Citation Nr: 0006032 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 95-41 586 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating for degenerative disc disease of the lumbar spine, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD K. Johnson, Associate Counsel INTRODUCTION The veteran served on active duty from October 1964 to October 1967, and from January 1968 to January 1985. This matter came to the Board of Veterans' Appeals (Board) from a January 1994 rating action which denied a rating in excess of 40 percent for degenerative disc disease of the lumbar spine. FINDINGS OF FACT 1. All available relevant evidence necessary for disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's degenerative disc disease of the lumbar spine is manifested by chronic pain and mild radiculopathy, with recurring attacks intermittently relieved by medications and epidural steroid injections, and is no more than severely disabling. CONCLUSION OF LAW Under the schedular criteria, the veteran's degenerative disc disease of the lumbar spine is not more than 40 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, Diagnostic Code 5293 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran was afforded VA examinations in April 1992. The clinical findings on orthopedic examination showed deep tendon reflexes present at the ankles; knee reflexes could only be obtained by re-enforcement. No paravertebral lumbar muscle spasm was noted. Forward flexion was to 45 degrees, backward extension to 20 degrees, lateral flexion to 30 degrees bilaterally, and lateral rotation to 25 degrees bilaterally. Straight leg raising was positive to 45 degrees bilaterally, with objective evidence of pain on motion. The diagnosis was lumbosacral strain. On neurological examination, straight leg raising was positive at 20 degrees bilaterally. The diagnosis was chronic low backache developing over 20 years with ill-defined radiation into each leg, but no reflex changes and no definite loss of strength or sensation. The examiner noted that it was difficult to judge the intensity of pain in chronic situations, inasmuch as the most impressive diagnostic test was straight leg raising, which was difficult to judge. X-rays of the lumbar spine revealed narrowing of the L5-S1 intervertebral disc space with marginal spurring compatible with disc pathology at that level. The visualized bony structures were intact and otherwise remarkable. There was slight straightening of the normal lordotic curve. There was minimal spondylosis in the lower lumbar area at L5-S1 level. By rating action of September 1992, the RO granted an increased rating from 20 percent to 40 percent for the veteran's low back disability, effective February 1992. VA electromyography was performed in March 1993 to rule-out right lumbosacral radiculopathy. It was noted that nerve conduction studies/electromyography performed in January 1992 had demonstrated a single run of positive waves at the right L5 paraspinal level. The examiner concluded that the current study was abnormal, with electrophysiologic evidence of a right S-1 radiculopathy. On VA orthopedic examination of August 1993, the veteran complained of chronic back pain, with lower back spasms, and numbness and weakness going down both legs in no specific dermatomal distribution. On examination, he demonstrated 65 degrees of forward flexion, with 30 degrees of lateral bending in either direction, and 15 degrees of extension. Straight leg raising was positive bilaterally with diffuse paresthesia going into both legs not following a dermatomal distribution. Strength in the lower extremities was 5/5 globally. Deep tendon reflexes were absent bilaterally in the knees, and 1+ in the Achilles tendon. The diagnosis was degenerative disc disease, and the examiner noted that there were subjective signs and symptoms of paresthesia that did not fit a specific dermal distribution, and there was no objective evidence of it. X-rays did show evidence of disc disease. On VA neurological examination in August 1993, the veteran complained of chronic back pain which prevented him from performing any sort of strenuous activity; even sitting was difficult, particularly driving. On examination, the deep tendon reflexes in the lower extremities were brisk and symmetrical, without pathologic responses. Motor examination revealed 5/5 strength. Sensory examination appeared intact to all modalities. The diagnosis was degenerative disc disease of the lumbar spine with electrical evidence of L5-S1 radiculopathy bilaterally. In his February 1994 Notice of Disagreement, the veteran stated that his low back disability had worsened, and was characterized by constant pain, demonstrable muscle spasm, and sciatic neuropathy, with little intermittent relief, thus warranting a 60 percent rating under 38 C.F.R. Part 4, Diagnostic Code 5293. In his July 1994 Substantive Appeal, he argued that the medical evidence showed that he had pronounced intervertebral disc syndrome which supported a 60 percent rating. After VA electromyographic studies performed in June 1995 to rule-out lumbosacral radiculopathy, the examiner concluded that it was an abnormal study which was most consistent with mild bilateral S-1 radiculopathies. VA outpatient records show that the veteran started to receive epidural steroid injections subsequently in 1995. In November, it was noted that the last injection had provided relief of pain for 6 months. In December, he reported that the injection had not helped, and he was issued a TENS unit. In December 1996, the injections were noted to have provided 4 months of pain relief. The veteran currently received another injection, and the assessment was low back pain controlled with epidural steroid injections, although the examiner noted that he needed more frequent injections. On VA examination of March 1997, the veteran complained of chronic low back pain with numbness in the legs and feet which caused him to lose 7 days from work in the past year. He reported that the treatment of his condition had included physical therapy, various medications, and recent steroid injections every 5 to 6 months. He also used Feldene once daily for relief. He indicated that pain now radiated down both legs and was constant in nature, without flares, but was aggravated by overexertion and prolonged standing. The numbness and tingling in his legs and feet had reportedly worsened from 2 years ago. On current examination, the pain was located around L5-S1, where point tenderness was present. There was no paraspinal muscle spasm or evidence of pain on motion. Straight leg raises were positive up to 90 degrees, and the veteran claimed numbness around the bilateral forefoot areas distally, with the right upper leg and thigh areas being less sensitive than the left. Deep tendon reflexes were equal and active. Motion was limited, with 90 degrees of forward flexion, 25 degrees of backward extension, 30 degrees of lateral flexion, and 25 degrees of rotation. He could toe/heel walk, hop, squat and bear weight on each leg without objective evidence of pain. X-rays revealed degenerative disc disease associated with degenerative joint disease at L5-S1. The diagnosis was history of degenerative disc disease of the lumbosacral spine with X-ray evidence of disease. With respect to the guidelines provided by the U.S. Court of Appeals for Veterans Claims (Court) in the case DeLuca v. Brown, 8 Vet. App. 202 (1995), the examiner commented that any additional statements other than that mentioned in the above examination report would have to be of a purely speculative nature. II. Legal Analysis In this case, the Board finds that the veteran's claim is well-grounded. The Court has held that, when a veteran claims that a service-connected disability has increased in severity, the claim is well-grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is satisfied that all relevant facts have been properly developed, and that the VA has fulfilled its duty to assist the veteran as mandated by 38 U.S.C.A. § 5107(a) and 38 C.F.R. § 3.103(a) (1999). Appellate review discloses that the RO has also considered the propriety of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999), finding that exceptional or unusual circumstances such as the frequent need for hospitalization or marked interference with employment were not present to a degree warranting submission of this case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service. The Board concurs in this determination, and the veteran has not sought review of this decision. Under the applicable criteria, disability evaluations are based upon the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155. 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. § 4.7. Consideration is to be given to all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Although a review of the recorded history of a disability should be conducted in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Under the circumstances, this Board decision has included a review of the entire record, but the focus will be on the most recent medical findings regarding the service-connected disability at issue. Service connection is currently in effect for intervertebral disc syndrome under the provisions of 38 C.F.R. Part 4, Diagnostic Code 5293. Under this Diagnostic Code, a 40 percent rating is warranted for severe intervertebral disc syndrome with recurring attacks with intermittent relief. A 60 percent rating requires pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy (i.e., with characteristic pain and demonstrable muscle spasm and an absent ankle jerk or other neurological findings appropriate to the site of the diseased disc) and little intermittent relief. A maximum rating of 40 percent is also warranted under Diagnostic Code 5295 for severe lumbosacral strain, and under Diagnostic Code 5292 for severe limitation of motion of the lumbar spine. Ratings in excess of 40 percent are not provided under those Codes. Ankylosis of the lumbar segment of the spine at a favorable angle warrants a 40 percent rating. A 50 percent rating requires fixation at an unfavorable angle. 38 C.F.R. Part 4, Diagnostic Code 5289. In DeLuca, the Court held that, in evaluating a service- connected disability, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40, and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. Moreover, the Court held that a Diagnostic Code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 (1999) does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. Although Code 5293 is not based on limitation of motion, the VA General Counsel has held that, when a veteran receives less than the maximum evaluation under Code 5293 based on symptomatology which includes limitation of motion, consideration must be given to 38 C.F.R. §§ 4.40 and 4.45, even though the rating corresponds to the maximum rating under another Code pertaining to limitation of motion. VAOPGCPREC 36-97. Regarding the application of the schedular rating criteria and DeLuca, the Board finds that the evidence in this case does not indicate that a rating in excess of 40 percent for the veteran's back disability is warranted. The range of the veteran's low back motion recorded on the examinations in 1992, 1993, and 1997 indicates that such limitation is no more than slight-to-moderate, and on the 1997 examination the examiner commented that additional statements regarding DeLuca considerations would only be speculative in nature. As those clinical findings clearly do not show unfavorable ankylosis of the lumbar spine, a 50 percent rating under Code 5289 is not warranted. Neither do the clinical and electromyographic findings in this case show pronounced intervertebral disc syndrome with persistent symptoms with little intermittent relief as is required for assignment of a 60 percent rating under Code 5293. The record does reflect the veteran's ongoing problems with chronic back pain and radiculopathy in both lower extremities, confirmed by the electromyography conducted in 1995, but key clinical findings of demonstrable muscle spasm, an absent ankle jerk, and other neurological findings appropriate to the site of the diseased disc, with little intermittent relief, required to support a 60 percent rating under that Code have clearly not been shown by the record from 1992 to 1997. Specifically, deep tendon reflexes were present at the ankles, and there was no lumbar muscle spasm on VA examination of April 1992. Although deep tendon reflexes were absent in the knees on VA orthopedic examination of August 1993, they were present in the Achilles tendon, and lower extremity strength was 5/5 bilaterally; on neurological examination the same day, the deep tendon reflexes in the lower extremities were brisk and symmetrical, without pathological responses. VA medical records of November 1995, December 1996, and March 1997 clearly demonstrate that epidural steroid injections and other medications were providing the veteran several consecutive months of intermittent relief from his low back symptoms. The most recent 1997 lumbar clinical findings showed no paraspinal muscle spasm or evidence of pain on motion, and deep tendon reflexes were equal and active. As the preponderance of the evidence is against the veteran's claim in this case, a rating in excess of the currently- assigned 40 percent for degenerative disc disease of the lumbar spine is not warranted, and the appeal is denied. ORDER A rating in excess of 40 percent for degenerative disc disease of the lumbar spine is denied. THOMAS A. PLUTA Member, Board of Veterans' Appeals