BVA9504950 DOCKET NO. 92-08 192 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an extension of a temporary total disability evaluation for convalescence under the provisions of 38 C.F.R. § 4.30 beyond February 28, 1990. 2. Entitlement to an evaluation in excess of 40 percent for spondylolisthesis, L5 - S1, with degenerative joint disease, postoperative, prior to February 1, 1992. 3. Entitlement to restoration of an evaluation of 40 percent for spondylolisthesis, L5 - S1, with degenerative joint disease, postoperative, for the period commencing February 1, 1992, and thereafter. 4. Entitlement to an evaluation in excess of 20 percent for spondylolisthesis, L5 - S1, with degenerative joint disease, postoperative, for the period commencing February 1, 1992, and thereafter. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD James A. Frost, Associate Counsel INTRODUCTION The veteran served on active duty from April 1975 to August 1976. This appeal arises from rating decisions in April 1990, November 1991 and November 1993 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In August 1993 the Board of Veterans' Appeals (the Board) remanded this case to the RO for evidentiary development. The case was returned to the Board in November 1994. While the case was in remand status, it appears that, in his communications with the RO, the veteran may have been asserting a claim of entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. Such a claim would not be inextricably intertwined with the current appeal and will therefore not be addressed in this decision. Parker v. Brown, 7 Vet.App. 116 (1994). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the disability evaluation for his back disorder should not have been reduced after surgery in November 1989, but rather should have been increased. He states that he has almost constant lower back pain which radiates to his lower extremities. He also contends that he was unable to return to work after the surgery until December 1990. 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 the veteran's claims. FINDINGS OF FACT 1. A need for convalescence from back surgery in November 1989 beyond February 28, 1990, has not been demonstrated. 2. As shown at VA examinations in 1991, 1993 and 1994, the veteran's back disability is primarily manifested by frequent lower back pain on motion, with radiation to the lower extremities and moderate limitation of motion and without motor or sensory loss; it is productive of no more than moderate impairment. CONCLUSIONS OF LAW 1. Extension of a temporary total disability evaluation for convalescence beyond February 28, 1990, is not warranted. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.30 (1994). 2. The schedular and extraschedular criteria for an evaluation in excess of 40 percent for spondylolisthesis, L5 - S1, with degenerative joint disease, postoperative, prior to February 1, 1992, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b)(1), 4.71a and Codes 5292, 5293, 5295 (1994). 3. The schedular and extraschedular criteria for restoration of an evaluation of 40 percent for spondylolisthesis, L5 - S1, with degenerative joint disease, postoperative, for the period commencing February 1, 1992, are not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.71a and Codes 5292, 5293, 5295. 4. The schedular and extraschedular criteria for an evaluation in excess of 20 percent for spondylolisthesis, L5 - S1, with degenerative joint disease, postoperative, subsequent to February 1, 1992, are not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 3.321(b)(1), 4.71a and Codes 5292, 5293, 5295. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the veteran's claims are "well- grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented claims which are plausible. The Board is also satisfied that all relevant facts have been properly developed. In this connection, the Board finds that VA examinations in October 1993 and February 1994 were adequate for rating purposes. No further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a). Service medical records disclose that, in January 1976, the veteran slipped on ice and injured his back. He was hospitalized for treatment and ultimately evaluated by a Physical Evaluation Board which in June 1976 rendered a diagnosis of: Spondylolisthesis, L4 - S1, with a bilateral L4 pars interarticular defect and congenital absence of L5 with secondary low back, sacral and coccygeal pain radiating into the lower extremities, which existed prior to service and was aggravated during service. A rating decision in February 1977 granted service connection for the veteran's back disorder, and a rating decision in March 1977 assigned a 10 percent disability evaluation. In July 1977 Richard H. Retter, M.D., a private physician, reported that the veteran's spondylolisthesis had become Grade I or Grade II; the shift of L5 on S1 was minimal, but when he moved both legs up at the same time he had pain in the area of the vertebral body deformity. VA X-rays of the lumbosacral spine in October 1978 showed spondylolysis with Grade I spondylolisthesis of L5 on S1. At a VA examination in October 1978 the veteran's gait was normal. He could heel and toe walk well, bilaterally. Range of motion was flexion to 90 degrees, with pain, extension to 30 degrees and lateroflexion to 30 degrees, bilaterally. Straight leg raising was negative at 90 degrees, bilaterally. The diagnosis was lower back pain. At a VA examination in June 1979, range of motion of the back was flexion to 80 degrees and extension to 30 degrees. Tenderness over the lumbosacral spine, with spasms, was noted. The diagnosis was lower backache, with spondylolisthesis, L5 - S1. In January 1981 the veteran underwent an evaluation by the chief of rheumatology at a VA hospital. He complained of lower back pain. He said he had aching of the low back after being in bed three hours and after intercourse. After prolonged sitting, he had aching in the lower extremities. Upon arising he might have sharp lower back pain, but he quickly limbered up and had no difficulty doing his work. On examination the veteran was 5 feet 5 1/2 inches tall and weighed 165 pounds. his posture and gait were normal. Lumbar lordosis was normal; there was no scoliosis or kyphosis. He could easily touch the floor with his knees extended; mobility of the vertebrae was normal. Straight leg raising was normal. Knee jerks and ankle jerks were one plus and symmetrical. The examiner stated that X-rays did not show absence of L5, but rather showed L4-5 spondylolysis, which was a congenital abnormality. Furthermore, there was no spondylolisthesis; the vertebral bodies were normally aligned. The examiner concluded that the veteran's complaints were not attributable to the radiographic findings, and the radiographic findings were not attributable to the injury to his back in service. In September 1989 the veteran asserted a claim of entitlement to an increased evaluation for his back disability. He stated that, in service, he had been 5 feet 8 inches tall and weighed 140 to 150 pounds. He was now 5 feet 5 1/2 inches tall and weighed 190 pounds. He indicated that a private physician had recommended that he undergo back surgery. Private X-rays of the lumbar spine in September 1987 had shown: A slight tilt to the right of the sacral base to L1; a 10 percent anterolisthesis of L5 on the sacrum, due to a bilateral L5 pars defect; and L5 discopathy. In July 1989 Boyd W. Bowden, D.O., a private osteopathic physician, reported that the veteran had complained of lower back pain along with pain in the lower extremities. He gave a history of back injury in service and a work-related back injury in 1978. X-rays showed first degree spondylolisthesis of L5 on S1. Range of motion was flexion to 45 degrees without pain and to 80 degrees with pain down both legs; lateral bending was to 35 degrees, with guarded motion. Deep tendon reflexes were three plus. The assessment was spondylolisthesis, L5 - S1, with nerve root involvement. Dr. Bowden recommended back surgery. In September 1989 D. D. Kackley, M.D., made a report to an insurance company which was the workers' compensation carrier for the business which had employed the veteran in 1978, when he suffered a back injury. Dr. Kackley concurred with Dr. Bowden that surgical elimination of spondylolisthesis and a posterior or lateral spinal fusion were indicated. After convalescence from back surgery, in Dr. Kackley's opinion, the veteran would have no significant residual impairment of function. In early November 1989 at a private hospital the veteran underwent a laminectomy at L5, with lateral fusion, and a foraminotomy at L4-5. The surgery was performed by Dr. Bowden. On November 15, 1989, four days after the surgery, Dr. Bowden stated that the veteran would not be able to return to work until November 1990. On November 28, 1989, Richard J. Maynard, D.C., a chiropractor who had treated the veteran prior to surgery, stated that the veteran would be able to return to his former employment on November 7, 1990. A rating decision in April 1990 assigned a 40 percent rating for the veteran's back disorder as of September 11, 1989, a 100 percent rating for convalescence purposes effective November 11, 1989, the date of the surgery, and a 40 percent evaluation effective March 1, 1990. In December 1990 in a letter to a United States senator, the veteran stated that, after the back surgery in November 1989 he had worn a metal back brace for 24 hours a day until May 1990; from May 1990 until July 1990 he wore the brace 18 hours per day. He also said that he finished "rehab" around December 1, 1990. At a personal hearing in April 1991 the veteran testified that: He did 2 1/2 hours of weight training three days per week and 1 1/2 hours of other exercises four days per week; he had pain in his legs after sitting; he could stand up about two hours per day. He was not wearing a brace or taking any medication. He was in and out of bed all day and night. He was unemployed. He saw a chiropractor at least once a week, who had not released him to return to work. He last worked as a construction laborer in May 1989. VA X-rays of the lumbosacral spine in May 1991 showed evidence of a laminectomy at L5, with 1 centimeter of anterolisthesis of L5 on S1 as a result. At a VA examination in May 1991, the veteran had a normal gait. He could squat and walk on his heels and toes. Range of motion was flexion to 45 degrees, extension to 20 degrees and lateroflexion to 25 degrees, bilaterally. Straight leg raising was negative. Knee jerks and ankle jerks were intact. Sensorium was intact. The diagnosis was status post lumbar laminectomy with fusion of L5 - S1. In a July 1991 decision a hearing officer found that post surgical findings at a VA examination in May 1991 warranted a reduction of the rating for the veteran's back disability from 40 percent to 20 percent. After notice to the veteran of the proposed reduction, a rating decision in November 1991 assigned a 20 percent rating, effective February 1, 1992. VA X-rays of the lumbosacral spine in October 1993 showed Grade I anterior spondylolisthesis of L5 on S1 with narrowing of the L5 - S1 disc space; the remaining vertebral bodies and sacroiliac joints were unremarkable. At a VA examination in October 1993 the veteran complained of constant lower back pain which varied in severity and pain and numbness in the legs off and on. On examination he was 5 feet 4 1/2 inches tall and weighed 202 pounds. He had a normal gait. He walked on heels and toes without difficulty. He could squat 80 percent of normal. Two well-healed scars were observed on the lower back. Range of motion was flexion to 50 degrees, extension to 0 degrees, lateroflexion to 10 degrees and rotation to 20 degrees. Straight leg raising was negative. Knee jerks and ankle jerks were one plus. There were no sensory deficits to pinprick in the lower extremities. The diagnosis was status post lumbar laminectomy with fusion of L4 - S1 for symptomatic spondylolisthesis, with residual symptoms. Private X-rays of the lumbar spine in October 1993 and November 1993 were consistent with prior VA X-rays. A private electromyogram in November 1993 showed evidence of remote S1 radiculopathy. A private MRI (magnetic resonance imaging) of the lumbar spine in November 1993 was consistent with previous X-ray studies; there was no new disc protrusion or lateral stenosis. In November 1993 Charles B. May, D.O., a private osteopathic physician, reported to the veteran's attorneys that the veteran had been doing well until recently when he complained of lower back pain and pain in both legs with numbness from the thighs to the feet. On examination range of motion of the lumbar spine was markedly restricted, with signs of instability. Active range of motion produced spasms. There was no reflex, motor or sensory loss in the lower extremities. In February 1994 the veteran refused to undergo VA X-rays, stating that he had had too many X-rays recently. At a VA examination in February 1994 the veteran complained of chronic lower back pain on a fairly constant basis. He could only sleep a few hours at a time, due to back pain. The pain radiated at times to the lower extremities. The muscles in his low back were stiff and sore. On examination the veteran was 5 feet 4 inches tall and weighed 190 pounds. His gait, once he thought he was not being observed, was perfectly normal. He could stand on his heels and toes. Knee jerks and ankle jerks were two plus and symmetric. There was no weakness of the lower extremities. There was no sensory loss or alteration. Range of motion was flexion to 50 degrees, extension to 20 degrees and lateroflexion to 20 degrees, bilaterally. The impression was that the veteran's chronic back problems were primarily subjective, with quite limited objective findings. In a letter to the RO in June 1994, the veteran stated that he averaged 3 to 4 hours of restless sleep per night. Sitting more than a few minutes produced pain, numbness and burning in one or both legs. His back and leg pain was not constant but occurred on a regular basis. I. Paragraph 30 Benefits Applicable regulations provide that a total disability rating (100 percent) may be assigned when treatment of a service- connected disability results in surgery necessitating at least one month of convalescence or for surgery with severe postoperative residuals, such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast or the necessity for house confinement or the necessity for continued use of a wheelchair or crutches, with regular weight bearing prohibited. 38 C.F.R. § 4.30. In the veteran's case, although his treating surgeon and chiropractor stated in November 1989, shortly after his back surgery, that he would not be able to return to work until November 1990, neither of them, nor any other physician, evaluated the veteran after February 28, 1990, and there are no reported clinical findings that would warrant a conclusion that the veteran needed an additional period of convalescence beyond February 28, 1990. VA private examinations in 1993 and 1994, discussed below, did not reveal objective clinical findings of such severity as to preclude the veteran's return to work. Accordingly, extension of a temporary total disability rating for convalescence beyond February 28,1990, is not in order. 38 C.F.R. § 4.30. II. Disability Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Diagnostic Code 5292 provides that moderate limitation of motion of the lumbar segment of the spine warrants a 20 percent evaluation. A 40 percent evaluation requires severe limitation of motion. 38 C.F.R. § 4.71a and Code 5292. The limitation of motion of the veteran's lumbosacral spine demonstrated at VA examinations in May 1991, October 1993 and February 1994 is most accurately described as moderate rather than severe. Although Dr. Charles B. May stated in November 1993 that range of motion of the veteran's lower spine was "markedly restricted," he did not report degrees of motion and there is thus insufficient evidence to show that the range of motion of the veteran's lumbosacral spine in November 1993 was any different than in October 1993 or February 1994. An increased schedular evaluation for limitation of motion of the lumbosacral spine is thus not in order. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a and Code 5292. Diagnostic Code 5295 provides that a 10 percent rating is warranted for lumbosacral strain with characteristic pain on motion. A 20 percent evaluation is warranted for lumbosacral strain where there is muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in the standing position. A 40 percent evaluation requires severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes or narrowing or irregularity of the joint space. A 40 percent evaluation is also warranted if only some of these manifestations are present if there is also abnormal mobility on forced motion. 38 C.F.R. § 4.71a and Code 5295. The veteran's lumbosacral spine disorder is not so disabling as to warrant a 40 percent evaluation, because the required symptoms of severe lumbosacral strain were not demonstrated at VA examinations in 1991, 1993 and 1994. Indeed, muscle spasms, a requirement for a 20 percent rating, were only reported by Dr. May, the private physician, and not by the VA examining physicians. The Board finds that since surgery in November 1989 the veteran's back disorder has not warranted more than a 20 percent rating under the diagnostic code for lumbosacral strain. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a and Code 5295. Diagnostic Code 5293 provides that a 10 percent evaluation is warranted for mild intervertebral disc syndrome. A 20 percent evaluation is warranted for moderate intervertebral disc syndrome, with recurring attacks. A 40 percent evaluation requires severe intervertebral disc syndrome, with recurring attacks with intermittent relief. 38 C.F.R. § 4.71a and Code 5293. The Board notes that, as stated above, a consulting orthopedic surgeon, Dr. Kackley, was of the opinion that, after back surgery, the veteran would have no significant residual impairment of function. In April 1991, at the time of his personal hearing, the veteran was performing vigorous exercises at least 1 1/2 hours per day every day of the week. In his letter of June 1994 to the RO, the veteran conceded that back and leg pain was no longer constant. In addition, all clinical evidence since the November 1989 back surgery shows a disability of moderate rather than severe degree. The Board accepts the finding of the VA examiner in February 1994 that the veteran's back problem is primarily subjective with only limited objective findings. The Board, therefore, concludes that, since the end of his period of convalescence on February 28, 1990, the veteran's back disability has been no more than 20 percent disabling under the applicable diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a and Codes 5292, 5293, 5295. This case does not present an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment, so as to render impractical the application of regular schedular standards. An extraschedular evaluation is thus not in order. 38 C.F.R. § 3.321(b)(1). While the Board has considered the doctrine of affording the veteran the benefit of any existing doubt with regard to the issues on appeal, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant resolution of this matter on that basis. 38 U.S.C.A. § 5107(b). ORDER Extension of a temporary total disability evaluation for convalescence under the provisions of 38 C.F.R. § 4.30 beyond February 28, 1990, is denied. An evaluation in excess of 40 percent for spondylolisthesis, L5 - S1, with degenerative joint disease, postoperative, prior to February 1, 1992, is denied. Restoration of an evaluation of 40 percent for spondylolisthesis, L5 - S1, with degenerative joint disease, postoperative, for the period commencing February 1, 1992, and thereafter, is denied. An evaluation in excess of 20 percent for spondylolisthesis, L5 - S1, with degenerative joint disease, postoperative, for the period commencing February 1, 1992, and thereafter, is denied. ALBERT D. TUTERA 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.