Citation Nr: 0006152	
Decision Date: 03/08/00    Archive Date: 03/17/00

DOCKET NO.  97-29 123A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Montgomery, Alabama


THE ISSUE

Evaluation of low back strain, rated 20 percent disabling.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. Schlosser, Associate Counsel


INTRODUCTION

The veteran had active military service from February 1990 to 
November 1996.

This matter originally came before the Board of Veterans' 
Appeals (Board) on appeal from a July 1997 rating decision in 
which the RO granted service connection for low back strain, 
and assigned a 10 percent rating as of his date of his 
discharge from service.  The case was remanded by the Board 
in May 1999 for evidentiary development.  In a rating action 
in September 1999, the evaluation of the veteran's back 
disorder was increased to a 20 percent rating as of the date 
of discharge form service.  The case has now been returned to 
the Board for further appellate consideration.

Inasmuch as the pending appeal is from an original award, the 
Board has framed the issue as shown on the title page of this 
decision.  See Fenderson v. West, 12 Vet. App. 119 
(1999)(appeals from original awards are not construed as 
claims for increased ratings).


FINDING OF FACT

The veteran's low back strain is currently manifested by 
complaints of pain and some loss of range of motion.

CONCLUSION OF LAW

The criteria for a rating in excess of 20 percent for low 
back strain at any time since the grant of service connection 
have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 1991); 
38 C.F.R. § 4.71a, Diagnostic Code 5295 (1999).

REASONS AND BASES FOR FINDING AND CONCLUSION

In general, disability evaluations are assigned by applying a 
schedule of ratings which represents, as far as can 
practicably be determined, the average impairment of earning 
capacity.  In determining the current level of impairment, 
the disability must be viewed in relation to its history.  
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Also, 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.

The veteran's low back strain has been evaluated under the 
provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5295 (1999).  
Lumbosacral strain with characteristic pain on motion is 
rated 10 percent disabling.  38 C.F.R. § 4.71a, Diagnostic 
Code 5295 (1999).  When there is muscle spasm on extreme 
forward bending, loss of lateral spine motion, unilateral, in 
standing position, a 20 percent rating is warranted.  Id.  
When lumbosacral strain is severe; 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 osteo-arthritic changes, or narrowing or 
irregularity of joint space, or some of the above with 
abnormal mobility on forced motion, a 40 percent rating is 
assigned.  Id.

In addition, the veteran's low back strain can be evaluated 
under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 
5292 (1999).  Moderate limitation of the lumbar spine is 
evaluated as 20 percent disabling and severe limitation of 
motion is evaluated as 40 percent disabling.

In addition, evaluation of disabilities of the 
musculoskeletal system includes consideration of functional 
loss due to such problems as weakness, excess fatigability, 
incoordination or pain pursuant to the guidelines of 
38 C.F.R. §§ 4.40, 4.45, and DeLuca v. Brown, 8 Vet. 
App. 202, 205 (1995).

The service medical records reveal that the veteran was seen 
on several occasions for complaints of low back pain.  He 
denied any history of trauma to the area.  X-rays of the 
lumbosacral spine in April 1990, June 1991 and April 1995 
were negative.  The veteran was diagnosed with probable 
lumbosacral strain.  The veteran received some physical 
therapy in service for his complaints of intermittent low 
back pain.

On VA general medical examination in April 1997, the veteran 
exhibited limited motion in the low back due to complaints of 
pain.  The diagnostic impression was lumbosacral strain.  
Based on the absence of complete clinical findings, to 
include findings which would allow for evaluation of the 
veteran's low back disability consistent with the holding of 
the Court in DeLuca, supra, and 38 C.F.R. §§ 4.40 and 4.45, 
the case was remanded by the Board in May 1999 for further VA 
examination.

Thereafter, the veteran was seen for a VA orthopedic 
examination in July 1999.  The veteran reported having 
received a steroid epidural injection in each of the two 
months prior to the date of the examination.  The veteran 
complained of pain, weakness, stiffness, fatigability and 
lack of endurance.  He reported periods of flare-up 
precipitated with bending, walking or climbing stairs.  The 
veteran indicated that he used a cane on occasion, but did 
not bring it to the examination.  He said that he takes 
Motrin for pain relief and uses a TENS unit, neither of which 
alleviate his symptoms.  On examination, range of motion in 
the back stopped at the point where pain began.  Range of 
motion was reported as follows: flexion possible to 48 
degrees; extension possible to 23 degrees; flexion to the 
right was possible to 24 degrees and flexion to the left was 
to 23 degrees.  No neurological abnormalities were evident.  
Knee jerks were reported to be active and equal.  There were 
no positive findings relative to the veteran's musculature of 
the back.  The veteran was observed to walk well and get in 
and out of a chair easily; no postural abnormalities were 
evident.  The examiner commented that there was slight 
evidence of painful motion, spasm, weakness and tenderness.  
The diagnostic impression was arthralgia of the lumbosacral 
spine with loss of function due to pain.  X-rays showed 
lordosis at L5-S1.  The examiner noted a 10 percent 
additional functional impairment.  In response to the 
specific questions posed in the remand order, the VA examiner 
indicated that there was no evidence of locking, weakened 
movement, fatigability, lack of endurance, incoordination, 
swelling, deformity, atrophy of disuse, disturbance of 
locomotion or interference with weight bearing.

By rating decision of September 1999, and with consideration 
of the clinical findings from the July 1999 VA examination, 
the RO granted an increased 20 percent rating for the 
veteran's low back strain, effective November 1996, the day 
after the veteran was discharged from service.

Considering the totality of the evidence, including the most 
recent July 1999 VA examination, a rating in excess of 20 
percent for the veteran's low back strain is not warranted.  
The veteran does not exhibit a marked limitation of motion in 
the lumbosacral spine and the lumbosacral strain is not shown 
to be severe.  He does not have listing of the whole spine to 
the opposite side or loss of lateral motion.  The veteran has 
described episodes of fatigability, lack of endurance and 
stiffness; none of these symptoms were reproduced on the last 
VA examination.  He does have some limitation of motion but 
is has not been characterized as severe.  With consideration 
of the pain complained of by the veteran, as well as the 
slight spasm, weakness and tenderness, a 20 percent rating 
was assigned.  The preponderance of the evidence is against 
the assignment of a rating higher than already awarded.  In 
addition, there is nothing of record to suggest that a higher 
rating should be assigned for the low back disability for any 
period during the pendency of his claim.  Fenderson v. West, 
12 Vet. App. 119 (1999).


ORDER

An increased rating for low back strain is denied.


		
	LAWRENCE M. SULLIVAN
	Member, Board of Veterans' Appeals