BVA9501921 DOCKET NO. 93-08 386 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increased rating for a low back disability, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had active service from May 1975 to February 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO), which continued a 10 percent evaluation for the veteran's low back disability. Following a personal hearing held in June 1992, the hearing officer granted an increase to 20 percent for the veteran's low back disability. A September 1992 rating decision implemented the 20 percent evaluation, and the appeal continued. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran's service-connected low back disability is more disabling than currently evaluated. It is asserted that the veteran experiences muscle spasm, reduced ability to perform various activities, and persistent radiating pain. Therefore, it is contended that a disability evaluation from 30 to 50 percent should be assigned. 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 record supports the grant of a 40 percent evaluation for the veteran's service-connected low back disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's low back disability is manifested by pain requiring medication for relief, moderate limitation of motion, mild paralumbar muscle spasm, mild degenerative disc disease of L5 - S1 with first degree spondylolisthesis of L5, and associated nerve root irritation; functional impairment is severe. CONCLUSION OF LAW An evaluation of 40 percent for the veteran's low back disability is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, Part 4, Codes 5292, 5293, 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. We are satisfied that all relevant facts have been properly developed and that no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Service medical records reflect that the veteran was seen with complaints of low back pain in September and October 1975. The report of a December 1975 service medical board states the primary diagnosis as spondylolisthesis, Grade I, L5 on S1, which existed prior to service, but was aggravated during service. The report of a June 1976 VA examination states that range of motion of the low back was accomplished in forward flexion to 85 degrees, backward extension was to 25 degrees, lateroflexion was to 35 degrees, bilaterally, and rotation was to 30 degrees, bilaterally. Straight leg raising was accomplished to 60 degrees, bilaterally. X-rays of the lumbosacral spine were normal. The diagnoses included low back syndrome. A July 1976 rating action granted service connection for low back syndrome and assigned a noncompensable evaluation. The report of a January 1986 VA examination states that range of motion of the lumbar spine was accomplished to 35 degrees in forward flexion, extension was to 10 degrees, lateroflexion was to 10 degrees, and rotation was to 20 degrees. It was noted that the veteran exerted minimal effort in range of motion testing. Straight leg raising was accomplished to 90 degrees, bilaterally, while sitting. X-rays of the lumbosacral spine revealed an increase of the lumbosacral angle, spondylolysis with spondylolisthesis and minimal localized osteoarthritic changes. The diagnoses included spondylolisthesis of L5 over S1 with spondylolysis and minimal degenerative arthritis. A March 1986 rating decision granted a 10 percent evaluation for low back syndrome. That evaluation remained in effect until the increase to 20 percent which was previously noted. The report of a June 1989 magnetic resonance imaging of the veteran's lumbar spine and private medical records reflect that the veteran had bilateral spondylolysis of L5 with Grade I spondylolisthesis and early disc degenerative changes at that level with slight focal disc bulge, but no frank focal disc herniation. A February 1990 record from William B. Redmon, M.D., a private orthopedist, states that the veteran reported low back pain radiating into the right buttock, posterior thigh, and a little bit to the lateral calf. It states that straight leg raising was suggestibly positive, as it did produce back and leg pain, but not quite the muscle grab that would normally exist in truly positive straight leg raising. A back support was recommended and surgical intervention was considered. The report of an October 1991 VA examination states that straight leg raising was accomplished on the left to 90 degrees with no distress. On the right, it was accomplished to 70 degrees with complaints of right low back pain. The diagnoses included history of spondylolisthesis, low back pain with radiation into the right lower extremity. The report of a December 1991 VA CT scan of the lumbar spine indicated no apparent evidence of acute disc herniation. A February 1992 letter from Dr. Redmon states that he had followed the veteran for the last two years. He notes that the veteran had Grade II spondylolisthesis at L5 - S1 with associated nerve root irritation. He states that this was a cause of low back pain and a cause of sciatic pain as well. He would consider the veteran in the disability range of 30 to 50 percent. During a personal hearing held in June 1992, the veteran testified that he had constant low back pain which was increased with activity. He indicated that medications for his back pain made him drowsy. He testified that he worked as a realtor, but missed 1 or 2 days per week because of his back. Reports of VA X-rays, electromyogram, nerve conduction studies, and neurology, and orthopedic examinations conducted in August 1992, reflect that the veteran reported he was unable to accomplish flexion. Observation, however, revealed that forward flexion was accomplished to 60 degrees without list or spasm, twisting was accomplished to 25 degrees, bilaterally, and lateral bending was accomplished to 35 degrees, bilaterally. The veteran complained of constant pain which prevented him from standing for any length of time and affected his sleep. Straight leg raising produced some back pain. He was able to squat, but indicated he was unable to walk on his toes and heels. There was no clear-cut neurological deficit on sensory examination. Electromyogram testing revealed peroneal nerve involvement in the right lower extremity. Diagnoses included spondylolisthesis, Grade I, and nerve root irritation. In reaching its decision, the Board has considered the complete history of the disability in question, as well as the current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1993). The nature of the original injury has been reviewed and the functional impairment which can be attributed to pain or weakness has been taken into account. 38 C.F.R. § 4.40 (1993). Further, the Board finds that in this case, the disability picture is not so exceptional or unusual so as to warrant an evaluation on an extraschedular basis. It has not been shown that the low back disability has necessitated frequent periods of hospitalization or caused marked interference with employment. While the Board notes that the veteran has indicated that he has switched occupations, primarily due to his back disability, as well as experiencing some interference with current employment, marked interference with current employment is not demonstrated. Therefore, the evidence does not warrant an extraschedular evaluation, as a schedular evaluation is available which most nearly approximates the degree of disability exhibited by the veteran. A 40 percent evaluation is granted under the provisions of 38 C.F.R.§ Part 4, Code 5293. The record reflects that the veteran has indicated that he has ongoing muscle spasms and pain. The clinical evidence of record indicates that muscle spasms have been demonstrated on occasion. There is also clinical evidence of nerve root irritation and the veteran has testified of radiating pain. With consideration of the provisions of 38 C.F.R. § 4.7, a 40 percent evaluation is assigned for severe intervertebral disc syndrome on the basis of recurring attacks with intermittent relief. A higher evaluation is not for assignment because intervertebral disc disease productive of little intermittent relief characteristic of pronounced disability has not been shown or approximated. The Board notes that the orthopedic examiner in August 1992 was of the opinion that the veteran was exaggerating his condition. With respect to a rating greater than 40 percent, the evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. ORDER An increased rating for low back syndrome is granted, to the extent indicated, subject to the laws and regulations governing the payment of monetary benefits. WAYNE M. BRAEUER 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.