Citation Nr: 0005053 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 96-45 170 ) DATE ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for a low back disability. ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The veteran had active service from June 1993 to November 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the VARO in Waco, Texas. The record reflects that by rating decision dated in April 1996, service connection for lumbosacral strain was granted and a 10 percent evaluation was assigned, effective November 11, 1995. Additional evidence was developed and by rating decision dated in November 1998, the prior rating decision was amended to reflect a 20 percent evaluation for the lumbosacral strain, effective November 11, 1995, the day following the veteran's discharge from service. By communication dated December 21, 1998, the veteran was informed of the 20 percent rating for the lumbosacral strain. He was told that if he was satisfied with the decision, he was to complete an enclosed form and return the appeal cancellation notification to the RO. He did not do so and therefore the question of his entitlement to an original rating in excess of 20 percent for the low back strain is before the Board for appellate review. The Board notes that by rating decision dated June 1999, service connection for a right knee disability and service connection for somatization disorder was denied. The veteran was informed of the denial action that month. A notice of disagreement with the determination is not of record. He was also informed that service connection was granted for a chronic cervical spine disability and for a chronic left knee disability. Neither the veteran nor his representative has expressed disagreement with the assigned disability ratings of 10 percent for the cervical spine or 10 percent for the left knee disorder. January 2000 Decision Vacated In the January 2000 decision the Board granted service connection for a cervical spine disability, namely cervical strain, and granted service connection for a left knee disability, namely chondromalacia. It also denied entitlement to an initial rating in excess of 20 percent for lumbosacral strain. However, a review of the record reflects that service connection had previously been established for cervical spine and left knee disorders by the RO in a June 1999 rating decision. An appellate decision may be vacated at any time by the Board upon request of the veteran or his representative, or on the Board's own motion, where it is shown there has been a denial of due process. 38 C.F.R. § 20.904(a) (1999). In view of the foregoing, the January 10, 2000 decision granting service connection for cervical spine and left knee disabilities is VACATED. The issue of an initial rating in excess of 20 percent for a low back disability will be considered on a de novo basis below. FINDING OF FACT Manifestations of the lumbar strain include diffuse tenderness over the low back area and some paravertebral muscle spasm and no more than moderate limitation of motion. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for lumbosacral strain since the effective date of service connection have not been met. 38 U.S.C.A. §§ 1151, 5107(a) (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5295 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to an Original Rating in Excess of 20 Percent for Lumbosacral Strain The appellant's claim is well grounded. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). A veteran's assertion that the disability has worsened serves to render the claim well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). In the instant case the veteran is technically not seeking an increased rating, since his appeal arises from the original assignment of a disability rating. However, when a veteran is awarded service connection for a disability and subsequently appeals the initial assignment of a rating for that disability, the claim continues to be well grounded. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). The average impairment as set forth in VA's Schedule for Rating Disabilities codified in 38 C.F.R. Part 4, includes diagnostic codes which represent particular disabilities. Generally, the degrees of disabilities specified are considered adequate to compensate for loss of working time proportionate to the severity of the several grades of disability. The determination of whether an increased evaluation is warranted is to be based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history. The veteran's back disability has been evaluated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5295, which provides a 20 percent evaluation when there is lumbosacral strain with muscle spasm on extreme forward bending, and a unilateral loss of lateral spine motion, in the standing position. A 40 percent evaluation is provided for severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in the 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. 38 C.F.R. § 4.71a, Diagnostic Code 5295. The disability can also be evaluated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5292. A 20 percent evaluation is assigned under the code when there is moderate limitation of motion of the lumbar spine. The maximum rating of 40 percent is for assignment when the motion restriction of the spine is severe. 38 C.F.R. § 4.71a, Code 5292. The low back disability could also be evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5293. A 20 percent evaluation requires moderate and recurrent symptoms associated with intervertebral disc syndrome. The next higher rating of 40 percent is provided for severe intervertebral disc syndrome, manifested by recurring attacks with intermittent relief. The maximum 60 percent rating requires 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 the site of the diseased disc, with little intermittent relief. The Court has held that, when a diagnostic code provides for compensation based on limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1999) must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The provisions of 38 C.F.R. § 4.40 provide as follows: Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body on normal excursion, strength, speed, coordination and endurance. It is essential that the examination on 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 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 it may be due to pain, supported by adequate pathology and evidenced by the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. The provisions of 38 C.F.R. § 4.45 provide: As regards the joints the factors of disability reside in reduction of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, and so forth); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, and so forth); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. The Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that "compensation for service-connected injury is limited to those claims which show present disability" and held that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance." More recently, the Court has held that the provision is not applicable for the assignment of an initial rating for disability following an initial award of service connection for the disability. At the time of an initial rating, separate ratings will be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). With these principles in mind, the Board will consider whether the veteran was entitled to an evaluation in excess of 20 percent during any period since service connection was established. A review of the evidence of record discloses that when the veteran was accorded an examination of the joints by VA in March 1996, he exhibited a normal gait and a straight spine. He had 80 degrees' flexion, 40 degrees' extension, 40 degrees' lateral extension and 35 degrees' rotation of the low back. He did these movements very slowly and "unwillingly." The diagnosis was complaints of back condition without clinical confirmation. The veteran was also accorded a general medical examination by VA in March 1996. It was indicated that the examination was essentially negative. An X-ray study of the spine at that time was normal. When he was accorded an examination of the joints by VA in March 1997, he was observed to be able to move on and off the examining table without difficulty. He was also able to lie down on the table. The examiner remarked that throughout the examination the veteran demonstrated marked overt pain behavior. There were normal contours to the lumbar spine. There was no paravertebral muscle spasm. Further, there was no rigidity and no palpable abnormality. When asked to go through range of motion testing, the veteran "inhibited" the range of motions, making them unusable for rating purposes. The examiner noted that the veteran was able to move his neck and his spine to a greater extent than he did when asked by the examiner to move it for measurement purposes. It was noted that for measurement purposes, the veteran flexed the spine to 20 degrees. He would not extend beyond 0 degrees. Also, he would not laterally flex or rotate the spine beyond 0 degrees. However, when asked to do several of the tests with his hands, he voluntarily lumbar flexed to at least 40 degrees. The examination impressions included chronic pain syndrome, lumbalgia, and psychological factors affecting physical condition, including depression. In discussing the impact of pain, the examiner noted that in his opinion the veteran was "a pain magnifier." By this, he meant that the veteran demonstrated marked pain behavior throughout the examination. The examiner stated he could not document objectively the severity of pain because of no muscle atrophy that could be detected. Further, he could not identify anything with regard to range of motion because the ranges of motion were blocked voluntarily although he indicated the veteran showed improved motion when not realizing that he was being observed. The examiner suspected the pain affected the veteran to a mild degree. X-ray studies of the lumbar spine done at that time were entirely normal except for notation of marginated defect of the 5th lumbar vertebra, noted as probably being developmental in nature. The veteran was accorded an examination of the spine by VA in August 1998. Reference was made to medical records from the VA Medical Center in Shreveport. It was noted that the lumbar spine X-ray studies made in May 1998 were interpreted as being within normal limits. The veteran's problems at that facility reportedly included low back pain or sciatica, and discogenic disease. The veteran was seen on one occasion in 1998 for complaint of low back pain. He was given a muscle relaxant. The veteran stated that he hurt his low back doing physical training on a concrete surface in 1994. He referred to various treatments over the years, but acknowledged that he had had no surgery. Examination of the low back seemed to show diffuse tenderness from about the midthoracic area, including both gluteal areas. This was described as an "exceedingly subjective" finding. The veteran did not seem to withdraw after any palpation using deep pressure over the lumbar area. There seemed to be some paravertebral muscle spasm, more so on the left than on the right. The veteran sat leaning slightly toward the left. There was no scoliosis when he assumed an upright position, either standing or sitting. On straight leg raising he stated it was painful before the legs were raised. He complained that it became more severe after 45 degrees and was somewhat lessened in degree of pain by flexion of the knees. The pertinent examination diagnosis was lumbar strain with chronic pain and paresthesias of both thighs. The examiner noted the veteran's symptoms were amplified by a somatoform disorder. Lumbar limitation at the present time represented significant occupational impairment for activities such as running, jogging, walking, climbing, use of stairs repetitively, working above the shoulders with the upper arms, looking upward significantly, or doing common labor work. The veteran was accorded neurological testing and it was indicated that all motor and sensory response amplitude and latency values were normal. The derived conduction velocity values were also within normal limits. The veteran was also accorded a peripheral nerve examination by VA in August 1998. He was able to walk and to stand. He was also able to stand on his heels. He hesitated to do knee bending, and lurched as if it were very painful. Sensory examination of the lower extremities was essentially intact. There was no clonus. There were no pathological reflexes. Reflexes in the lower extremities were 2 plus and symmetrical bilaterally. The pertinent diagnosis was intermittent lumbar sensory radiculopathy of the lower extremities. Analysis The veteran would be entitled to an evaluation in excess of 20 percent if he had more than moderate limitation of motion of the lumbar spine. The record shows, however, that the veteran has been less than cooperative at the time of the various examinations afforded him. For example, at the time of the March 1997 examination the examiner described the veteran as a pain magnifier and opined that this made it most difficult to obtain assessment of the effect of the veteran's symptoms on his disability. The examiner commented that it was likely that there was no more than mild impairment. Specific notation was made more than one time that the veteran was observed to have better motion of the lumbar spine, and was able to get on and off the examining table, and to perform other movements. Notation was made that an X- ray study of the lumbar spine in 1997 was entirely normal. Also, when accorded neurological testing by VA in March 1998, while the veteran was given a diagnosis of intermittent lumbar sensory radiculopathy on the lower extremities, it was indicated that the neurological examination was normal. Diagnostic studies were also reported as normal. In view of the comments made by the examiners and the findings reported on the several examinations accorded the veteran since his service discharge, the Board cannot conclude that the veteran has been shown to have more than moderate limitation of motion at any time since service discharge. An evaluation in excess of 20 percent under Diagnostic Code 5295 would require a showing of severe lumbosacral strain, 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 arthritic changes or narrowing or irregularity of joint spaces; or some of these manifestations with abnormal mobility on forced motion. Throughout the period since service connection was granted, the veteran's spine has been found to be in good alignment. There have been no reports of listing, and as discussed above, it has not been shown that he has had any more than moderate limitation of forward flexion. Abnormal mobility has not been reported in any other medical records since service. Therefore, the veteran would not be entitled to an evaluation in excess of 20 percent under Diagnostic Code 5295, for any period since service connection was established. An evaluation in excess of 20 percent under Diagnostic Code 5293, would require that the veteran have severe or pronounced intervertebral disc syndrome at some point since service connection was established. As noted above, recent neurological testing was essentially negative except for a notation of only intermittent lumbar sensory radiculopathy of the lower extremities. This is not indicative of a severe intervertebral disc disease. Other findings reported on the examinations since service reflect that the veteran has good motor strength, no clonus, and no pathological reflexes. Given the relatively few abnormal findings, the Board is unable to conclude the veteran has had more than moderate intervertebral disc disease during any period since the grant of service connection. The veteran could receive an increased evaluation under any of the aforementioned diagnostic codes for additional limitation of motion resulting from functional impairment. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. However, as has been noted above, the various examinations accorded the veteran since service have provided no evidence of atrophy or disuse. Although the veteran has referred to constant pain in the low back since service, the severity of the pain he experiences has been called into question by at least one examiner. The Board is unable to conclude on the basis of this record, that there is any additional loss of motion due to functional impairment. Ultimately, the Board finds that the veteran is not entitled to an evaluation in excess of 20 percent during any period since service connection was established for his lumbosacral strain. ORDER Entitlement to an initial rating in excess of 20 percent for lumbosacral strain is denied. Mark D. Hindin Member, Board of Veterans' Appeals