Citation Nr: 0005248 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 97-17 284 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical & Regional Office Center in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for drop foot with impaired neurological function of the right lower extremity as secondary to service-connected degenerative arthritis of the lumbar spine. 2. Entitlement to an evaluation in excess of 40 percent for degenerative arthritis of the lumbar spine. REPRESENTATION Appellant represented by: Montana Veterans Affairs Division WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from January 1966 to December 1968 and from May 1971 to April 1979. The current appeal arose from a July 1996 rating decision of the Department of Veterans Affairs (VA) Medical and Regional Office Center (M&ROC) in Fort Harrison, Montana. The M&ROC denied the claim of entitlement to an evaluation in excess of 40 percent for degenerative arthritis of the lumbar spine. The veteran presented testimony before a Hearing Officer at the M&ROC in December 1997, a transcript of which has been associated with the claims file. In early May 1998 the M&ROC Hearing Officer affirmed the determination previously entered, and denied entitlement to service connection for drop foot with impaired function of the right lower extremity as secondary to service-connected degenerative arthritis of the lumbar spine In late May 1998 the M&ROC denied entitlement to a total disability rating for compensation purposes on the basis of individual unemployability. The Board of Veterans' Appeals (Board) remanded the case to the M&ROC for further development and adjudicative actions in September 1998. In October 1999 the M&ROC affirmed the previous denials of entitlement to service connection for drop foot with impaired function of the right lower extremity as secondary to service-connected degenerative arthritis of the lumbar spine, and an evaluation in excess of 40 percent for degenerative arthritis of the lumbar spine. The case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. The claim of entitlement to service connection for drop foot with impaired neurological function of the right lower extremity claimed as secondary to service-connected degenerative arthritis of the lumbar spine is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 2. Degenerative arthritis of the lumbar spine is productive of not more than severe limitation of motion. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for drop foot with impaired neurological function of the right lower extremity as secondary to service-connected degenerative arthritis of the lumbar spine is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The criteria for an evaluation in excess of 40 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5292 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background A review of the service medical records discloses that in 1977 the veteran was seen with complaints of having twisted his back. Examination disclosed tenderness at the L4-5 down into the right buttock. Vertebral spasm was noted on the right. Radiographic study disclosed L5 compression with a degenerative L5-S1. In early 1978 he was found to be tender at L4-5 when he reported he had fallen out of a van. In late 1978 examination disclosed tenderness at L4-5-S1. Radiographic study revealed minimal hypertrophic arthritic lipping at L3-4 anteriorly. He was diagnosed with low back pain. The service medical records contain no evidence or findings of foot drop with neurological impairment of the right lower extremity. A July 1985 VA general medical examination of the musculoskeletal system concluded in a finding of degenerative joint disease of the lumbar spine. In August 1985 the M&ROC granted entitlement to service connection for degenerative arthritis of the lumbar spine with assignment of a 10 percent evaluation. A July 1992 VA examination of the veteran shows lumbar spine forward flexion was to 20 degrees, backward extension to zero degrees, bilateral lateral flexion to 20 degrees, and bilateral rotation to 20 degrees. In November 1992 the M&ROC granted entitlement to an increased evaluation of 20 percent for low back disability rated as degenerative arthritis of the lumbar spine. In July 1993 the M&ROC granted entitlement to an increased evaluation of 40 percent for degenerative arthritis of the lumbar spine. A November 1995 computerized tomography of the lumbar spine disclosed no evidence of herniated disc fragment or spinal stenosis. VA conducted a special orthopedic examination of the veteran in April 1996. He reported sustention of a back injury in service in 1978 while on a radiation cleanup detail. He currently complained of increasing back pain with radiation of pain into the right hip and down the left leg. He was unable to sleep on the right side due to the amount of pain in the hip and low back. The veteran found it difficult to lie on his back, and when sleeping had had to lie on his left side. He could only sit for forty-five minutes in a car before having to stop and get out because of pain. He found it difficult to go upstairs. He related he is never free of aching of the back. It was getting more difficult for him to ambulate. On examination the veteran's gait was abnormal in that he walked with a decided limp, swinging his right leg in somewhat of a small arch, rather than a heel to toe action. This was not only due to the back, but due to the fact that he was born with a congenital foot problem with navicular degeneration and heel problems. He was born with atrophy of the right leg calf musculature. The gait of the left foot was heel to toe. He was unable to walk either on heels or toes, forwards or backwards. In the erect position, the veteran had forward flexion to 75 degrees and backward extension to 10 degrees. Bending to the left was to 170 degrees and to 110 degrees to the right. Flexion was greater than 15 degrees on the left, but only 10 to 15 degrees on the right. In the sitting position he had forward flexion of 50 degrees and backward extension less than 10 degrees. Rotation to the right was difficult in that he could only get to about 90 degrees sitting. Rotation to the left was to 140 degrees. Bending right and left, left was greater than the right with ability to bend almost to a 30 degree angle to the left, but on the right side, the was ability to get to 15 to 20 degrees. The veteran was tender along the lower lumbar spine from mid lumbar area down. In the reclining position he had elevation of the right leg only to 55 degrees and passively to 65 degrees before he complained of too much pain to go further. He had a positive Lasegue's test, plus both external and internal rotation of the right leg and internal rotation of the left leg. Hoover's test was negative. Abduction of the left hip was to 35 degrees with some degree of weakness in the adduction. Abduction of the left hip was to 35 degrees with good strength brining the leg back in. Deep tendon reflexes were equal bilaterally. Goldthwaite's sign was negative. He had difficulty in getting off the table and he had to turn to his left side and push himself up, especially when the bottom of the table was removed. He had difficulty getting his shoes on, especially the left shoe, when he had to bend forward in that direction. The examination diagnoses were myofascial syndrome, facet syndrome of the lumbosacral spine with probable early degenerative changes, and probable nerve irritation from facet syndrome. Radiographic studies revealed mild degenerative changes of the lumbar spine. The veteran provided testimony before a Hearing Officer at the M&ROC in December 1997. He discussed the disabling manifestations of his service-connected low back disability. Associated with the claims file is a substantial quantity of VA outpatient treatment reports dated during the 1990's, including references to lumbar spine pathology, but primarily referable to disorders for which service connection has not been granted. An official independent medical examination for VA compensation purposes was conducted in March 1998. The examiner noted that the veteran described a back injury in service and related that he had had pain in the right upper iliac and right sacroiliac region which had bothered him intermittently ever since the injury. During the past two years the pain had become virtually constant. The pain seemed to start in the region of the superior right sacroiliac region with radiation into the superior iliac area laterally and downward into the region of the sacroiliac area. The veteran also related that he develops pain in the right groin which radiated into the medial thigh, calf and foot. This had been bothering him for the past several years. He described this as a burning sensation with a pins and needle tingly component similar to what one experiences when the leg falls asleep. Intermittently he described a throbbing pain in the middle of his right foot. The veteran reported that he had developed a foot drop several years prior for which he had been prescribed an ankle foot orthosis (AFO) which had helped him to ambulate in a normal fashion. He had been complaining of numbness from the knee distally on the right side involving the entire calf and foot for the past year and a half. Apparently his foot drop did not develop for about a year after he initially noted the sensory abnormality in the right distal lower extremity. He denied a history of typical sciatic symptoms, and bowel or bladder symptoms. Sitting or standing for more than 10 minutes or walking for more than 1/4 of a mile aggravated his back and foot pain. He avoided lifting more than 30 pounds maximum. Anteroflexion and torsional movements of the lower back also aggravated his low back pain. Pertinent clinical findings obtained on examination disclosed that peripheral pulses were full. The extremities were without deformity except for the right foot where the second digit was longer than the first. The dorsalis pedis and posterior tibial pulses were not palpable in either lower extremity. Straight leg raising produced complaints of pain in the lower back at 60 degrees of elevation on the right and 70 degrees of elevation on the left. He had percussion tenderness over the mid sacral region and over the right posterior superior iliac region. He had some point tenderness over the upper right sacroiliac joint area. Anteroflexion of the lumbar spine was restricted to 30 degrees. Extension was restricted to the neutral position and right and left lateral flexion were restricted to 20 degrees. There was no evidence of lumbar paraspinous muscle spasm. On neurological examination, speech, station, and gait were normal. The veteran reported diminished appreciation to pinprick over the entire face and most of the right upper extremity from the shoulder distally, sparing the medial aspect of the brachium. He reported diminished appreciation of pinprick of the left hand and radial volar forearm and ulnar dorsal forearm. He reported diminished appreciation of pinprick over the entire left lower extremity from the right superior iliac crest distally posteriorly and from the right groin distally anteriorly. This involved the entire right buttock, thigh, calf and foot. There was diminished appreciation of pinprick over the left foot from the malleoli distally. The sensory deficit involving the right lower extremity was very dense throughout. Motor strength was excellent in all major muscle groups of both upper extremities and the left lower extremity. He exhibited 4/5 strength in the right iliopsoas, quadriceps, hamstrings and triceps surae musculature with 3/5 strength in the right anterior compartment musculature. There was some atrophy of the right thigh musculature. The right thigh 15 centimeters above the superior patellar margin measured 57 centimeters in circumference compared with 59 centimeters on the left. The maximal circumference of the calves was 38 centimeters on the right compared with 43 centimeters on the left. Deep tendon reflexes were 2+ normal at the biceps, triceps and knees bilaterally. The brachioradialis and ankle jerk reflexes were absent bilaterally. Plantar reflexes were flexor bilaterally. Vibratory sensation was well preserved at the knee and ankle on the left, but was decreased at the knee and ankle on the right. The veteran tandem walked satisfactorily. The diagnostic impressions show lumbar strain/sprain, secondary to a service related injury in 1977, by history. The examiner recorded that the veteran's history was not strongly suggestive of a typical lumbosacral radicular syndrome. The distribution of the pain that he described in the right groin and medial thigh and calf was not typical of a specific lumbosacral radicular injury. The examiner also diagnosed right common peroneal nerve injury. The examiner noted it appeared that the veteran's foot drop was likely secondary to a significant injury to the right common peroneal nerve in the region of the lateral popliteal fossa/fibular head area. This was supported by a highly abnormal right common peroneal nerve conduction study, and by a needle electromyogram which was consistent with a significant right peroneal nerve injury. The examiner diagnosed foot drop secondary to right peroneal nerve injury. He recorded he did not think there was any relationship between the veteran's low back injury and the subsequent development of a foot drop. The examiner noted that a foot drop secondary to an L5 radiculopathy was extremely uncommon in his experience. He noted that the vast majority of patients who developed foot drop had sustained an injury to the peroneal nerve in the region of the lateral popliteal fossa/fibular head, as appeared to be the case here. On file is a counseling record dated in April 1998 referable to the veteran's application for Chapter 31 Vocational Rehabilitation benefits by VA. His only service-connected disability was reported as degenerative arthritis of the lumbar spine. Other nonservice-connected disorders were reported. It was noted that there were no direct employment options within the local labor market. During service he worked for 13 years as a Dozer Operator and Scraper Operator. His civilian employment included truck driver, maintenance worker, and service station attendant. There was no reasonable probability of a return to work due to possible surgery on his right foot. It was recommended that his file be closed due to his medical instability. A November 1998 Report of Medical Infeasibility- Unemployability is on file. Similar information was provided. It was noted that the veteran continued to have numerous medical appointments because of his orthopedic problems, especially those related to his right foot drop. He was considered infeasible for training due to service- connected as well as nonservice-connected orthopedic disorders. On file is an addendum dated in August 1999 from the physician who conducted the independent medical examination of the veteran for VA compensation purposes in March 1998. He recorded having reviewed extensive medical files which had not been made available to him at the time of the March 1998 examination. He noted that he had found nothing in the medical records which would cause him to change the opinions he offered in March 1998. He stated he did not believe that the right foot drop was related to the veteran's service- connected degenerative lumbar spine disease, but was secondary to a right common peroneal nerve injury which apparently became symptomatic around 1994. The examiner recorded there was no evidence in the veteran's medical record that he had sustained an injury to any of the right-sided nerve roots as a consequence of his original low back injury, or subsequently as a result of progressive degenerative lumbar spine disease. The history of right- sided leg pain the veteran offered was not consistent with any dermatomal distribution. The examiner did not believe that the veteran's right common peroneal neuropathy was aggravated by his chronic low back disorder. Entitlement to service connection for drop foot with impaired neurological function of the right lower extremity as secondary to service-connected degenerative arthritis of the lumbar spine. Criteria Service connection may be granted for a disability resulting from personal injury or disease contracted in the line of duty or for aggravation of preexisting injury or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection may be granted for a disorder which is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (1999); Allen v. Brown, 7 Vet. App. 439 (1995). Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The United States Court of Appeals for Veterans Claims (Court) has held that a well grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]," Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required. Heurer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (citing Murphy, at 81). The Court has held that a well grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in service injury or disease and the current disability (medical evidence). Epps v. Brown, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In determining whether a claim is well grounded, the claimant's evidentiary assertions are presumed true unless inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The Court has held that if an appellant fails to submit a well grounded claim, VA is under no duty to assist him/her in any further development of the claim. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); 38 C.F.R. § 3.159(a) (1999). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that his claim is well grounded; that is, that his claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). Because the appellant has failed to meet this burden, the Board finds that his claim of entitlement to service connection for foot drop with impaired neurological function of the right lower extremity as secondary to service- connected degenerative arthritis of the lumbar spine must be denied as not well grounded. Where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is possible or plausible is required. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The claimant does not meet this burden by merely presenting his lay opinion because he is not a medical health professional and does not constitute competent medical authority. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, his lay assertions cannot constitute cognizable evidence, and as cognizable evidence is necessary for a well grounded claim, Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), the absence of cognizable evidence renders a veteran's claim not well grounded. Turning to the veteran's claim of entitlement to service connection for foot drop with impaired neurological function of the right lower extremity as secondary to service- connected degenerative arthritis of the lumbar spine, the Board notes that there is no competent medical evidence of record linking the two disorders. In fact, the competent medical evidence of record from an independent medical specialist on file discounts any relationship between the service-connected and nonservice- connected disorders. The independent medical specialist has linked the foot drop with impaired neurological function in the right lower extremity to injury of the right peroneal nerve, the origin of which is not clear by the record, and in any event not linked to the service-connected disability of the lumbar spine. In other words, the veteran's claim is predicated on his own lay opinion. The veteran is clearly making an assertion which is beyond his competence to make. King v. Brown, 5 Vet. App. 19, 21 (1993). The veteran does not have the competency of a medical trained health professional to express an opinion as to a diagnosis and/or its etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). As it is the province of trained health care professionals to enter conclusions which require medical opinions as to causation, Grivois, the veteran's lay opinion is an insufficient basis upon which to find this claim well grounded. King, Espiritu. Accordingly, as a well grounded claim must be supported by evidence, not merely allegations, Tirpak, the veteran's claim of entitlement to service connection for foot drop with neurological impairment of the right lower extremity as secondary to his service-connected degenerative arthritis of the lumbar spine must be denied as not well grounded. As the veteran has not submitted a well grounded claim, the doctrine of reasonable doubt has no application to his appeal. Because the veteran has not submitted a well grounded claim, VA is under no obligation to assist him in the development of facts pertinent to the claim. 38 U.S.C.A. § 5107(a). The Board is cognizant, however, that the Court has held that VA may have an obligation under 38 U.S.C.A. § 5103(a) to advise the claimant of evidence needed to complete a claim. Beausoleil v. Brown, 8 Vet. App. 459 (1996). The Court has held that the section 5103(a) duty requires that, when a claimant identifies medical evidence that may complete an application but is not in the possession of VA, VA must advise the claimant to attempt to obtain that evidence. Brewer v. West, 11 Vet. App. 228 (1998). In this case, the record indicates that the claimant has identified no such evidence. The M&ROC has advised the appellant of the evidence necessary to establish a well grounded claim, and the veteran has not indicated the existence of any post service medical evidence that has not already been requested and/or obtained that would well ground his claim. McKnight v. Gober, 131 F.3d 1483, 1484-1485 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 80 (1995). In this case, the M&ROC informed the veteran of the evidence he needed to submit to support his claim, thus fulfilling its duty in this instance. Evaluation in excess of 40 percent for degenerative arthritis of the lumbar spine. Criteria Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2 (1999). Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The percentage ratings contained in the rating schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from disease and injuries incurred in or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). 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. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due to exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents 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)(1) (1999). A maximum schedular evaluation of 40 percent is provided for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a; Diagnostic Code 5292 (1999). Intervertebral disc syndrome warrants a 40 percent evaluation when the disability is severe and manifested by recurring attacks, with intermittent relief. A 60 percent evaluation is warranted when the disability is pronounced and is manifested by persistent symptoms that are compatible with sciatic neuropathy with either (1) characteristic pain and demonstrable muscle spasm, (2) absent ankle jerk, or (3) other neurological findings appropriate to the site of the diseased disc, and that also result in little intermittent relief. 38 C.F.R. § 4.71a; Diagnostic Code 5293 (1999). A 40 percent evaluation is the maximum schedular evaluation for lumbosacral strain found to be severe with listing of the 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 forward motion. 38 C.F.R. § 4.71a; Diagnostic Code 5295 (1999). A 50 percent evaluation is the maximum schedular evaluation assignable for unfavorable ankylosis of the lumbar spine. A 40 percent evaluation may be assigned for favorable ankylosis of the lumbar spine. 38 C.F.R. § 4.71a; Diagnostic Code 5289 (1999). A 60 percent evaluation may be assigned for complete bony fixation (ankylosis) of the spine at a favorable angle. A 100 percent evaluation may be assigned for complete bony fixation (ankylosis) of the spine at an unfavorable angle with marked deformity and involvement of major joints (Marie- Strumpell type) or without other joint involvement (Bechterew type). 38 C.F.R. § 4.71a; Diagnostic Code 5286 (1999). A 60 percent evaluation may be assigned for residuals of a vertebral fracture without cord involvement; abnormal mobility requiring neck brace (jury mast). A 100 percent evaluation may be assigned for residuals of a vertebral fracture with cord involvement, bedridden, or requiring long leg braces. In other cases a rating may be assigned with definite motion or muscle spasm adding 10 percent for demonstrable deformity of a vertebral body. 38 C.F.R. § 4.71a; Diagnostic Code 5285 (1999). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999). Johnson v. Brown, 9 Vet. App. 7 (1997) and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The VA General Counsel in a precedent opinion has held that diagnostic code 5293 for intervertebral disc syndrome, involves loss of range of motion and that consideration of 38 C.F.R. §§ 4.40, 4.45 is warranted. VAOPGCPREC 36-97. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of the opposite undamaged joint. 38 C.F.R. § 4.59. The Court held in Hicks v. Brown, 8 Vet. App. 417 (1995), that once degenerative arthritis is established by x-ray evidence, there are three circumstances under which compensation may be available for service-connected degenerative changes: (1) where limitation of motion of a joint or joints is objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion, and that limitation of motion meets the criteria in the diagnostic code or codes applicable to the joint or joints involved, the corresponding rating under the code or codes will be assigned; (2) where the objectively confirmed limitation of motion is not of sufficient degree to warrant a compensable rating under the code or codes applicable to the joint or joints involved, a rating of 10 percent will be applied for each such major joint or group of minor joints affected, "to be combined, not added"; and (3) where there is no limitation of motion, a rating of 10 percent or 20 percent, depending upon the degree of incapacity, may still be assigned if there is x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups. In addition, diagnostic code 5003 (5010) is to be read in conjunction with 38 C.F.R. § 4.59, and it is contemplated by a separate regulation. 38 C.F.R. § 4.40, which relates to pain in the musculoskeletal system. Finally, the Court noted that "Diagnostic Code 5003 and 38 C.F.R. § 4.59 deem painful motion of a major joint or groups caused by degenerative arthritis that is established by x-ray evidence to be limited motion even though a range of motion may be possible beyond the point when pain sets in. Hicks v. Brown, 8 Vet. App. 417 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis Initially the Board finds that the veteran's claim of entitlement to an increased evaluation for his low back disability is well grounded within the meaning of 38 U.S.C.A. § 5107(a); that is, a plausible claim has been presented. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In general, an allegation of increased disability is sufficient to establish a well grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The veteran's assertions concerning the severity of his service-connected low back disability (that are within the competence of a lay party to report) are sufficient to conclude that his claim for an increased evaluation for that disability is well grounded. King v. Brown, 5 Vet. App. 19 (1993). The Board is satisfied that as a result of the September 1998 remand of the case to the RO for further development of the record and adjudicative actions, all relevant facts have been properly developed to their full extent and that VA has met its duty to assist. Godwin v. Derwinski, 1 Vet. App. 419 (1991); White v. Derwinski, 1 Vet. App. 519 (1991). In the instant case, the veteran is service-connected for degenerative arthritis of the lumbar spine. Such is currently rated as 40 percent disabling under 38 C.F.R. § 4.71a; Diagnostic Codes 5003-5292. 38 C.F.R. § 4.27 (1999) provides that hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. The Board first notes that the currently assigned 40 percent evaluation is in excess of that provided under 38 C.F.R. § 4.71a, Diagnostic Code 5003 (1999), which applies to degenerative arthritis and sets out that such is evaluated based on limitation of motion of the affected part, like traumatic arthritis. 38 C.F.R. § 4.71a; Diagnostic Code 5010 (1999). The currently assigned 40 percent evaluation is also the maximum available for limitation of motion of the lumbar spine under 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1999). Additionally, 40 percent is the maximum rating provided under 38 C.F.R. § 4.71a, Diagnostic Code 5295, pertaining to lumbosacral strain. The 40 percent evaluation under that code contemplates a severe disability with symptoms such as listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of motion of forward bending in a standing position, a 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. 38 C.F.R. § 4.71a; Diagnostic Code 5295. In this case, the objective medical evidence does not reveal that there is any listing of the veteran's spine, that Goldthwaite's sign is positive, etc., or that the service- connected disability of the low back is productive of disablement in excess of that contemplated in the current 40 percent evaluation for severe disability. The Board notes that intervertebral disc syndrome has not been diagnosed as part and parcel of the service-connected disability of the low back rated as degenerative arthritis of the lumbar spine and, consequently, there is no basis upon which to predicate a grant of entitlement to the maximum schedular evaluation of 60 percent for intervertebral disc syndrome under 38 C.F.R. § 4.71a, Diagnostic Code 5293. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). The record is devoid of any competent evidence of ankylosis of the service-connected lumbar spine, thereby precluding assignment of higher evaluations under Diagnostic Codes 5289 and 5286. Also, the veteran has not been service-connected for residuals of a vertebral fracture; accordingly, assignment of a higher evaluation under Diagnostic Code 5285 is not warranted. In considering the potential application of the various provisions of 38 C.F.R. Parts 3 and 4 (1999), whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has also considered whether assignment of separate evaluations under the above-cited diagnostic codes is warranted and whether consideration of the principles set out in DeLuca v. Brown, 8 Vet. App. 202 (1995) is warranted. First, the Board notes that pyramiding, that is, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In this instance, diagnostic code 5293 encompasses consideration of limitation of motion, see VAOPGCPREC 36-97, spasm, neurological pain and degenerative changes. Evaluation of such symptomatology under diagnostic codes 5292 or 5295 in addition to evaluation under diagnostic code 5293 would thus clearly constitute pyramiding, compensating the veteran for identical manifestations under different diagnoses. Esteban. There is no competent evidence of separate and distinct symptomatology resulting from the veteran's back disability to warrant assignment of separate ratings. 38 C.F.R. § 4.14. With respect to DeLuca, the Court held that where the evaluation is based on limitation of motion, the question of whether pain and functional loss are additionally disabling must be considered. 38 C.F.R. §§ 4.40, 4.45, 4.59. The Court has held that where a diagnostic code is based on limited range of motion alone, the provisions of 38 C.F.R. §§ 4.40, 4.45, with respect to pain do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Moreover, it has been held that consideration of functional loss due to pain is not required when the current rating is the maximum disability rating available for limitation of motion. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The veteran, as discussed above, is currently in receipt of the maximum evaluation possible under diagnostic codes 5292 and 5295. However, the VA Office of the General Counsel has issued a precedent opinion that appears to mandate such consideration in connection with evaluation under diagnostic code 5293, held to be based on limitation of motion, even where the veteran is in receipt of the maximum percentage under the diagnostic codes pertaining to limitation of motion. VAOPGCPREC 36-97. In the veteran's case, intervertebral disc syndrome rated under diagnostic code 5293, as the Board noted earlier, has not been diagnosed as part and parcel of the service- connected disability of the low back which is limited to degenerative arthritis of the lumbar spine. On the basis of the foregoing discussion, the veteran is already in receipt of the maximum schedular evaluation of 40 percent under diagnostic code 5292 which specifically contemplates limitation of motion, pain, etc., resulting from musculoskeletal impairment attributable to the service- connected disability. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). The Board, however, is still obligated to seek all issues that are reasonably raised from a liberal reading of the documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law or regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an M&ROC conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own. In the veteran's case at hand, the Board notes that the M&ROC provided as well as discussed the criteria for assignment of an extraschedular evaluation in light of the veteran's claim. The M&ROC determined that the veteran did not meet the criteria. The Board agrees with the M&ROC's determination. The Board does not find that veteran's disability picture to be unusual or exceptional in nature as to warrant referral of his case to the Director or Under Secretary for review for consideration of extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1). In this regard, the Board notes that his service-connected low back disability has not required frequent inpatient care. It has not in and of itself markedly interfered with employment. The current schedular criteria adequately compensate the veteran for the current nature and extent of severity of his degenerative arthritis of the lumbar spine. Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. ORDER The veteran not having submitted a well grounded claim of entitlement to service connection for drop foot with impaired neurological function of the right lower extremity as secondary to service-connected degenerative arthritis of the lumbar spine, the appeal is denied. Entitlement to an evaluation in excess of 40 percent for degenerative arthritis of the lumbar spine is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals