 U.S.C.A. § 5107(a); see also Morton v. West, 12 Vet. App. 477 (1999). The United States Court of Appeals for Veterans Claims (known as the U.S. Court of Veterans Appeals prior to March 1, 1999) (hereinafter, Court) has held that the three elements of a well grounded claim for service connection are: 1) evidence of a current disability as provided by a medical diagnosis; 2) evidence of incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence; and 3) a nexus, or link, between the service related disease or injury and the current disability, as provided by competent medical evidence. Caluza v. Brown, 7 Vet. App. 498, 506 (1994). The quality and quantity of evidence required to meet the statutory burden for establishing a well grounded claim depends upon the issue presented by the claim. Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). VA regulation provides that disability which is proximately due to or the result of a service-connected disease or injury shall also be service-connected. 38 C.F.R. § 3.310(a) (1999). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability, the veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). With respect to evaluation of the veteran's chronic low back strain, disability ratings are based, as far as practicable, upon the average impairment of earning capacity attributable to specific injuries. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1, 4.2 (1999). Where there is a question as to which of two evaluations shall be applied, 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. Part 4, § 4.7 (1999). In this instance, the veteran's chronic low back strain is addressed by the schedular criteria applicable to the musculoskeletal system. See 38 C.F.R. Part 4, § 4.71a. Specifically, Diagnostic Code 5295 (Lumbosacral strain) provides for a 10 percent evaluation where there is characteristic pain on motion. A 20 percent evaluation, the next higher evaluation available, is provided for where there is evidence of muscle spasm on extreme forward bending or loss of lateral spine motion, unilateral, in standing position. A maximum 40 percent evaluation is provided for where there is evidence of severe lumbosacral strain, with listing of whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in 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. Additionally, in evaluating limitation of motion, provisions found in 38 C.F.R. §§ 4.40 and 4.45 (addressing disability of the musculoskeletal system and the joints, respectively) must also be considered. DeLuca v. Brown, 8 Vet. App. 202 (1995). With respect to the veteran's claim for a temporary total rating, a total temporary rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted under paragraph (a)(1), (2), or (3) of this section, effective the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month, following such hospital discharge or release. 38 C.F.R. § 4.30 (1999). Total ratings will be assigned if treatment of a service- connected disability resulted in surgery necessitating at least one month of convalescence; if treatment of a service- connected disability resulted in surgery with severe post- operative residuals, such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or if treatment of a service-connected disability resulted in the necessity for house confinement or the necessity for continued use of a wheelchair or crutches. Id. II. Factual Background With respect to the all three issues on appeal, the pertinent evidence of record consists of the veteran's service medical records, VA examinations (conducted in August 1982, in August 1985, in November 1988, in January 1993, in December 1993, and in May 1997), VA treatment records (dated from August 1988 to September 1998), private medical records (dated from July 1989 to June 1998), and the veteran's testimony at his RO hearing. The veteran's service medical records are replete with entries as to the veteran's low back pain, which was subsequently diagnosed as chronic low back pain syndrome, but reflect no diagnosis of or clinical findings indicating a herniated disc. It was noted in a January 1975 entry that the veteran had bent over while shaving and that his back went out. At that time, he complained of pain centrally at L4, with radicular pain around both flanks. The veteran reported no symptoms in his legs. The initial impression was questionable herniated disc. The veteran was hospitalized for five days in order to rule out a herniated disc, and it was noted later that month that evidently the veteran did not have a herniated disc. The veteran was put on profile. A September 1976 Physical Profile Record noted the veteran's defect to be a congenital lumbosacral anomaly (partial sacralization L5). Upon retirement examination (conducted in March 1982), chronic low back pain syndrome was noted, as was the veteran's intermittent use of a back brace. A herniated disc was not recorded. The August 1982 VA examination contains the diagnosis of chronic back strain, due to congenital L5 and obesity. A contemporaneous x-ray study of the lumbar spine showed that L5 was transitional on the left side. No bony radiculopathy was seen, and disc spaces appeared intact. The August 1985 VA examination reflects the veteran's report that he had been in pain every day since December 1974. A contemporaneous x-ray study of the lumbar spine showed that L5 was transitional, with bilateral sacralization but no other abnormality. Disc spaces still appeared to be intact. The diagnoses were transitional anomaly of L5, bilaterally, congenital in origin, and chronic mechanical lumbosacral strain, probably secondary to the first. An August 1988 x-ray study taken at the Wilmington VA Medical Center showed mild degenerative joint disease of the veteran's lumbar spine. The November 1988 VA examination reflects the veteran's complaints of low back pain and references the August 1988 x- ray study of the veteran's lumbar spine. Subsequent to orthopedic examination, the diagnoses were, in pertinent part, possible degenerative joint disease of the lumbar spine and obesity. Private medical records from Dr. K. dG., D.C., (dated in June 1989) indicate that the veteran sought treatment for low back pain and for a sharp pain in the left hip. It was noted that the veteran's present episode of low back pain had begun in April 1989, when he had bent over. Subsequent to examination, the diagnosis was vertebral subluxation complex, with components of neurological compression syndrome. Complications listed were scoliosis, ligament laxity, and myofascitis. This resulted in lumbar radiculitis, muscle spasms, hip neuralgia, and thoracalgia. The recorded impression was acute episode of a chronic lumbar spinal injury and distortion syndrome, with associated ligament changes aggravated by scoliosis. Records from the Wilmington VA Medical Center show that the veteran was treated for an L4-L5 herniated disc in January 1990. It was noted that the veteran had a long history of back pain, since 1970. The veteran stated that he had been treated conservatively during this time, but he was prompted to come to the emergency room because he felt a pull on his left leg and a sharp pain going from the back of his hip and down his leg to his foot while trying to step into his truck. The veteran was admitted and treated symptomatically with bed rest and pain medication. Upon discharge, it as noted that the veteran was to follow-up with the Philadelphia VA Medical Center. There was no discussion as to any causal or aggravating relationship between the veteran's service- connected chronic low back strain and his herniated disc. Records from the Philadelphia VA Medical Center in December 1991 show that the veteran underwent a left L4-L5 hemilaminectomy and microdiscectomy in February 1990. The veteran's chronic low back pain was not referenced in these records, and no opinion was expressed as to the etiology of the veteran's herniated disc. Records from the Mountain Home VA Medical Center reflect the veteran's earlier herniated disc repair at the Philadelphia VA Medical Center. It was noted at admission that the veteran had a seven-week history of severe low back pain, with pain and numbness radiating down his right leg. No other significant past medical history was indicated. The veteran underwent a myelogram and post-myelogram CT scan, which revealed an amputation of the root at L-4 and post- surgical change on the contralateral side. The veteran was discharged four days post-operative, and it was noted that he was ambulating without difficulty, with much pain relief of his symptoms and back pain. His incision was healing well, and follow-up was scheduled in the Neurosurgery Clinic in one week. Upon discharge, the veteran was not to lift or drive. A neurosurgery follow-up note shows that the veteran had good resolution of his symptoms, with the exception of some lateral foot residual numbness. The January 1993 VA neurological examination found right sciatic and anterior peroneal sural nerve dysfunction, secondary to lumbar herniated nucleus pulposus and spinal stenosis post hemilaminectomy. There was also associated lumbar fibromyositis. The examiner stated that the veteran was totally disabled and seriously handicapped, secondary to his service-connected back disability. At his RO hearing (conducted in October 1993), the veteran testified that he had back spasms and pain in the lower extremity, all the way across the lower part of his back, on both the right and left sides. (Transcript (T.) at 3). Slightly bending forward caused an increase in pain. Id. The veteran stated that he could bend laterally but with some discomfort. Id. He could walk about 1/4 of a mile before experiencing back pain. (T. at 4). The veteran reported that spasms affected both the right and left sides of his spine equally. Id. When asked if it was suspected in service that he had a bulging disc, the veteran responded in the affirmative. Id. Following his hospitalization at Mountain Home VA Medical Center, the veteran testified that the doctor had told him to stay in bed for several weeks, for more than four weeks. (T. at 6). When presented with the criteria for a 40 percent evaluation for lumbosacral strain, the veteran indicated that he experienced all of those symptoms every day. (T. at 6-7). When asked how long his symptoms lasted, the veteran stated that it could be several hours or all day. (T. at 7). The veteran also stated that he had complained of numbness in his legs while in service. Id. When asked if he had ever injured himself on the job after leaving service, the veteran responded in the negative. (T. at 9). In closing, the veteran's representative asserted that service connection for the veteran's low back was based on aggravation of a preexisting condition. Id. Given the medical evidence of record, the representative could not understand how the rating board could fail to see a relationship between the veteran's service-connected disability and his subsequent laminectomies. (T. at 9-10). The December 1993 VA examination references the veteran's service medical history as to his low back strain and his post-service lumbar hemilaminectomy on the right for a herniated nucleus pulposus at the L4-L5 level in 1990 and his laminectomy for another herniated nucleus pulposus at the L4- L5 level in 1991. An MRI of the veteran's lumbar spine revealed central disc herniation of the L2-L3 level, causing mild to moderate spinal stenosis and moderate spinal stenosis at the L4-L5 level, secondary to degenerative changes. The examiner referenced prior CT scans and x-ray studies of the lumbar spine, which showed a progression of this spinal stenosis due to a herniated nucleus pulposus at these two levels, despite two intervening surgeries. Range of motion testing of the lumbar spine found left lateral flexion to be 10 degrees, with pain; right lateral flexion was also 10 degrees, with pain. Right and left rotation was also to 10 degrees and with pain, and it was noted that the veteran grimaced upon testing. The pertinent diagnoses were status post lumbar hemilaminectomy with resulting herniated nucleus pulposus at the L2-L3 level, with moderate spinal stenosis and moderate spinal stenosis at the L4-L5 level, secondary to degenerative changes, and right sciatic neuritis, secondary to the first. The examiner did not discuss any causal or aggravating relationship between the veteran's service- connected chronic low back strain and the subsequent herniated nucleus pulposus. Additional VA treatment records pertain primarily to control of the veteran's diabetes mellitus and to his lupus. An entry dated in November 1995, though, indicates that the veteran hurt his back while throwing a bag of trash into a dumpster. The veteran had felt a pop and a give in his back on the left side. A March 1996 entry concerns results from the veteran's CT scan of the spine. It was noted at that time that the veteran had osteoarthritis and degenerative disc disease. The May 1997 VA examination reflects the veteran's service medical history of having strained his back in 1974. The veteran continued to have episodes where his back would go out on him, resulting in significant pain and limitation for several weeks at a time. During these episodes, there was no numbness or tingling down the veteran's lower extremities. His back pain was centered in the lower back and would feel ice cold. This examination also reflects the veteran's injury in 1990, when he was stepping into his truck. At that time, the veteran experienced severe pain in his lower back, which was worse than before. The veteran reported that he developed tingling, numbness, and discomfort in his lower extremities following surgery in 1991. The veteran continued to complain of severe low back pain and persistent numbness and weakness in the right lower extremity, secondary to the right-sided disc herniation and nerve damage. The veteran also complained of continued episodes of his back going out. When his back did go out, the veteran reported that he needed a walker to ambulate. The examiner stated that the veteran's complaints were suggestive of severe low back pain. Range of motion testing of the lumbar spine showed 60 degrees of forward flexion, extension to 20 degrees, lateral bending of 15 degrees to the left and 20 degrees to the right, and lateral rotation was 20 degrees bilaterally. It was noted that the veteran experienced some discomfort in his back and knees with forward flexion and in his back with lateral bending and rotation. The examiner referenced x-rays of the veteran's lumbar spine from November 1996, which showed apparent sacralization of L5. There was also evidence of a right laminectomy at L4 and some mild anterior osteocytic change at the bodies of L2, L3, L4, and L5, with some mild disc space narrowing at L4-L5. There did not appear to be any facet arthrosis or evidence of scoliosis or evidence of spondylolysis/spondylolisthesis. The diagnosis was chronic low back pain syndrome. The examiner stated that the veteran did, indeed, have significant disability secondary to his chronic low back pain syndrome, but the examiner did not believe that the veteran's history of herniated discs both at L4 and L5, both on the right and left side, that occurred in 1990 and 1991 were related to the veteran's low back strain in 1974. Additional private medical records pertain primarily to the veteran's diabetes mellitus, his lupus, and to his benign prostatic hypertrophy. The veteran's complaints of lower back pain were noted in a November 1997 entry, though, as was his history of herniated discs with surgery and arthritis. III. Analysis With respect to the veteran's claim for secondary service connection, the Board recognizes the veteran's contention that he was granted service connection for chronic low back strain, which was the result of a congenital anomaly at L5, and, therefore, he should be granted service connection for a herniated nucleus pulposus at L4-L5, as the area involved is the same. However, the Board must adhere to established laws and regulations in its determinations. As such, the veteran's claim for secondary service connection (aggravation pursuant to Allen v. Brown) must be denied, as it is not well grounded. Specifically, none of the clinical evidence of record speaks to any causal or aggravating relationship between the veteran's service-connected chronic low back strain and his subsequent herniated nucleus pulposus at L4-L5. Rather, it was noted in the May 1997 VA examination, conducted pursuant to the Board's October 1996 remand, that the veteran's history of herniated discs both at L4 and L5, both on the left and right sides, that occurred in 1990 and 1991, were not related to his low back strain in 1974, while in service. As such, the veteran has proffered only his assertions that the two are related. In this respect, nothing in the record indicates that the veteran possesses the medical expertise necessary to render such an opinion. See Espiritu v. Derwinski, 2 Vet. App. (1992). Lay assertions as to causation and diagnosis are inadequate. Id. Where the determinative issue involves medical causation or diagnosis, competent medical evidence is required. See Grottveit v. Brown, supra. Therefore, absent competent medical evidence of some causal or aggravating relationship between the veteran's service connected chronic low back strain and his herniated nucleus pulposus, L4-L5, the veteran has not submitted a well grounded claim of entitlement to secondary service connection, specifically for aggravation of a nonservice- connected disorder by a service-connected disability. See Allen v. Brown, supra; see also Caluza v. Brown, supra. The Board notes that the veteran was put on notice as to the evidence required to support this claim in the August 1999 supplemental statement of the case, as he was informed of the evidentiary requirements of a well-grounded claim and told that medical evidence as to a relationship between his chronic low back strain and his herniated nucleus pulposus, L4-L5, was necessary. Moreover, the veteran has not provided any indication of the existence of additional evidence that would make this claim well grounded. See Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69 (1995). Here, pursuant to the Board's remands, the RO has obtained all of the treatment records identified by the veteran that were available. With respect to one of the veteran's private physicians, Dr. R. A. G. M.D., the RO requested these records from the doctor, but the request was returned as undeliverable. With respect to Dr. J. B. A., M.D., no response was received, and the RO informed the veteran as such. The veteran, in turn, did not provide copies of these records. Application of the rule regarding benefit of reasonable doubt is not required, as the veteran has not met his burden of submitting a well-grounded claim. 38 U.S.C.A. § 5107(b). In addition, although the veteran's representative has requested that this issue be referred to an independent medical expert for an opinion, the Board does not have a duty to further develop the claim. With respect to evaluation of the veteran's chronic low back strain, initially, the Board finds that the veteran has submitted a well grounded claim within the meaning of 38 U.S.C.A. § 5107(a). His assertion that this disability is greater is sufficient to make the claim plausible. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board is also satisfied that all relevant facts have been properly developed pursuant to VA's duty to assist the veteran in development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a). Moreover, in accordance with 38 C.F.R. §§ 4.1 and 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all of the evidence of record pertaining to the history of the veteran's chronic low back strain. In light of the latest and most current development of the record, the Board is of the opinion that this case presents no evidentiary considerations which warrant an exposition of the more remote clinical evidence of record. Here, the Board notes that the basic concept of the rating schedule is to compensate for present disability, not for past or potential future disability. See 38 U.S.C.A. § 1155; see also Francisco v. Brown, 7 Vet. App. 55 (1994). As such, upon review of the pertinent clinical evidence of record and the applicable schedular criteria, the Board finds that a 40 percent evaluation is warranted under Diagnostic Code 5295. As discussed above, Diagnostic Code 5295 provides for a 10 percent evaluation where there is characteristic pain on motion. A 20 percent evaluation is warranted where there is evidence of muscle spasm on extreme forward bending or loss of lateral spine motion, unilateral, in standing position. A maximum 40 percent evaluation is warranted where there is evidence of severe lumbosacral strain, with listing of whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in 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. The veteran is currently evaluated as 10 percent disabled under this code. Here, though, the Board notes that the record reflects the veteran's consistent complaints of daily and severe pain in his lower back. The Board also notes that the examiner indicated upon VA examination in January 1993 that the veteran was seriously handicapped due to his service- connected disability, that upon VA examination in December 1993 the veteran had severe limitation of motion of the lumbar spine, and that upon VA examination in May 1997, the examiner stated that the veteran's complaints were suggestive of severe lower back pain and that the veteran had significant disability secondary to his chronic low back pain syndrome. Further, the veteran's range of motion of the lumbar spine at that time was moderate. As such, the Board finds that the veteran's chronic low back strain has been qualified as severe and significant and that his limitation of motion has been found to be from moderate to severe. Given applicable VA regulation that directs that where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating, the Board finds that the veteran's current disability picture more nearly approximates the criteria required for a 40 percent evaluation under Diagnostic Code 5295. See 38 C.F.R. § 4.7; 38 U.S.C.A. § 5107(b). As for functional impairment, the Board has considered the provisions of 38 C.F.R. §§ 4.40 and 4.45 and their application. Here, the Board has determined that the veteran's complaints of daily and severe pain and the objective evidence of severe and significant disability due to his chronic low back strain approximate a severe rating under Diagnostic Code 5295 and has, accordingly, assigned the maximum disability rating provided for under this code. Further, absent clinical evidence of a causal or aggravating relationship between the veteran's service-connected chronic low back strain and his herniated nucleus pulposus, L4-L5, Diagnostic Code 5293 (Intervertebral disc syndrome), which provides for a higher evaluation of 60 percent, is not for application. With respect to the veteran's claim for a temporary total rating based upon convalescence following a period of hospitalization from December 9 to December 12, 1991, the Board stresses its determination above that the veteran is not entitled to service connection for post-operative residuals, secondary to his service-connected chronic low back strain. As such, the veteran is only service-connected for chronic low back strain, and the hospitalization in December 1991 was for recurrent herniation of nucleus pulposus at L4. Total ratings will only be assigned if treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence; if treatment of a service-connected disability resulted in surgery with severe post-operative residuals, such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or if treatment of a service-connected disability resulted in the necessity for house confinement or the necessity for continued use of a wheelchair or crutches. See 38 C.F.R. § 4.30 (emphasis added). Clearly, then, VA regulation requires as a threshold matter that the treatment received (and the subsequent convalescence) be for a service-connected disability. Id. In this instance, it is not. The veteran is service- connected for chronic low back strain, not for herniated nucleus pulposus, L4-L5, and as discussed above, the clinical evidence or record does not show a causal or aggravating relationship between the two. As such, absent treatment and subsequent convalescence for a service-connected disability, the veteran is not entitled to Paragraph 30 benefits. ORDER Entitlement to service connection for post-operative residuals of a herniated nucleus pulposus, L4-L5, secondary to the veteran's service-connected chronic low back strain, is denied. A 40 percent disability rating is granted for the veteran's chronic low back strain, subject to the applicable provisions pertinent to the disbursement of monetary funds. A temporary total rating based upon convalescence following a period of hospitalization from December 9 to December 20, 1991, is denied. V. L. Jordan Member, Board of Veterans' Appeals