BVA9504828 DOCKET NO. 93-05 829 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an increased rating for lumbosacral strain, currently rating as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Associate Counsel INTRODUCTION The veteran served on active duty from October 1969 to March 1971. This appeal arises from a February 1991 rating decision of the Providence, Rhode Island, Regional Office (RO). In that decision, the RO confirmed the current 40 percent rating for a back disorder. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected back disability has worsened over time, and that a higher disability rating is now warranted. He reports that he has pain radiating from his lower back down his legs, and that the pain is almost constant. He also contends that his back disability would be more appropriately rated under Diagnostic Code 5293, for intervertebral disc syndrome, rather than Diagnostic Code 5295, for lumbosacral strain. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against a rating in excess of 40 percent for lumbosacral strain. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the originating agency. 2. The veteran's low back disability is manifested by marked limitation of forward bending, degeneration of the lower lumbar facets, disc space narrowing, muscle spasm, and hypesthesia of the left thigh, with good strength and intermittent relief between recurring severe attacks. 3. Neither an exceptional nor an unusual disability picture has been presented so as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent for lumbosacral strain and intervertebral disc syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, Part 4, Codes 5293, 5295 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). We are also satisfied that all relevant facts have been properly developed so that further assistance to the veteran is not required. 38 U.S.C.A. § 5107 (West 1991). Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1994). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45. 4.59 (1994). In the course of his appeal, the veteran has raised a question as to whether his service-connected back disability should be evaluated under Diagnostic Code 5295, or Diagnostic Code 5293. The disability is currently evaluated under Diagnostic Code 5295, for lumbosacral strain. The disability is assigned the maximum disability rating in the rating schedule under that code, 40 percent. The criteria for a 40 percent rating under Code 5295 contemplates a severe condition, with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in 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. Diagnostic Code 5293, applicable to rating intervertebral disc syndrome, provides for a maximum schedular rating of 60 percent, when the condition is pronounced, 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; and with little intermittent relief. A 40 percent rating is provided under Code 5293 if the condition is severe, with recurring attacks, and with intermittent relief. Moderate, recurring attacks warrant a 20 percent rating; and a mild condition warrants a 10 percent rating. The Board also notes that the veteran's lumbar spine disability includes arthritis, which is rated according to limitation of motion under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5010 (1994). Limitation of motion of the lumbar spine warrants a 40 percent disability rating when it is severe, a 20 percent disability evaluation when it is moderate, and a 10 percent disability rating when the limitation of motion is slight. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1994). Service medical records document outpatient treatment for low back pain. The veteran reported that the pain began after a fall from a ladder. The report of an orthopedic consultation in October 1970 indicated that the veteran reported pain radiating down the back of his right leg. Probable slight narrowing of the lumbosacral joint was noted on x-ray. The examiner's impression was probable degenerative disc disease of the lumbosacral joint; and a question of nerve root irritation on the right, at S1. The veteran reported that he sought treatment from a chiropractor beginning in 1983. The chiropractor, Chester T. Baron, D.C., reported in 1989 that the veteran's symptoms included severe muscle spasm, an antalgic lean, bilateral positive straight leg raise tests, and severe lumbosacral pain. The veteran received VA outpatient treatment for his back. In an April 1988 orthopedic consultation, the examiner's impression was reported as chronic low back pain secondary to degenerative disc disease. On examination in December 1989, the veteran reported that his condition was getting worse. He reported back pain, usually radiating down both legs, and difficulty bending. Examination revealed a decreased range of motion of the spine. The report of a May 1988 VA orthopedic examination indicated some scoliosis, and moderate bilateral muscle spasm. The veteran's range of motion was limited to 35 degrees of forward flexion, 25 degrees of lateral flexion, 30 degrees of rotation, and 15 degrees of extension. Lumbar spine x-rays revealed scoliosis to the left, and pronounced narrowing of the L5-S1 disc space, with vacuum phenomenon and some spurring. The examiner's impression was lumbosacral strain, and L5-S1 disc herniation, with vacuum phenomenon and spur formation. On VA orthopedic examination in August 1992, the veteran was found to have lumbosacral strain, degenerative joint disease of the lower lumbar facets, spondylosis of the lumbar spine, vacuum phenomenon and moderate canal stenosis. Examination revealed tenderness in the lumbosacral area and some muscle spasm. Forward flexion was to 30 degrees, lateral flexion was to 20 degrees, rotation was to 15 degrees and extension to 15 degrees, all movements made with complaints of pain and marked stiffness. Hypesthesia was noted in the left anterior thigh. There was no weakness of the great toe extensors, the veteran could walk on his toes and heels without difficulty, and strength was good. The veteran is in receipt of the maximum disability evaluation under Diagnostic Code 5292, which awards a 40 percent disability rating for limitation of motion of the lumbar spine which is severe. Of the various motions of the lumbar spine, the Board finds that the most important movement is that of forward flexion, or the ability to bend forward, because it is this ability which most affects functioning, such as the ability to sit comfortably at a table or desk, to reach objects at lower than waist level, and to perform personal functions, including dressing oneself. If forward flexion to 90 degrees, or the ability to bend forward where the body is roughly perpendicular to the floor, is considered to be within normal limits, then the veteran's limitation of such flexion to 30 degrees is flexion to less than half of what would be normal, which we consider to approach a severe degree of limitation. While the veteran exhibits movements of backward extension, rotation and lateral flexion, such motions are also limited. An over-all assessment of the range of motion of the veteran's lumbar spine shows the limitation to approximate a severe degree, and thus would warrant a 40 percent evaluation under Code 5292. Medical records show, however, that the veteran's back disability is manifested by symptoms characteristic of Code 5295, such as limitation of forward bending and joint space narrowing, as well as symptoms characteristic of Code 5293, including muscle spasm, and sciatic pain extending into the lower extremities. Therefore, we will consider the criteria of Diagnostic Codes 5293 and 5295 in determining the appropriate rating for the veteran's disability. We will consider the various symptoms as manifestations of one disability, as regulations require the avoidance of "pyramiding," or counting one condition as more than one disability. See 38 C.F.R. § 4.14 (1994). The veteran shows some of the symptoms contemplated by the maximum 40 percent disability evaluation under Code 5295, including marked limitation of forward bending, narrowing of joint space, and loss of lateral motion with osteoarthritic changes. However, there is no listing of the whole spine to the opposite side, and the record is silent with respect to Goldthwaite's sign. However, the veteran's lumbar spine disability is also eligible for consideration under Code 5293 which evaluates intervertebral disc syndrome on a scale from 10 percent for a mild condition to 60 percent for pronounced disability, with persistent symptoms compatible with sciatic neuropathy. The ratings under Code 5293 differ from one another mainly based on the severity and frequency of the symptoms, such as whether or not there is intermittent relief. In a February 1988 statement, the veteran wrote that his pain from his back disability had become almost constant, and was sometimes sharp, sometimes a duller pain. On VA examination in May 1988, an increase in recurrent sciatic radiation of pain was noted. In his February 1989 hearing at the RO, the veteran stated that numbness or discomfort was almost always present, and that he had sharp pains with certain movements. A 1992 VA examination report described the veteran's pain as recurrent. At the time of examination, the veteran was reported to be in no acute distress. The veteran reported pain and stiffness with movements made to determine the range of motion of his lumbar spine. The 1992 examination, with respect to neurological findings, showed hypesthesia only of the left anterior thigh, there was no weakness of the great toe extensors, he could walk on toes and heels without difficulty and with good strength. The evidence presents a picture of limited numbness, over the left thigh only, or dull pain much of the time, with sharper pains intermittently or with certain movements. However, the neurological symptoms applicable to intervertebral syndrome are not shown to be more than severe, without the persistent symptoms compatible with sciatic neuropathy which would entitle the veteran to a higher rating. Absent ankle jerks were not noted. This disability picture most nearly approximates a 40 percent rating under Code 5293; as moderate discomfort is fairly constant, but there is intermittent relief between severe attacks. As the veteran's condition most appropriately meets the criteria for a 40 percent rating under either Code 5293 or 5295, a 40 percent rating is the correct rating for his current back disability. Regulations provide that an extra-schedular evaluation is warranted in cases that present an exceptional or unusual disability picture, wherein such factors as marked interference with employment or frequent periods of hospitalization render impractical the application of the regular schedular criteria. 38 C.F.R. § 3.321(b) (1994). In this case, we do not find that an exceptional or unusual disability picture has been presented. The veteran's disability picture is compatible with, and may be adequately evaluated under, the rating criteria for back disabilities described by Diagnostic Codes 5293 and 5295. The veteran's back condition has not required frequent periods of hospitalization. The veteran has presented evidence that his back disability has interfered with getting and keeping jobs as a carpenter on construction projects. Interference with specific jobs, however, does not constitute average impairment of employment capabilities. There has been no showing that the veteran's back disability would cause marked interference with work less manual in nature that does not require lifting and other heavy physical labor. The veteran's over-all industrial impairment is contemplated in the 40 percent rating that has been provided to compensate him for the impairment in earning capacity in civil occupations resulting from his back disability. See 38 C.F.R. § 4.1 (1994). We conclude that an extra-schedular evaluation is not warranted in this case. ORDER An evaluation is excess of 40 percent for lumbosacral strain or intervertebral disc syndrome is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.