BVA9505800 DOCKET NO. 93-25 458 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an evaluation in excess of 10 percent for lumbar syndrome. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeffrey J. Schueler, Associate Counsel INTRODUCTION The veteran served on active duty from October 1989 to March 1991. In a February 1995 letter, copies of the medical literature cited in this decision were furnished to the veteran's representative in accordance with Thurber v. Brown, 5 Vet.App. 119 (1993). A response was received in March 1995 indicting that no further evidence, argument, or comment would be submitted. CONTENTIONS OF APPELLANT ON APPEAL The veteran argues that his low back disability has progressively worsened and that the resulting severity of his low back disorder warrants an evaluation in excess of 10 percent disabling. He asserts that while on active duty he had a bone scan and a computerized tomography (CT) scan showing a number of broadly bulging discs representative of a herniated disc, and maintains that the disability should be more properly evaluated using Diagnostic Code 5293. DECISION OF THE BOARD The Board of veterans' Appeals (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 claim of entitlement to an evaluation in excess of 10 percent for lumbar syndrome. FINDINGS OF FACT 1. All available relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained by the regional office (RO) insofar as possible. 2. The veteran's service-connected lumbar syndrome is manifested by slight limitation of motion of the lumbar spine, no muscle spasm, pain on extreme forward flexion, and minimal decreased pinprick sensation on the right leg. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for lumbar syndrome are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.10, 4.40, 4.71a, Diagnostic Codes 5292, 5293, 5295 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board initially finds that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991); that is, the claim is not inherently implausible. We also find that the facts relevant to the issue on appeal are properly developed and that the Department of Veterans Affairs (VA) satisfied its statutory obligation to assist the veteran in the development of the facts pertinent to the claim. The veteran argues that the VA examination conducted in October 1992 was inadequate for purposes of evaluation of his disability including disc problems. He also contends that the X-ray study was inadequate because it was interpreted as showing a normal lumbar spine. A review of the October 1992 VA examination report indicates that the examination report and X-ray contain specific findings concerning the pertinent criteria with no indication that the examination or X-ray study was anything other than thorough and complete. On appellate review, we see no areas in which further development may be fruitful. Historically, the veteran injured his back after falling during active service. A November 1990 service medical record indicated that the veteran was treated with traction for 10 days and with physical therapy, that a bone scan was negative, that a November 1990 CT scan showed prominent central bulging disc versus mild focal central herniated nucleus pulposus, with no numbness or tingling. The examiner also reported that the veteran complained of pain when bending or picking up objects. Examination revealed no deformity and no tenderness to palpation, no costovertebral angle tenderness, negative straight leg raising, and 5/5 muscle strength. The veteran could reach to 18 inches from the floor when bending over. The veteran was service connected for chronic lower back pain in an August 1991 rating decision and assigned a noncompensable evaluation. In a November 1992 rating decision, the disability was redefined as lumbar syndrome and assigned a 10 percent evaluation. Disability evaluations are determined by application of a schedule of ratings based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). The inquiry into disability evaluations centers on the ability of the body or system in question to function in daily life with specific reference to employment. 38 C.F.R. § 4.10 (1993). In evaluating claims for increased ratings, we must evaluate the veteran's condition with a critical eye towards the lack of usefulness of the body or system in question to self support. 38 C.F.R. § 4.10 (1993). A disability of the musculoskeletal system is primarily 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. Weakness is as important as limitation of motion. 38 C.F.R. § 4.40 (1993). If a question arises as to which of two evaluations is to be assigned, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (1993). The veteran was examined at an October 1992 VA examination. The examiner reported that since his inservice injury the veteran has had recurrent back pain, that attacks occur anywhere from one to two times per week, that he cannot lift anything, and that the pain is relieved by lying down and is worse on bending and lifting. The examiner noted that there were no postural abnormalities nor fixed deformities, that the veteran had no spasm and walked on toes and heels, that straight leg raising was negative, that deep tendon reflexes were 1+, that there was minimal decreased pinprick sensation to the medial and anterior surfaces of the right side, and that there was no motor loss. Range of motion testing showed that forward flexion was to 65 degrees, that backward extension was to 30 degrees, that left lateral flexion was to 30 degrees, that right lateral flexion was to 35 degrees, that rotation to the left was to 35 degrees, and that rotation to the right was to 30 degrees. The examiner indicated that the veteran stated he had pain on extreme forward flexion and right lateral flexion, and concluded with a diagnosis of lumbar syndrome by history. An x-ray showed that the vertebrae of the lumbosacral spine were of normal height and density, that the intervertebral disc spaces were well preserved, that the posterior elements were unremarkable, and that there was no evidence of fracture, dislocation, or developmental defects. The impression was of a normal lumbosacral spine. The veteran testified at a June 1993 personal hearing that he had such severe back pain approximately eight months previously that he had to remain in bed for about two and a half days, resulting in sharp pain and preventing him from standing or sitting. He stated that he did not seek medical attention and used heating lotion on his back and took aspirin. The veteran described constant dull pain at the present, becoming more pronounced on lifting, standing, or remaining in one position for any length of time. He described numbness in his right leg down to his ankles and noted that both legs fall asleep "a lot." He testified that he had no muscle spasm and that he has decreased limitation of motion as compared to when he entered active service. He reported that he did not use a back brace, that he took aspirin for pain, and that he had not received any kind of medical treatment after active service except for the VA examination. He noted that he was told during active service that he had a herniated disc. The veteran's disability is currently evaluated under Diagnostic Codes 5295 and 5292 for lumbosacral strain and limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a (1993). A 10 percent evaluation may be assigned under Diagnostic Code 5295 for lumbosacral strain with "characteristic pain on motion." A 20 percent evaluation is warranted for lumbosacral strain with "muscle spasm on extreme forward bending, loss of lateral spine motion," or "unilateral, in standing position." A 10 percent evaluation is warranted under Diagnostic Code 5292 where there is "slight" limitation of motion, and a 20 percent evaluation may be assigned for "moderate" limitation of motion of the lumbar spine. The veteran argues that he is more properly evaluated under Diagnostic Code 5293 where a 20 percent evaluation may be assigned for "moderate; recurring attacks" of intervertebral disc syndrome. Normal flexion of the lumbar spine is 95 degrees; normal extension backward is 35 degrees; normal lateral flexion is 40 degrees; and normal rotation is 35 degrees. VA Physician's Guide for Disability Evaluation Examinations 2-10 (1985). The October 1992 VA examination report shows that the veteran's forward flexion was measured at 65 degrees, that backward extension was measured at 30 degrees, that left lateral flexion was measured at 30 degrees and right lateral flexion at 35 degrees, and that rotation to the left was measured at 35 degrees and rotation to the right at 30 degrees. These findings show that limitation of flexion is reduced as little as 5 to 10 degrees from normal for extension, lateral flexion, and rotation, or as much as 30 degrees less than normal for forward flexion. Overall, the data do not indicate more than slight limitation of motion that would justify the assignment of a higher evaluation on the basis of limitation of motion under Code 5292. Nor does the evidence show muscle spasm on extreme forward bending or loss of lateral spine motion, although the veteran stated that he had pain on extreme forward flexion and right lateral flexion, that might warrant a 20 percent evaluation using Diagnostic Code 5295. Moreover, the x-ray report accompanying the October 1992 VA examination showed that the disc spaces were well preserved, and the examiner indicated in the examination report that there was minimal decreased pin prick sensation in the right leg. As such, the service-connected low back disorder would not warrant an evaluation greater than "mild" under Diagnostic Code 5293. Recurring attacks of disc pathology are not shown post-service, nor was disc pathology found on VA examination. In addition, the current evaluation contemplates exacerbations of the low back disorder. See 38 C.F.R. § 4.1 (1993). In light of the above analysis, it is the determination of the Board that the preponderance of the evidence is against the claim of entitlement to an evaluation in excess of 10 percent for lumbar syndrome. Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4 (1993) as mandated in Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, we find the evidence discussed above does not suggest the veteran's lumbar syndrome presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards as to warrant the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1993). ORDER Entitlement to an evaluation in excess of 10 percent for lumbar syndrome is denied. WILLIAM J. REDDY 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.