Citation Nr: 0007571 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 98-15 161 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Determination of proper initial rating for disc bulge at L4- 5, status post L5-S1 diskectomy with epidural scarring, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Trueba-Sessing, Associate Counsel INTRODUCTION The case comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The veteran served on active duty from March 1993 to October 1997. The Board observes that additional evidence was forwarded to the Board in October and November 1999. In written argument submitted in December 1999, the veteran's accredited representative waived initial RO consideration of such evidence. See 38 C.F.R. § 19.37, 20.1304 (1999). FINDINGS OF FACT 1. All evidence necessary for resolution of the issue on appeal has been obtained. 2. The veteran's low back disability is productive of subjective complaints of recurrent attacks of radiating back pain with numbness in the lower extremity, and objective evidence of increased pain with credible evidence of additional functional impairment due to pain with physical activity. CONCLUSION OF LAW The criteria for a 20 percent initial rating for disc bulge at L4-5, status post L5-S1 diskectomy with epidural scarring, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5293 (1999); DeLuca v. Brown, 8 Vet. App. 202 (1995); Butts v. Brown, 5 Vet. App. 532 (1993); Fenderson v. West, 12 Vet. App. 119 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION A person who submits a claim for benefits under a law administered by the VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Appeals for Veterans Claims (Court) has held that a mere allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for increased initial rating is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Once a claimant has presented a well-grounded claim, the VA has a duty to assist the claimant in developing facts which are pertinent to the claim. See 38 U.S.C.A. § 5107(a) (West 1991). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue on appeal has been obtained, as reflected by the November 1997 and May 1999 VA examinations described below. He has had the opportunity to have a personal hearing at the RO. And, the Board does not know of any additional relevant evidence which is available. Therefore, no further assistance to the veteran with the development of evidence is required. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, when a veteran appeals the initial rating assigned after a grant of service connection, separate ratings may be assigned for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). If two evaluations are potentially applicable, 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. See 38 C.F.R. § 4.7 (1999). Furthermore, with respect to the musculoskeletal system, the Court has emphasized that when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995); see also VAOPGCPREC 36-97. The rating for an orthopedic disorder should reflect functional limitation which is due to pain, supported by adequate pathology, and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is also 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. See 38 C.F.R. § 4.40 (1999). The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45 (1999). It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating or the joint. See 38 C.F.R. § 4.59 (1999). In this case, in a March 1998 rating decision, the veteran was awarded service connection and a 10 percent initial rating for disc bulge at L4-5, status post L5-S1 diskectomy with epidural scarring, under Diagnostic Code 5293, effective October 1997. At present, he is seeking an increased initial rating in excess of 10 percent. With respect to the evidence of record, the veteran's service medical records show he was treated for neck and back pain during his service. These records also include a June 1997 Medical Board report noting the veteran's diagnosis was low back pain status post L5-S1 diskectomy with epidural scarring. He had done well following surgery, but about six months later he began having constant low back pain and intermittent foot numbness. At the time of this examination, he had 5/5 of strength and 2+ of reflexes in the lower extremities, bilaterally; intact sensory examination for pinprick; and a negative straight leg raise examination. A low back Magnetic Resonance Imaging (MRI) examination revealed he had an enlarged S1 nerve root on the right with no displacement of the nerve, but with epidural scarring; and L5 pars defect was ruled out. The post-service medical evidence includes a November 1997 VA spine examination report noting the veteran reported he injured his back in 1994 while doing construction and moving large pieces of equipment, which resulted in a diskectomy at L5-S1 in October of that year. He gave a remote and recent history of daily back pain and reported that he had right foot numbness with certain activities such as with heavy lifting, stooping, twisting, or squatting. He also reported that he had no problems with weakness or numbness in his foot for the past 10 months because he was continually careful. Upon physical examination, the veteran's lumbar spine range of motion was 90 degrees of flexion, 20 degrees of extension, and 45 degrees of bilateral rotation and lateral bending, all movements performed without pain. He had 5/5 of motor strength and 2+ of ankle and knee reflexes bilaterally, did not show evidence of atrophy, and had negative straight leg raise and femoral nerve stretch tests. He was deemed completely neurovascular intact with intact sensation. However, upon x-ray examination, he presented evidence of decreased normal lordosis of the lumbar spine and mild decrease in disc height at L5-S1, with no evidence of degenerative changes or malalignment. The examiner noted in his conclusion that the veteran continued to have low back pain which was probably a combination of post-surgical as well as mild degenerative changes which did not appear on x- ray examination. The veteran also noted that the veteran had some right foot neurological symptoms which were likely due to exacerbation with compression of his nerve due to the scar and the disc with certain movements. It was the examiner's opinion that, although the veteran may need another surgery if his problems continued, at the time of the examination his disability was deemed to be mild as he had good range of motion and strength, and did not have neurological symptoms when he limited his activity. In addition, a May 1999 VA examination report shows the veteran had active range of motion within normal limits in all joints, sensation intact to pinprick and light touch over the lower extremity dermatomes, 5/5 of strength in the lower extremities, and equal deep tendon reflexes. Straight leg raising was negative. There was no pain upon lumbosacral palpation, and no evidence of muscle spasm or fasciculation of the lumbosacral paraspinal muscles. His gait was completely nonantalgic without the use of any assistive device. And, no other focal neuromuscular deficits were noted. The veteran's diagnosis was low back pain with no evidence of significant focal neuromuscular or functional deficits on this examination. Furthermore, medical records from the Charleston VA Medical Center (VAMC) dated from November 1997 to September 1999 describe the treatment the veteran received for various health problems, including his low back disability. Specifically, these records contain a January 1999 notation in which the veteran reportedly needed pain medication for his back because Motrin was not working. He was seen in February 1999. At that time the veteran indicated that his back still caused him trouble and he stated that while the numbness in his right foot had improved, he still had mid to low back pain that did not radiate and which was worse with physical activity. Examination at that time revealed good motor strength and good deep tendon reflexes that were described as symmetrical. There were no sensory deficits and a negative Lasegue's sign. The assessment was low back pain. The record also contains an April 1999 notation regarding a telephone call to the veteran's physician and in which the veteran reported having unbearable back pain and reported that the muscle relaxes were not working. He indicated that the pain had gotten worse over the past month. In August 1999, the veteran complained of low back pain and pain shooting down his left leg. At that time, he also reported that the pain kept him awake at night, and that he was taking extra strength Tylenol for pain without pain relief. Upon examination, muscle strength was 5/5 in all extremities and reflexes were 2+/4 bilaterally. There was no low back pain with palpation. A subsequently conducted September 1999 MRI of the veteran's back revealed that the L1-1, L2-3, and L3-4 disc levels to be grossly unremarkable with no evidence of spinal canal stenosis or neural foraminal impingement. The L4-5 disc demonstrated an annular tear of the posterior portion of the annulus. There was also a central shallow disc herniation which touched the transiting L5 nerve root with no significant displacement noted. The L4-5 disc space was also desiccated and showed evidence of narrowing. The L4-5 disc also showed post-surgical changes with enhancing scar (granulation tissue) within the right lateral recess and surrounding the right S1 nerve root. The disc was desiccated and showed loss of disc space height. There was a shallow left-sided disc herniation contacting the left S1 nerve root with no definite displacement of the nerve root. Finally, during the May 1999 appeal hearing at the RO, the veteran testified he has back pain on a daily basis, with severe attacks every two to three months lasting two to three weeks at a time, depending on his physical activity; extended standing or exercising would exacerbate the attacks. He also noted that, at times, when he awoke, he had throbbing back pain with tingling. During the attacks the intensity of his pain was reportedly about 7/10, and he was currently taking Flexeril and Motrin for his pain. Also, given that he is a student, he asserted that his low back disability made it difficult for him to carry around his books and to sit at a desk for extended periods of time. He stated that he was only able to lift up to 20/30 pounds without pain. He indicated that he no longer had numbness in his legs. With respect to the applicable law, under Diagnostic Code 5293, a noncompensable rating is warranted for intervertebral disc syndrome which is postoperative and cured. A 10 percent rating is warranted for intervertebral disc syndrome which is mild in degree. A 20 percent rating is warranted for intervertebral disc syndrome which is moderate in degree with recurring attacks. A 40 percent rating is warranted for severe intervertebral disc syndrome with recurring attacks and little intermittent relief. A 60 percent rating is warranted for intervertebral disc syndrome which 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, with little intermittent relief. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1999). The Board has carefully reviewed the medical evidence pertinent to the case, and notes that the veteran has reported experiencing back pain, with severe attacks every two to three months, lasting two to three weeks at a time. However, the Board also notes that the two most recent VA examinations, collectively, only show subjective complaints of daily back pain with numbness in the lower extremities upon certain activities. On neither examination was there evidence of impaired motion of the spine, muscle spasm or other neurological findings. Further, while the veteran did report the existence of some recurrent symptomatology, it does appear that there is some intermittent relief as the symptomatology has not been reproducible on any examination. However, in considering whether there is additional functional impairment due to flare-ups, fatigability, incoordination and pain on movement such that would warrant a higher evaluation under either Diagnostic Code 5293 or under another related diagnostic code, the Board notes that the veteran's low back disorder may also be rated under the provisions pertaining to limitation of motion of the lumbar spine under 38 C.F.R. § 4.71a, Diagnostic Code 5292. See Butts v. Brown, 5 Vet. App. 532, 539 (1993). Under Diagnostic Code 5292, a 10 percent evaluation is assigned for slight limitation of motion of the lumbar spine. A 20 percent evaluation is awarded for moderate limitation of motion. And, a 40 percent evaluation is granted for severe limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1999). In evaluating the veteran's disability under both Diagnostic Code 5293 and Diagnostic Code 5292, the Board acknowledges the veteran's reports of daily back pain/stiffness and recurrent attacks every two to three months, and his current physical limitations, such as being able to lift only up to 20-30 pounds without pain and his inability to sit for extended periods of time. As well, the Board does find credible the veteran's assertions that he is functionally limited in that he is unable to lift, bend, or run or do much of other physical activities without triggering a worsening of his pain attacks. Clearly, the November 1997 examiner found the veteran's complaints of continued back pain to be credible although such symptomatology was not found on examination as he noted in his conclusion that the veteran's continued low back pain was probably a combination of post- surgical as well as mild degenerative changes which did not appear on x-ray examination and he also noted that the veteran had some right foot neurological symptoms which were likely due to exacerbation with compression of his nerve due to the scar and the disc with certain movements. Further, the various outpatient treatment records indicate that the veteran does continue to experience recurrent low back pain that limits his activity when symptomatic. Finally, the Board notes that recent MRI testing did reveal residual scar tissue filling the L4-5 right lateral recess and surrounding the right S1 nerve root with narrowing of the right L5 neural foramen as well as some left-sided disc herniation at L5-S1 contacting the left S1 nerve root and an annular tear with cental disc herniation at L4-5 touching the transiting L5 nerve root. Thus, the Board finds that although there were no significant findings shown on repeat VA examination, there is sufficient evidence of record which indicates that the veteran's low back disorder more nearly approximates a moderate degree of disability than a mild one with consideration of the provisions of 38 C.F.R. §§ 4.40, 4.45. As such, the Board finds that the evidence support the award of a 20 percent initial rating under Diagnostic Code 5293. See DeLuca v. Brown, supra; 38 C.F.R. §§ 4.40, 4.45, 4.59. As noted above, both the 20 percent and 40 percent ratings under Diagnostic Code 5293 require recurring attacks of intervertebral disc syndrome. However, the 20 percent evaluation requires moderate symptomatology and the 40 percent evaluation requires severe symptomatology with intermittent relief. In this regard, while the veteran has reported the presence of severe symptomatology during his attacks, the objective evidence of record is simply not consistent with disc disease that is severe in degree. Neither the 1997 nor the 1999 VA examinations show positive straight leg raising, absent right ankle jerk or other severe neurological findings. Notably, straight leg raising were negative during both examinations. Thus, while the Board finds credible the veteran's statements regarding the fact that he continues to experience some symptomatology, notably pain, relating to his back, the objective evidence of record does not indicate that the demonstrated symptomatology is of a greater degree than contemplated by the currently assigned 20 percent initial rating. The Board finds that the minimal symptoms shown on repeat examination, when considered with the veteran's description of his current symptomatology, are at most indicative of a moderate degree of impairment. As such, the Board finds the veteran's low back disability is not productive of recurrent attacks of severe intervertebral disc disease with intermittent relief. As well, the evidence does not show that the veteran's low back disability is productive of severe limitation of motion. Based on the foregoing, the Board finds that the medical evidence, as set forth above, shows that the veteran's lower back symptoms are, at least with respect to the criteria embodied by Diagnostic Codes 5292 and/or 5293, consistent with an evaluation no higher than 20 percent. After reviewing the veteran's claim for an increased initial rating, the Board finds that an increased rating on an extraschedular basis is not warranted. The Code of Federal Regulations, at 38 C.F.R. § 3.321(b) (1999), provides that, in "exceptional case[s], where the schedular evaluations are found to be inadequate, . . . an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities . . ." may be granted. Generally speaking, for a specific case to be deemed "exceptional," it should present "such an exceptional or unusual disability picture[,] with such related factors as marked interference with employment or frequent periods of hospitalization[,] as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b) (1999). The Board finds that the veteran's lower back disability does not constitute an "exceptional case" as to allow for the assignment of an extraschedular rating. Indeed, the record does not show either that the veteran's disability subject him to frequent periods of hospitalization or that it interferes with his employment to an extent greater than that which is contemplated by the assigned rating, as deemed appropriate by the Board. And, as is apparent from the foregoing discussion, it cannot be said that the schedular rating criteria are inadequate in this instance. ORDER The initial rating assigned for disc bulge at L4-5, status post L5-S1 diskectomy with epidural scarring, is not appropriate, and a 20 percent initial evaluation is granted, subject to the provisions governing the payment of monetary benefits. S. L. KENNEDY Member, Board of Veterans' Appeals