BVA9502298 DOCKET NO. 91-36 181 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating for rotoscoliosis with lumbosacral strain, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran had essentially continuous active service from October 1963 to December 1971. This appeal is taken from a Regional Office (RO) determination in September 1990 which confirmed and continued a 20 percent evaluation for the disability at issue. CONTENTIONS OF APPELLANT ON APPEAL It is essentially contended that the service-connected back disability has worsened, and is more disabling than the current rating reflects. Specifically, it is averred that he has radiating back pain, and muscle spasm. 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(s). 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 an increased rating for rotoscoliosis with lumbar strain, degenerative arthritis and radiculopathy. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the appeal has been obtained. 2. Rotoscoliosis of the lumbar spine with lumbosacral strain is manifested primarily by degenerative joint disease and radiculopathy, productive of no more than moderate disability. 3. Neither an exceptional nor unusual disability picture has been presented so as to render the regular schedular criteria inapplicable. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for rotoscoliosis with lumbar strain is not warranted. 38 U.S.C.A. § § 1155, 5107 (West 1991); 38 C.F.R. § 3.32l, Part 4, Diagnostic Codes 5289, 5292, 5293, and 5295 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim that is plausible. He has not asserted that any records of probative value that may be obtained and which are not already associated with his claims folder are available. Accordingly, the Board finds that all relevant facts have been properly developed, and that the duty to assist him, mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. Service connection was established for history of lumbosacral strain by a RO determination in August 1975, and assigned a noncompensable evaluation effective from April 30, 1975. That determination was based on the evidence then of record, including a VA examination in July 1975 which revealed a normal gait, normal straight leg raising, and an ability to flex forward, squat and walk on heels and toes. There was no tenderness or para spinus muscle spasm. X-ray examination of the lumbar spine at that time revealed no bony abnormality other than scoliosis with convexity to the left side. Based on the clinical findings of a routine VA examination in December 1978, the rating was increased to 40 percent effective from October 23, 1978. The examination report indicated the veteran complained of nonradiating back pain. He demonstrated limitation of motion of the back. Based on the evidence then of record, the Board of Veteran's Appeals, in a decision dated in February 1980, denied entitlement to an evaluation in excess of 40 percent for the back disability. Effective December 1, 1981, the RO reduced the evaluation for rotoscoliosis with lumbar strain syndrome from 40 percent to 10 percent. The most recent VA examination of record at that time, performed in September 1981, revealed the veteran performed 85 degrees of forward flexion, and had full backward extension, full lateral flexion, bilaterally, and full rotation, bilaterally. There was no paravertebral spasm, atrophy or tenderness. The assigned 10 percent evaluation was reduced to a zero percent evaluation effective from October 1, 1983. The report of the most recent VA examination of record at that time, performed in June 1983, revealed the veteran complained of occasional episodes of low back pain with stooping, bending and lifting. He took no medication. Physical examination showed no tenderness, muscle spasm or limitation of motion. Straight leg raising was normal, and he walked on his heels and toes, and squatted with no difficulty. The rating was increased to 20 percent effective from May 16, 1984. The report of the most recent VA examination of record at that time, performed in May 1984, revealed the veteran complained of low back pain and cramps in the back of the left leg when forward flexing such that the fingertips reached to the knees. There was no extension of the low back. Lateral bending was approximately 20 degrees. He complained of being unable to walk on toes and heels because "it pulls the muscles in my legs." His gait was normal. The 20 percent evaluation has been continued to date. The veteran underwent a VA examination in July 1990. He complained of low back pain. His carriage was observed to be slightly bent forward, and he ambulated with a cane. Physical examination revealed the veteran had a cant to the left when he stood. He walked somewhat painfully and slowly with a cane. He wore a low back brace. Backward flexion was to zero degrees. Forward flexion was to 80 degrees. Right and left lateral flexion was 20 degrees. Right and left lateral rotation was 20 degrees. X-ray examination of the lumbar spine revealed no abnormality except marked scoliosis of the lumbar spine. VA outpatient clinic treatment reports reveal the veteran was seen in September 1990 when he requested to be fitted for another corset for the back. It was noted that the veteran was very obese and might not be a candidate for corset therapy. A report of a VA X-ray examination of the lumbar spine, in September 1990, at the VA outpatient clinic, produced an impression of scoliosis with mild osseous degenerative change, and mild retrolisthesis of L5 on S1. The radiologist reported that these findings were unchanged from previous examination in November 1988. The veteran provided sworn testimony at a RO hearing in April 1991. He testified that he received outpatient treatment approximately every four months. He walked with a cane. The balance of the testimony was essentially an elaboration on the previously mentioned contentions. A report of VA examination, performed in February 1991, revealed the veteran was ambulatory without external support. Examination of the back revealed no muscle spasm. Flexion, extension, and lateral bending were each characterized as "good" without indication of the degree of range of motion achieved. The veteran reportedly complained of back pain even when his skin was touched. He was able to walk on his toes and heels. Lower extremity reflexes were depressed, in general, but equal. Straight leg raising was to 90 degrees. It was indicated that "X-rays show scoliosis and nerving at the L5-Sl level." The impressions were chronic back strain and degenerative arthritis. His condition was characterized as stable. Clinical notes of a private chiropractor, dated from April to July 1991, reveal the veteran was evaluated in April, May and July 1991 when his complaints included lower back pain and stiffness. On initial evaluation in April 1991, straight leg raising was positive at 30 degrees, bilaterally, producing lower back pain and spasm. Thoracolumbar range of motion was reported as "flexion 60/90, extension 30/30, right lateral flexion 15/20, left lateral flexion 10/20, right rotation 30/30, [and] left rotation 30/30." Pain was elicited in all planes. Chiropractic manipulation therapy and a back brace were recommended. When seen by the private chiropractor later that same month, the veteran's lumbar range of motion was 80 percent of normal, and pain was elicited with extension. Straight leg raising testing was positive at 40 degrees, bilaterally, producing lower back pain. In May 1991, lumbar range of motion was approximately "90 percent of normal." Pain was elicited with lumbar extension. When seen in July 1991, it was reported the veteran's response to treatment had been favorable, and that all previously positive findings were essentially negative except for straight leg raising which produced lower back pain, and "stiffness especially when the weather changes." The veteran was discharged from the clinic, and no future care was scheduled. He was instructed in at-home strengthening exercise. On VA orthopedic examination in March 1992, the veteran complained of low back pain and occasional radiation of pain into both legs. He stated the pain was aggravated by any prolonged activity, climbing stairs, running or prolonged walking. He denied any bowel or bladder dysfunction. Physical examination revealed the veteran walked with minimal distress. Examination of the low back revealed mild tenderness to palpation in the mid lumbosacral spine without palpable spasm. Range of motion testing revealed full flexion. The veteran was able to heel and toe stand without difficulty. Motor strength was 5/5 in all muscle groups tested. Deep tendon reflexes were equal, bilaterally, and straight leg raises were negative to 90 degrees, with no increase in pain with dorsiflexion of the foot. Sensation was intact in both lower extremities to light touch. X-ray examination of the lumbar spine revealed narrowing at L4-L5 and L5-S1, with thoracolumbar scoliosis with degenerative joint changes. The assessment was thoracolumbar scoliosis with secondary degenerative joint disease. On VA neurologic examination, in March 1992, the veteran complained of low back weakness and pain radiating to the lower extremities, and increasing painful paresthesia. Physical examination revealed sensory deficit to light touch, pinprick, and vibration in both feet and ankles in a stocking pattern with demarcation of the stocking just above the ankle. There was patchy sensory deficit to light touch and pinprick throughout the lateral foot, lateral ankle and lateral calf, bilaterally, consistent with L5, S1 dermatome. Motor evaluation revealed decreased strength in the right lower extremity, including the leg and foot, grade 3/5. Deep tendon reflexes of the lower extremities were absent at the infrapatellar tendon and the Achilles tendon, bilaterally. The assessments were rotoscoliosis with lumbar strain; radiculopathy of the lower extremity secondary to the rotoscoliosis with lumbar strain; and glove and stocking dysthesia, probably secondary to diabetic neuropathy. The severity of a disability is determined, for VA rating purposes, by application of the provisions of VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1993) (hereinafter Schedule). The veteran's current disability rating contemplates moderate limitation of motion of the lumbar spine (Diagnostic Code 5292), moderate intervertebral disc syndrome with recurring attacks (Diagnostic Code 5293), or lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral in a standing position (Diagnostic Code 5295). A 40 percent evaluation is warranted for favorable ankylosis of the lumbar spine (Diagnostic Code 5289), severe limitation of motion of the lumbar spine (Diagnostic Code 5292), severe intervertebral disc syndrome with recurring attacks and little intermittent relief (Diagnostic Code 5293), or severe lumbosacral strain with listing of the whole spine to the opposite side, 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 joint space, or some of the above with abnormal mobility on forced motion (Diagnostic Code 5295). The clinical evidence of record establishes that the veteran's lumbar spine is not ankylosed. As such, an increased evaluation is not warranted under Diagnostic Code 5289. Since 1990, the range of motion of the lumbar spine has been characterized as either "good," "full," or reported in degrees of greater than 50 percent of normal. These clinical findings are demonstrative of no more than moderate limitation of motion of the lumbar spine. As such, an increased evaluation is not warranted under Diagnostic Code 5292. The record reflects that the veteran testified he currently requires medical treatment no more frequently than three times a year, that he utilizes bed rest and self-administered ointment for relief of symptoms. Moreover, his symptoms improved with chiropractic manipulation therapy in 199l such that "[a]ll previously positive findings objectively were essentially negative except for straight leg raise which still produced lower back pain and some stiffness especially when the weather changes." He retains good muscle strength, despite the presence of neuropathy and radiculopathy of the lower extremities. These clinical findings do not establish severe intervertebral disc syndrome or severe lumbosacral strain, as contemplated in Diagnostic Codes 5293, and 5295, respectively. In view of the foregoing an increased schedular evaluation is not warranted. In addition, this case does not 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. ORDER An increased evaluation for rotoscoliosis with lumbar strain syndrome is denied. U. R. POWELL 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.