Citation Nr: 0002419 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 98-14 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an evaluation in excess of 40 percent for lumbar spine arthritis/degenerative joint/disc disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Howard M. Scott, Associate Counsel INTRODUCTION The veteran had active service from November 1973 to July 1983. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied the veteran's claim on appeal. The veteran appealed those decisions to the BVA and the case was referred to the Board for appellate review. FINDINGS OF FACT 1. The veteran's claim for an increased rating is plausible and all relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. Lumbar spine arthritis/degenerative joint/disc disease is manifested by severe limitation of motion, degenerative changes of the lumbar spine, and radiculopathy. CONCLUSIONS OF LAW 1. The claim of entitlement to an increased rating for a low back disability is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The schedular criteria for an evaluation of 60 percent for lumbar spine arthritis/degenerative joint/disc disease, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, Part 4, Diagnostic Code 5293 (1999); VAOPGCPREC 36-97 (December 12, 1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Private treatment records from June 1995, from Holston Valley Hospital in Kingsport, Tennessee, note that the veteran complained of low back pain. There was no numbness, tingling or radiation of pain into the extremities, but there was general tenderness in the lumbosacral paraspinal musculature. Range of motion, deep tendon reflexes and strength were all normal and straight leg raise testing was negative. X-rays revealed narrowing at L2-3 and L4-5. The impression was degenerative disc disease, lumbar spine. VA treatment records from June 1995 note that the veteran complained of constant pain, described as mild, or 5 out of a possible 10. A December 1995 VA examination report notes that the veteran complained of constant low back pain that would occasionally radiate to the right hip. He also stated that he was unable to lift more than 40 lbs. and that he had difficulty climbing stairs. The veteran's gait was observed to be "within normal limits" but on rising from a chair, he moved slowly "with upper torso thrust forward, pushing himself out of the chair." In addition he stood with hips thrust forward, with a slight pelvic tilt. There were no fixed deformities. Flexion was to 60 degrees, extension was to 10 degrees, lateral flexion was to 35 degrees on the left, 30 degrees on the right, and rotation was to 30 degrees on the left, 35 degrees on the right. The veteran exhibited pain on motion, especially with backward extension and right lateral flexion. Deep tendon reflexes in the lower extremities were 3/4 in the right patella, 2/4 in the left patella, and 1+ and symmetrical in the Achilles. The examiner diagnosed history of mechanical low back pain and degenerative arthritis of the lumbar spine. The examiner said that he was unable to state whether the degenerative arthritis was caused by the service- connected mechanical low back pain. A March 1996 VA examination report noted that the veteran complained that his back "goes out occasionally," with increased pain that would take three to four days of bed rest to resolve. In addition, he complained of a constant dull achy pain in the lumbar spine, exacerbated by activity, in particular by flexion or extension of the lumbar spine, and of pain shooting into the right hip. He denied sciatica, bowel or bladder complaints, or numbness or tingling in the lower extremities. He had a moderately left antalgic gait with a small degree of anterior pelvic tilt on ambulation. There was no fixed deformity and musculature of the back was normal with no tenderness. There was mild lumbar spasm present bilaterally and no trigger points could be identified. Flexion was to 45 degrees, extension was to 15 degrees, lateral flexion was to 30 degrees bilaterally, and rotation was to 45 degrees bilaterally. The examiner commented that the veteran displayed "much subjective complaint of pain with all range of motion, including near constant sighing; however, there were no objective signs of pain." The veteran had full strength in the lower extremities, patellar and ankle jerk reflexes were brisk and equal bilaterally, there was no clonus present, and Romberg's test was negative but straight leg raise testing was positive at 75 degrees bilaterally. Straight leg raise testing while seated, however, was negative at 90 degrees. X-rays of the lumbar spine revealed mild anterior osteophyte formation at the superior border of L3, and a mild osteophyte formation at the superior border of L2. No posterior osteophytes were visible. The alignment of the spine was normal and there was no facet degeneration. The examiner's impression was musculoskeletal or mechanical low back pain with no neurological abnormalities and only mild degenerative disease seen. The examiner stated that the X-ray findings were consistent with the veteran's age and weight, and "not as severe as would be expected from the patient's claimed symptoms." In conclusion, he said that he believed that back strain and degenerative arthritis were unrelated. VA treatment records from September 1996 to October 1998 noted continuing treatment for back pain. A computed tomography (CT) scan taken in September 1996 revealed moderate central canal stenosis at the L4/5 level "from a number of contributing factors," with bilateral disc bulges at L2/3. In December 1996 the veteran complained of constant back pain, with right hip pain radiating to the right leg, without numbness or tingling in the lower extremities. Straight leg raise testing was negative bilaterally, and deep tendon reflexes were 2+/4+ bilaterally. In May 1997, the veteran was seen after having been involved in an automobile accident the previous month. The records noted that the accident "markedly increased the pain intensity." He complained of midline lumbar pain with radiation into the right lower extremity. Review of systems was noted to be positive for degenerative joint disease and disc bulge. He was observed to stand with a normal lumbar lordosis, compression of the spine did not cause symptoms to flare up, there was "moderate restriction of trunk range of motion," with pain at the end of all ranges of motion. Passive motion testing of individual spinal segments revealed "scattered mild tightness without a major focal deficit" in the lumbar spine. Straight leg raise testing was to 70 degrees and hip abduction was to 45 degrees. There was moderate tightness of the quadriceps and gluteals and normal flexibility of the hip rotators and flexors. The musculature of the trunk and hip girdle showed moderate weakness and there was atrophy of the back extensor muscles with scattered myalgia on palpation. Pain behaviors were appropriate and deep tendon reflexes were normal. The treating physician stated that the examination did not suggest disc herniation with radiculopathy or other surgical disorder. The physician further opined that the veteran's prognosis for returning to at least his former level of chronic pain was good, and that his state prior to the recent accident "may be related to the strength loss issues noted above." A June 1997 X-ray report noted an impression of "degenerative disc disease predominantly involving the L4-L5 level with lesser involvement at the L2-L3 level . . . . There is a mild to moderate degrees of central canal stenosis noted at the L4-L5 level." Treatment records from September 1998 note that the veteran had "minimal movement of [the] trunk secondary to pain," and that all movements were painful. His posture revealed a flattened upper lumbosacral spine, strength in the lower extremities was 5/5 bilaterally, flexibility in the hamstrings was good bilaterally, and fair in the quadriceps bilaterally, and straight leg raise testing was positive bilaterally at 45 degrees. In October 1998, the veteran was noted to be using a transcutaneous electrical nerve stimulation (TENS) unit "with good results." At his September 1998 personal hearing, the veteran testified that he was currently unemployed, and that his back pain prevented from working as a sheet metal mechanic and as a secretary. He said that because of his back pain, he was only capable of bending over "to a certain degree," that he could only sit for a matter of minutes, and that he could not walk for more than one or two blocks. He said that the pain felt like a burning sensation located in the lower back, and that it would sometimes radiate out to each side as a sharp pain, and also into the hips and the legs. He said "I have a lot of spasms," and that these would shoot down his legs and "go all over." He also described experiencing numbness in the legs, on occasion, and of being incapacitated about once a month. He said that his legs sometimes feel weak and had caused him to fall, most recently four months earlier. He testified that his back pain makes it difficult to get comfortable at night and thus difficult to sleep. In November 1998, the RO recharacterized the veteran's disability as degenerative disc disease, lumbar spine, and increased the evaluation to 40 percent, effective September 1995. In February 1999, the RO again recharacterized the veteran's disability, this time as lumbar spine arthritis/degenerative joint/disc disease. Disability evaluations are based on the comparison of clinical findings with the relevant schedular criteria. 38 U.S.C.A. § 1155. While a disability must be evaluated in relation to its history, 38 C.F.R. § 4.1, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 (1999). When a condition that is not listed in the VA Schedule for Rating Disabilities is encountered, VA may rate under a closely related disease or injury in which not only the functions affected but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (1999). The veteran's disability has been evaluated unde 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5292-5293. Under DC 5292, a 40 percent evaluation is the maximum contemplated evaluation and is warranted for severe limitation of motion of the lumbar spine. Under DC 5293, a 60 percent evaluation is warranted for pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, little intermittent relief. A 40 percent evaluation is warranted for severe symptoms, manifested by recurring attacks with intermittent relief. Moderate symptoms, with recurring attacks, warrant a 20 percent evaluation, and mild symptoms, a 10 percent evaluation. While the September 1998 treatment records noted that the veteran had minimal movement secondary to pain, by the following month, the veteran's use of the TENS unit was showing "good results." The most recent VA examination report revealed moderate to severe limitation of motion, with pain at the limits of motion. In May 1997, after suffering an automobile accident, the veteran's private physician described "moderate restriction of trunk range of motion," with pain at the end of all ranges of motion. In view of the veteran's complaints of pain on motion and the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 (1999), and DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995), the Board finds that limitation of motion is severe. However, as the veteran is already receiving the maximum contemplated evaluation under DC 5292, an increased evaluation is not warranted for limitation of motion of the lumbar spine. VAOPGCPREC 36-97 provides that the provisions of 38 C.F.R. §§ 4.40 and 4.45, must be considered when a veteran receives less than the maximum schedular rating under Diagnostic Code 5293, even when they are receiving the maximum evaluation under a diagnostic code relating to limitation of motion. With consideration that severe limitation of motion has been demonstrated as well as muscle spasm and radiculopathy, the Board concludes that the evidence is in equipoise with respect to whether or not symptoms associated with the veteran's service-connected lumbar spine disability more nearly approximate the criteria for pronounced intervertebral disc syndrome. In resolving all doubt in the veteran's behalf, the Board concludes that a 60 percent evaluation under Diagnostic Code 5293 for service-connected disability of the lumbar spine is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.7. The Board is required to address the issue of entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999) only in cases where the issue is expressly raised by the claimant or the record before the Board contains evidence of "exceptional or unusual" circumstances indicating that the Rating Schedule may be inadequate to compensate for the average impairment of earning capacity due to the disability. See VAOPGCPREC 6-96 (August 16, 1996). In this case, the record before the Board does not contain evidence of "exceptional or unusual" circumstances that would preclude the use of the regular Rating Schedule. In addition, the medical record does not show that the veteran's back disability has necessitated frequent periods of hospitalization. On the contrary, the medical record indicates that the veteran is receiving infrequent treatment, on an outpatient basis. The Board therefore finds that criteria for submission for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996). . ORDER An increase rating of 60 percent for lumbar spine arthritis/degenerative joint/disc disease is granted, subject to the laws and regulations governing the payment of monetary benefits. MILO H. HAWLEY Acting Member, Board of Veterans' Appeals