Citation Nr: 0005032 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 93-24 202A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for right hand disorder. 2. Entitlement to an initial evaluation in excess of 40 percent for degenerative disc disease, with disc herniation at the L4-L5 level. 3. Entitlement to an initial evaluation in excess of 10 percent for chondromalacia, right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. A. McDonald, Counsel INTRODUCTION The veteran served on active duty from November 1979 to September 1983, and from March 1985 to April 1992. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from the Department of Veterans Affairs (hereinafter VA) regional office in Atlanta, Georgia (hereinafter RO). In addition to the issues currently before the Board, the veteran filed a notice of disagreement to the assignment of an initial noncompensable evaluation for a service-connected donor scar of the right groin, which was received by the RO in February 1993. A statement of the case was issued in September 1993, and the veteran filed a substantive appeal with regard to this issue in November 1993. However, the veteran withdrew this issue from appellate review at a personal hearing before the RO conducted in April 1994. See 38 C.F.R. § 20.204 (1999). The VA examination report dated in May 1994, raised the issue of entitlement to a total rating for compensation purposes based upon individual unemployability. This issue has not been developed for appellate review and is referred to the RO for appropriate disposition. FINDINGS OF FACT 1. The veteran's right hand was burned prior to entering service. 2. The preexisting right hand burn residuals underwent an increase in disability, not due to the natural progress of the disorder, while in military service. 3. Manifestations of the veteran's right knee disorder include pain under the patella, with tenderness, resulting in mild functional impairment, but with normal range of motion. 4. Manifestations of the veteran's degenerative disc disease, with disc herniation at the L4-L5 level, include persistent symptoms compatible with sciatic neuropathy, with characteristic pain and demonstrable muscle spasm, with little relief using the therapeutic modalities outlined, resulting in moderate to severe loss of function due to pain. CONCLUSIONS OF LAW 1. The veteran's preexisting right hand burn residuals were aggravated by active military duty. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.306 (1999). 2. The criteria for an initial evaluation in excess of 10 percent for chondromalacia, right knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5099-5024 (1999). 3. The criteria for an initial evaluation of 60 percent, but no more for degenerative disc disease, with disc herniation at the L4-L5 level, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon review of the record, the Board concludes that the veteran's claims on appeal are well grounded within the meaning of the statute and judicial construction. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); 38 U.S.C.A. § 5107(a). The VA therefore has a duty to assist the veteran in the development of facts pertinent to these claims. In this regard, the veteran's service medical records, post-service private clinical data, and VA medical records have been included in his file. Upon review of the entire record, the Board concludes that the data currently of record provide a sufficient basis upon which to address the merits of the veteran's claims and that he has been adequately assisted in the development of these issues. I. Right Hand The veteran's commission examination dated in September 1979, for his first period of service reported amputation of one and one/third joint of the right index finger. It was noted that the veteran was right handed. A burn scar on the right anterior forearm was also found. Burn scars on his hands were not reported. However, a clinical entry dated in December 1980, reported that the veteran burned his hands at the age of 9 months from a gas heater, and had contractures at the proximal phalangeal skin fold on the left third and fourth fingers, and the right second through fifth fingers at the time of the examination. The examiner noted that the veteran was missing the distal phalanx of the right second finger. The assessment was skin and questionable tendon contractures. In June 1981, a history of burns to both palms was reported at the age of 8 months on a gas heater. Examination found skin contracture of the long and ring fingers of the right hand, as well as the web space. Sensation was within normal limits. Mild flexion contracture of the left ring finger was also found. A hospital record dated August 1981, reported that the veteran underwent release of the right palmar burn scar contracture and application of full-thickness skin graft from the right groin. On admission, the veteran was unable to fully abduct his fingers or to spread the hand. Post- operatively, there was a superficial scar formation over the graft. Physical therapy of the right hand was provided, and the veteran gained full extension of fingers from the metacarpophalangeal to the distal phalanx, although it was noted that there was a digital contracture of the distal palm. The diagnoses included burn scar contracture of both palms, right greater than left. Subsequent to discharge from the veteran's first period of service, a VA examination conducted in April 1984, reported a history of burns to his right palm and right medial forearm at the age of 8 months. It was also noted that at the age of 2 years, the veteran dropped an axe on his index finger, amputating the digit at the distal interphalangeal joint. It was noted that the veteran underwent lysis of the significant flexion contracture of the index finger and release of the palmar flexion contracture with skin grafting while in service in 1981. The veteran complained that he had slight flexion contracture in the digits and was stiff in the proximal interphalangeal joint of the finger. He also complained that the skin graft was disfiguring and resulted in diminished sensation. Examination revealed a "nicely healed, but hyper-pigmented" skin graft traversing the distal palm, distal to the distal palmar crease. There was extension of the graft into the index finger remnant. Opposition of the thumb to the index remnant tip was "nicely" performed and held, and opposition of the thumb to the middle, ring, and little fingertips was normally held and performed. Grip was good without protrusion of the digits. An x-ray of the right hand indicated that the digits of the right hand were intact, the cartilagenous joint spaces were normal, and the wrist and metacarpals were within normal limits. The diagnoses included a neonatal burn of the right palm and right forearm with scar, and amputation through the distal interphalangeal joint of the right index finger, existed prior to service entrance; and service era skin grafting and release of burn contractures, right hand, good result. An entrance examination for the veteran's second period of service is not of record. Service medical records for the veteran's second period of active duty, include a periodic examination dated in June 1984. No abnormalities of the right hand were reported; however, it was noted that the veteran burned his right hand at the age of 26 years. A periodic examination dated in April 1986, reported a scar to the right lower abdomen, secondary to a skin graft for the amputation of the right distal 1/3 index finger. No other abnormalities of the right hand were reported. In January 1990, a periodic examination found a partial amputation of the right 1/3 of the index finger and partial contracture secondary to burns to both palms, right greater than the left. A service discharge examination is not of record. A VA examination conducted in May 1992, reported complaints of periodic spasm in right forearm and stiffness on the balls of the hands. The skin area of the graft was noted as dark colored when compared to the surrounding skin. The third, fourth, and fifth fingers of the right hand were angulated at 10 degrees at the middle interphalangeal joint. The diagnoses included residuals of a burn, right palm, with a skin graft. The veteran testified before the RO in April 1994, that he did not have any problems with his right hand until he sought treatment for it in service. He stated that the lifting in service caused his forearm to ache, as well as cramping in his hand that prevented his fingers from opening. The veteran testified that the preexisting injury to his hand was aggravated by service and by the surgery performed in service. He further stated that he did not have full extension of his hand and the calluses on his hands were worse than before the surgery. The veteran noted that the skin around the graft "tingled" and he had pain in his hand. A VA outpatient treatment record dated in April 1994, reported a well-healed full-thickness skin graft, with slight contracture at the metacarpophalangeal joint. A VA examination conducted in May 1994, reported complaints of cramping in the right forearm, calluses on the right palm, and pain, secondary to the skin graft in service. Examination found a deep, large scar in the right distal forearm. The tip of the right index finger was missing. A notable, mild flexion contracture was found in digits 3, 4, and 5. Multiple thick callous formations at the metacarpophalangeal joint area or base of the fingers at digits 2, 3, 4, and 5 were shown. There were also multiple hypopigmented and hyperpigmented changes present. When asked, the veteran was unable to straighten the fingers and lacked complete extension; however, it was noted that the veteran could nearly extend all the fingers to a normal anatomic position. Decreased strength with grip was reported. The veteran complained of subjective discomfort when asked to flex and extend the fingers. The diagnoses included a history of a palmar scar, with reconstructive grafting resulting in contractures of digits 3, 4, and 5, with multiple areas of callus. Thereafter, a VA examination dated in March 1997, reported that the only treatment the veteran had received for his right hand subsequent to service discharge was emollients to soften the scar and hand splints. The veteran stated that the surgery in service "worked" for a year, but then the hand began to retract, and the middle and ring fingers became numb. It was noted that the veteran had pain, loss of motion, and loss of dexterity in his right hand. The graft site was reported as very dark. Contractures of all four fingers were found. Grip strength was diminished to 3/5. The scar and contractures were tender. The veteran could oppose all fingertips to the tip of the thumb. The index and middle finger flexed to 1 centimeter from the palm and crease. The diagnoses were status post burn scar, right hand; status post scar release and skin graft; residual pain, loss of motion, and loss of grip strength; and right index finger amputated at middle phalanx. The examiner opined that there was not "an answer to question of disability due to burn or due to surgery while on active duty." Generally, veterans are presumed to have entered service in sound condition as to their health. See 38 U.S.C.A. § 1111; Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of sound condition provides: [E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; see also 38 C.F.R. § 3.304(b). This presumption attaches only where there has been an induction examination in which the later-complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports" and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. In the present case, the veteran's commission examination dated in September 1979, for his first period of service reported amputation of one and one/third joint of the right index finger and a burn scar on the right anterior forearm. Burn scars on his hands were not reported, nor were contractures of the right fingers. Accordingly, the presumption of sound condition attaches to the veteran's right hand. Nevertheless, medical reports, both in service and subsequent thereto, have recorded a history provided by the veteran, that he burned his hands at a young age. The Board notes that a periodic examination dated in June 1984, during the veteran's second period of active duty for service, reported that the veteran burned his right hand at the age of 26 years; however, the history provided by the veteran at the time of this examination was that he had undergone skin grafts for a burn on the right hand at the age of 26 years. The Board is cognizant that a lay person's history alone of having had a preexisting disorder does not constitute the type of evidence that can serve as the Board's finding that the disorder preexisted service. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). However, the veteran's lay testimony is competent to establish the occurrence of an injury. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The veteran has never contended that he burned his hands during service; indeed, he testified at a personal hearing before the RO that his burns were incurred prior to service entrance, consistent with all previous histories given to healthcare practitioners. Accordingly, the Board finds clear and unmistakable evidence that the veteran burned his right hand prior to his first period of service. A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The United States Court of Appeals for Veterans Claims (hereinafter Court) has clarified that intermittent or temporary flare-ups during service of a preexisting injury or disease do not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Rather there must be a permanent increase in the underlying disability. Id. In challenging entitlement to such an award, the presumption may be rebutted by evidence that the increase in disability was due to the natural progression of the disease. 38 C.F.R. § 3.306(b). Rebutting the presumption requires a specific showing, based on "clear and unmistakable evidence," that the increase in disability was due to the natural progress of the disease. Id. VA regulations provide that the usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service- connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). Thus, the only treatment effects that are not considered service- connected are those that improved the condition and lowered the level of disability. See Verdon v. Brown, 8 Vet. App. 529 (1996). If a preexisting disability was more severe after in-service medical treatment, the increase in the level of disability would be service-connectable. Id. Accordingly, where a pre-existing disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated the disability so that it is no more disabling than it was at entry into service, the presumption of aggravation does not attach as to that disability. Id. The evidence of record reveals that the veteran's preexisting burn injury to his right hand was more disabling on service discharge than on entrance. Although not noted on the veteran's entrance examination into his first period of service, the Board has found clear and unmistakable evidence that the veteran burned his right hand prior to his first period of service. The veteran testified at his personal hearing that he burned his hands prior to service entrance; however, the physical demands of his military duty caused pain and cramping in his right hand, as well as contractures of the fingers. Indeed, the first evidence of record of contractures of the right fingers was during the veteran's first period of military service. Consequently, the veteran underwent surgery for release of the right palmar burn scar contracture and application of full-thickness skin graft from the right groin. Physical therapy of the right hand was provided, and the veteran gained full extension of fingers from the metacarpophalangeal to the distal phalanx, although it was noted that there was a digital contracture of the distal palm. A discharge examination from the veteran's first period of service is not of record; however a VA examination conducted in April 1984, found a neonatal burn of the right palm and right forearm with scar, and amputation through the distal interphalangeal joint of the right index finger, existed prior to service entrance; and service era skin grafting and release of burn contractures, right hand, good result. The veteran's service entrance examination for his second period of service is not of record. However, a periodic examination conducted in January 1990, during the veteran's second period of military duty found partial contracture secondary to burns to both palms, right greater than the left. A discharge examination from the veteran's second period of service is not of record; however a VA examination conducted in May 1992, a month after service discharge, reported complaints of periodic spasm in right forearm and stiffness on the balls of the hands. The skin area of the graft was noted as dark colored when compared to the surrounding skin. The third, fourth, and fifth fingers of the right hand were angulated at 10 degrees at the middle interphalangeal joint. The diagnoses included residuals of a burn, right palm, with a skin graft. The medical evidence subsequent to this date reveals continued complaints of right hand pain and disfigurement, with objective findings of limitation of motion and loss of grip strength, as well as hyperpigmented and hypopigmented changes throughout the scar, with callous formations. The Board therefore finds that the veteran's preexisting right hand burn residuals underwent an increase in disability while in service. Accordingly, the presumption of aggravation attaches to the veteran's claim of entitlement to service connection for residuals, status post burn scar release and skin graft, right hand. In challenging entitlement to such an award, the presumption may be rebutted by evidence that the increase in disability was due to the natural progression of the disease. 38 C.F.R. § 3.306(b). Rebutting the presumption requires a specific showing, based on "clear and unmistakable evidence," that the increase in disability was due to the natural progress of the disease. Id. The Board finds that the record on appeal is devoid of any such evidence. Although a VA examiner opined in March 1997, that there was not "an answer to the question of disability due to burn or due to surgery while on active duty," the Board does not find this evidence to be of the kind necessary to rebut the presumption. As clear and unmistakable evidence that the increase in disability was due to the natural progress of the disease has not been shown, the presumption of aggravation has not been rebutted. Accordingly, service connection for residuals, status post burn scar release and skin graft, right hand, is warranted. II. Right Knee By a rating decision dated in December 1992, the RO granted service connection for chondromalacia of the right knee, and a 10 percent disability rating was assigned under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5099-5024. When an unlisted residual condition is encountered which requires an analogous rating, the first two digits of the diagnostic code present that part of the rating schedule most closely identifying the bodily part or system involved, with a "99" assigned as the last two digits representing all unlisted conditions. 38 C.F.R. § 4.27 (1999). Accordingly, this rating contemplates, by analogy, chondromalacia and is rated based on limitation of motion of the affected joint, in this case, the right knee. The normal range of motion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II (1999). A 10 percent rating is warranted for limitation of motion characterized by flexion to 45 degrees or extension limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (1999). The next higher evaluation of 20 percent is warranted for flexion limited to 30 degrees or extension limited to 15 degrees. Id. The veteran's service medical records reveal that he complained of pain in the right knee in 1986. A meniscal injury was found and he was issued a knee brace. The veteran continued to complain of pain, and in January 1988, the assessment was chondromalacia, with mild weakness in the right quadricep when compared to the left. The veteran complained of pain with stair climbing, jumping, and running. Range of motion of the right knee was within normal limits, and the quadriceps were reported as well developed. Crepitus was shown. An x-ray of the right knee in May 1988, revealed no significant abnormality. A periodic examination in 1990, reported no abnormality of the right knee. A Medical Evaluation Board dated in August 1991, reported a history of patellofemoral syndrome in 1986, that was not a current problem. Subsequent to service discharge, a VA examination conducted in May 1992, reported complaints of pain and difficulty ascending stairs. The veteran stated that he could not run, as the right knee felt weak. No swelling was found, but crepitation was reported. Range of motion of the right knee was 0 degrees extension, and 117 degrees flexion. The diagnoses included chondromalacia, right knee. X-rays of the right knee dated in May 1992 and March 1994, indicated no abnormal findings. Thereafter, a VA examination conducted in May 1994, revealed tenderness about the right patella. There were no bony abnormalities noted, and no effusion or heat. A normal range of motion was reported. McMurray's and Drawer signs were negative. An x-ray of the right knee was reported as within normal limits. The diagnoses included a finding of an essentially unremarkable examination of the knees, with a history of chondromalacia patella. The examiner stated that although the veteran had received a prior diagnosis of chondromalacia patella, he had not received an arthroscopic evaluation, magnetic resonance imaging scan, or surgical evaluation to properly diagnosis that condition. The veteran testified at a personal hearing before the RO in April 1994, that he had throbbing pain in his right knee and wore a brace on his knee. He stated that he had fallen due to his knee giving out. He further stated that his knee swelled about once a month, for about four or five days. A VA outpatient treatment record dated in July 1994, reported no synovitis of the knees, and the drawer sign and McMurray's test were negative. Thighs were equal and symmetric. X-rays of the right knee indicated no abnormal findings. A VA examination conducted in March 1997, reported complaints of right knee weakness and pain. It was reported that the veteran walked without a limp, and could heel and toe walk, but squat was limited to 50 degrees, due to back pain. There was no swelling or deformity of the right knee noted. Manipulation of the right patella was painful. Range of motion of the right knee was 0 to 140 degrees. The examiner stated that chondromalacia patella of the right knee was not found. The diagnosis was right patello-femoral pain syndrome. A VA examination conducted in August 1997, reported pain under both kneecaps. The veteran's patellae were tender. Range of motion was 0 to 140 degrees, bilaterally. The examiner opined that the veteran had mild loss of function due to pain in his knees. The evidence of record reveals that at the time of the assignment of the initial rating in 1992, range of motion of the right knee was 0 degrees extension, and 117 degrees flexion. The veteran complained of weakness and pain in his right knee. However, since that time, the range of motion of the right knee has been reported as normal. As a 20 percent rating is warranted for flexion limited to 30 degrees or extension limited to 15 degrees, an initial rating in excess of 10 percent based on range of motion of the right knee is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Additionally, as the medical evidence of record has failed to show lateral instability or recurrent subluxation of the right knee, the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5257 (1999) are not for application. Manifestations of the veteran's right knee disorder include pain under the patella, with tenderness, and normal range of motion. Accordingly, the Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 (1999). The evidence of record indicates that these manifestations result in mild functional impairment. Accordingly, the initial evaluation of 10 percent is proper. However, the objective evidence of record does not indicate weakened movement, swelling, disuse atrophy, or instability. Fatigability and incoordination have not been shown by the medical evidence. Additionally, although the examiner in August 1997, opined that the pain shown produced mild limitation of function, this functional limitation was not expressed in terms of additional limitation of motion. In reviewing the veteran's medical examinations of his right knee since 1992, range of motion has been consistently reported as normal. No additional limitation of motion of extension has been shown due to flare-ups. In this regard, the Board has reviewed all the evidence of record, to include the most recent VA outpatient treatment records and all VA evaluations of the veteran's right knee. None of these treatment records or examinations would support the conclusion that the right knee causes the veteran to fall frequently, or even occasionally. There is no pattern of incoordination associated with the service-connected right knee disorder, nor is there an indication that this disability could cause more than a mild impairment in the veteran's ability to function. Accordingly, an initial evaluation in excess of 10 percent under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 is not warranted. 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 concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board notes that this claim is based on the assignment of an initial rating for a disability following an initial award of service connection for that disability. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that the rule articulated in Francisco did not apply to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Id.; Francisco, 7 Vet. App. at 58. The Board has recharacterized this issue on appeal in order to comply with the recent opinion by the Court in Fenderson. The Court held in Fenderson, in pertinent part, that the RO had never properly provided the appellant with a statement of the case concerning an issue, as the document addressing that issue "mistakenly treated the right-testicle claim as one for an '[i]ncreased evaluation for service[-]connected . . . residuals of surgery to right testicle' . . . rather than as a disagreement with the original rating award, which is what it was." Fenderson, 12 Vet. App. at 132 (emphasis in the original). The Court then indicated that "this distinction is not without importance in terms of VA adjudicative actions," and remanded the matter for the issuance of a statement of the case. Id. As in Fenderson, the RO in this case has also misidentified the issue on appeal as a claim for an increased disability rating for the veteran's service-connected right knee disorder, rather than as a disagreement with the original rating award for this disorder. However, the statement of the case and the supplemental statements of the case have provided the veteran with the appropriate, applicable law and regulations and an adequate discussion of the basis for the RO's assignment of an initial disability evaluation for the veteran's service-connected right knee disorder. Consequently, the Board sees no prejudice to the veteran in recharacterizing the issue on appeal to properly reflect the veteran's disagreement with the initial disability evaluation assigned to his service-connected right knee disorder. See Bernard v. Brown, 4 Vet. App. 384 (1993). As noted above, the RO granted service connection and originally assigned a 10 percent evaluation for a right knee disorder the date that the veteran's claim of entitlement to service connection for this disorder was received, i.e., April 6, 1992. See 38 C.F.R. § 3.400 (1999). After review of the evidence, there is no medical evidence of record that would support a rating in excess of 10 percent for a right knee disorder at any time subsequent to the date that the veteran's claim of entitlement to service connection for a right knee disorder was received, i.e., April 6, 1992. Accordingly, an initial rating in excess of 10 percent for a right knee disorder is not warranted. III. Back Disorder By a rating decision dated in December 1992, the RO granted service connection for degenerative disc disease with disc herniation, L4-L5, and a 20 percent disability rating was assigned under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5293. By a rating decision dated in April 1995, the rating for the veteran's back disorder was assigned a 40 percent rating, under the provisions of Diagnostic Code 5293. This rating contemplates severe intervertebral disc syndrome, with recurrent attacks, and intermittent relief. Id. The veteran's service medical records reveal complaints of recurrent low back pain on a periodic examination in June 1984, but no disorder was found on examination. The veteran incurred a low back strain in February 1989, manifested by pain and spasm. He continued to complain of low back pain and in September 1989, a component of S1 radiculopathy was found. A computerized tomography scan conducted in November 1989, demonstrated the presence of degenerative disease involving the facet joints that resulted in hypertrophy at the articular margins which compromises the canal caliber. At the L4-5 level, diffuse bulging was evident. The clinical diagnosis in December 1989 was lumbar radiculopathy. A periodic examination conducted in January 1990, found decreased range of motion of the lumbar spine, with spasm. A magnetic resonance imaging scan performed in March 1990, indicated degenerative disc disease with a fairly large disc herniation at the L4-5 level, mostly centrally, but slightly more toward the left. The veteran continued to complain of low back pain and on neurosurgical consultation in June 1991, it was noted the veteran had occasional numbness and pain in the right leg. A Medical Evaluation Board was convened in August 1991. A history of back pain beginning in 1986 was reported, with an increase in pain and a radicular component noted in 1989. On examination, the lumbar spine had full range of motion without spasm. Straight leg raising was negative to 90 degrees, bilaterally. Lasegue's and Patrick's signs were negative. Motor strength was 5/5 in both legs. Sensory was intact for pinprick, light touch, and proprioception. Deep tendon reflexes were 2 plus, and symmetrical, bilaterally. Romberg was negative and it was noted that the veteran's gait was normal. The final diagnoses were large herniated nucleus pulposus at the L4-5 interspace level, and spinal stenosis at the L4-5 interspace level. Subsequent to service discharge, a VA examination conducted in May 1992, reported complaints of pain on bending, or standing after sitting "too long." The veteran reported periodic spasm which radiated to his right thigh and knee. On examination of the lumbosacral spine, mild spasm was shown. Forward flexion was noted as 85 degrees, extension was to 35 degrees, and lateral flexion was 35 degrees. Muscle atrophy of the right thigh was reported. The diagnoses included degenerative disc disease, with a large disc herniation at the L4-5 level. An x-ray of the lumbosacral spine indicated no spondylosis or spondylolisthesis, and with no evidence of instability. Slight sclerotic changes of the peri-articular bones of the S1 joints were reported. A computerized tomography scan of the lumbar spine indicated a centrally herniated disk lesion at L4-5, with narrowed neural foramen. VA outpatient treatment records from 1993 to 1994, show continued complaints of low back pain. In November 1993, spinal spasm was shown, with flexion limited to 20 to 30 degrees, and extension limited to 10 to 15 degrees. There were no motor or sensory deficits in the lower extremities. An antalgic gait was reported. The veteran testified at his personal hearing before the RO in 1994, that he had severe pain across his low back, and experienced spasm which radiated down both legs. He stated that he also experienced numbness in his right leg and had been given a brace for his back by the VA. Approximately six or seven times a year, the pain in his back caused him to remain in bed for five to seven days. At the times of these attacks, he was unable to go the VA Medical Center as he was unable to move. The veteran testified that he had trouble walking more than a quarter mile and had trouble ascending stairs. He also reported that he had stumbled walking across a level floor. A VA examination conducted in May 1994, reported decreased range of motion with a flexion of 30 degrees, and a loss of extension beyond 5 degrees. Left lateral bending was 20 degrees, and right lateral bending was 10 degrees. Deep tendon reflexes in the lower extremities were symmetrical, as was the extensor hallucis longus. Straight leg raising was positive at 30 degrees on the right. There was no asymmetry in the musculature of the lower extremities and sensorium was normal. The veteran's gait was normal. There was no swelling or deformities of the back. An x-ray of the spine indicated a slight narrowing of the L4-5 intervertebral disks, suggestive of mild degenerative disc disease. A computerized tomography scan of the lumbar spine revealed a pattern of herniated disk lesion at L4-5, with smoothly marginated soft tissue density impinging upon the anterior thecal sac and neural foramina causing narrowed neural foramina, bilaterally. Mild degenerative arthritic change involving articular facet joints at L4-5 was also shown. The diagnoses included chronic low back pain, with probable herniated disk at L4-5. A private medical report dated in January 1996, reported 5/5 strength in the upper and lower extremities, except mild weakness with ankle eversion on the right, with no focal sensory deficits. Straight leg raising was negative, bilaterally. Lumbar spine flexion was to 70 degrees, and produced considerable low back pain at L4-5 and L5-S1 midline. Lateral bending was 30 degrees, bilaterally. X- rays indicated evidence of significant disc space narrowing at L4-5 and L5-S1. A neuroforminal narrowing was also noted at L4-5 and L5-S1. A spondylitic pars defect at L5 was reported. The assessments were degenerative disc disease at L4-5 and L5-S1; herniated nucleus pulposus at L4-5 by history, low back pain with bilateral lower radiculopathy; and pars defect L5, left. Thereafter, in May 1996, the private physician noted that an magnetic resonance imaging scan showed evidence of a large disc herniation with compression of the thecal sac and both nerve roots, more pronounced on the left. The private physician noted that steroidal and nonsteroidal therapy provided no relief, and therefore the veteran required decompressive diskectomy at L4-5 foraminotomies and a bilateral L5 nerve root exploration. Thereafter, in May 1996, the veteran underwent a decompressive diskectomy at the L4-5 level, central decompression at the L4-5 level, a bilateral L5 nerve root exploration, and bilateral L4-5 foraminotomies. In June 1996, the private physician stated that the veteran had intervertebral syndrome, with persistent symptoms compatible with sciatic neuropathy. A VA examination conducted in March 1997, reported complaints of tingling at the L5 level on the right, as well as pain and stiffness. The examiner reported a slight stoop in posture, but no fixed deformity. Spasm of the back was noted. Forward flexion while standing was to 25 degrees, sitting was to 90 degrees. Backward flexion was to 30 degrees, as was left lateral flexion. Right lateral flexion, rotation to the left, and rotation to the right were each to 35 degrees. There was objective evidence of pain on motion. A VA examination conducted in August 1997, reported the veteran's carriage, posture, and gait were normal. The veteran stated that since his surgery, he was unable to bend, wore a back brace, and had pains and "pins and needles" in both legs, left greater than right. On examination, he could heel and toe walk, and could squat to 45 degrees due to back and knee pain. Muscle spasm was found. Flexion was to 15 degrees active, and 80 degrees passive, using the Reber trick. Extension was to 30 degrees; lateral flexion was 20 degrees, bilaterally; and rotation was 35 degrees, bilaterally. Normal strength of both legs and normal deep tendon reflexes were reported. The examiner stated that the veteran had moderate to severe loss of function due to pain. X-rays of the lumbosacral spine showed degenerative disc disease at the L4-5 level. The diagnoses included status post lumbosacral spine diskectomy. As noted above, a rating decision dated in April 1995, assigned an initial rating for the veteran's back disorder of 40 percent, under the provisions of Diagnostic Code 5293. This rating contemplates severe intervertebral disc syndrome, with recurrent attacks, and intermittent relief. 38 C.F.R. § 4.71a. The next higher and maximum rating under this diagnostic code, 60 percent, is warranted for 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 diseased disc, with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293. Prior to the veteran's surgery in 1996, his private physician stated that the veteran had complaints of persistent lower extremity paresthesias, with little relief using the therapeutic modalities outlined. The veteran had obvious tension signs and positive straight leg raisings. The physician concluded that the veteran had intervertebral syndrome, with persistent symptoms compatible with sciatic neuropathy. Subsequent to the veteran's back surgery, he continued to complain of pain radiating to both legs. Range of motion was limited and muscle spasm was found. The VA examiner found that the veteran's service-connected back disorder resulted in moderate to severe loss of function due to pain. See 38 C.F.R. §§ 4.40, 4.45 (1999). Based on the evidence of record, the Board finds that the veteran's lumbosacral spine disability picture more nearly approximates the criteria required for a 60 percent rating. See 38 C.F.R. § 4.7 (1999). Accordingly, an initial evaluation of 60 percent for the veteran's service-connected back disorder is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5293. This issue on appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for the veteran's back disorder. Accordingly, the Board has recharacterized this issue on appeal in order to comply with the recent opinion by the Court in Fenderson. Although the RO misidentified this issue on appeal as a claim for an increased disability rating for the veteran's service- connected back disorder, rather than as a disagreement with the original rating award for this disorder, the statement of the case and the supplemental statements of the case have provided the veteran with the appropriate, applicable law and regulations and an adequate discussion of the basis for the RO's assignment of an initial disability evaluation for the veteran's service-connected back disorder. In addition, the veteran's pleadings herein clearly indicate that he is aware that his appeal involves the RO's assignment of an initial disability evaluation. Consequently, the Board sees no prejudice to the veteran in recharacterizing the issue on appeal to properly reflect the veteran's disagreement with the initial disability evaluation assigned to his service- connected back disorder. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the RO granted service connection and originally assigned a 20 percent evaluation for degenerative disc disease with disc herniation at the L4-L5 level as of the date of receipt of the veteran's claim for this disorder, i.e., April 6, 1992. See 38 C.F.R. § 3.400. Subsequent to this decision, the RO granted a 40 percent disability rating, effective as of April 6, 1992. As noted above, the Board has found that the evidence of record more nearly approximates the criteria required for a 60 percent rating, and therefore, that rating is appropriate. However, after review of the evidence, there is no medical evidence of record that would support a rating in excess of 60 percent for the disability at issue at any time subsequent to the day the veteran's claim of entitlement to service connection for this disorder was received, i.e., April 6, 1992. Id.; Fenderson v. West, 12 Vet. App. 119 (1999). A 60 percent disability rating is the maximum evaluation assignable under the provisions of Diagnostic Code 5293. Additionally, fracture of the vertebrae with cord involvement or complete ankylosis of the spine has not been shown to warrant a rating in excess of 100 percent under the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286 (1999). Accordingly, an initial evaluation of 60 percent, but no more, for degenerative disc disease, with disc herniation at the L4-L5 level is warranted. ORDER Service connection for residuals, status post burn scar release and skin graft, right hand, is granted. An initial evaluation in excess of 10 percent for chondromalacia, right knee, is denied. An initial evaluation of 60 percent for degenerative disc disease, with disc herniation at the L4-L5 level, is granted, subject to the laws and regulations governing the payment of monetary benefits. C. P. RUSSELL Member, Board of Veterans' Appeals