Citation Nr: 0007222 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 94-28 839 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for a lumbar syndrome. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. M. Ivey, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from June 1969 to December 1971 and from July 1973 to February 1992. This appeal arose from a March 1993 rating decision of the Atlanta, Georgia, Department of Veterans Affairs (VA), Regional Office (RO), which granted service connection for the benefit sought and assigned a noncompensable disability evaluation. In June 1995, the RO increased the veteran's disability evaluation to 10 percent. It has been 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; however, the Board is not precluded from considering whether referral to the appropriate first-line official is required. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Moreover, the Court has also held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only when circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218,227 (1995). Having reviewed the record with these holdings in mind, the Board finds no basis for action on the question of the assignment of an extraschedular rating. The Board remanded the claim in January 1997 for further development. All requested development has been completed. FINDING OF FACT The veteran's lumbar syndrome is manifested by negative straight leg raises to 90 degrees; x-ray findings of degenerative joint disease of L1, L2 and L3; and no evidence of fatigue, weakness or incoordination. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for the service-connected lumbar syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, Codes 5003, 5292, 5295 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends, in essence, that his lumbar syndrome has increased in symptomatology. Consequently, the disability is far more disabling than his current evaluation suggests. Therefore, he believes that he is entitled to the benefit sought. The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim, which is plausible. It is also found that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which should be obtained. Therefore, no further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Under the applicable criteria, 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 (West 1991); 38 C.F.R. Part 4 (1999). When a question arises as to which of two evaluations shall be assigned, 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). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 states that, in cases of functional impairment, evaluations are to based upon lack of usefulness, and medical examiners must furnish, in addition to etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of the disability upon a person's ordinary activity. This evaluation includes functional disability due to pain under the provisions of 38 C.F.R. § 4.40. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. In evaluating a service-connected disability involving a joint rated on limitation of motion, the Board must also consider functional loss due to weakness, fatigability, incoordination or pain on movement of joint under the provisions of 38 C.F.R. § 4.45 (1999). The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board notes that this claim is based on the assignment of an initial rating for a disability following an initial award of service connection for that disability. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that the rule articulated in Francisco did not apply to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Fenderson, 12 Vet. App. at 126; Francisco, 7 Vet. App. at 58. The veteran was awarded service connection for lumbar syndrome in March 1993; a noncompensable evaluation was assigned. In June 1995, the RO increased the veteran's disability evaluation to 10 percent. The VA treatment records show that veteran complained of low back pain in August 1993. Upon examination his back muscles were tight. The assessment was low back pain. Between January 1994 and January 1997 the veteran was seen for complaints of back pain and recurrent right sacroiliac dysfunction. At the August 1994 VA examination the veteran's back was normal with full flexion and no tenderness. Straight leg raising was negative. Neurologically his back was intact except for minimal numbness in the right L5-S1 dermatomes. The pulses in the feet were full and deep tendon reflexes were symmetrical and physiologic. Babinski was normal and the veteran's gait was normal. Light calisthenics were done without difficulty. At the August 1996 Travel Board hearing the veteran testified that the back pain radiated down his right leg and that his leg became numb or stung. He stated that when he sat for two to three hours the pain really bothered him. He would have to walk to keep his leg from going numb. The veteran reported that he began receiving shots in his back about one year prior to the hearing. He indicated that he had a limited range of back motion without the shots. The veteran testified that he had muscle spasms depending on the activity, but that the spasms lasted a couple of minutes. Pursuant to the Board's remand the veteran was afforded another VA examination, in July 1997, to assess the severity of his lumbar syndrome. He walked quickly and without evidence of pain. The veteran dressed and undressed without difficulty and rapidly. He was able to squat down to his haunches and up without difficulty. The veteran could heel and toe walk without problems. The patellar and Achilles' reflexes were normal bilaterally. Evaluation for light touch sensitivity, proprioception and pain were all within normal limits in the lower extremities. The straight leg-raising test was negative to 90 degrees bilaterally. Lumbar spine forward flexion was to 95 degrees and backward extension was to 35 degrees. Right and left lateral flexion was to 40 degrees and rotation was to 35 degrees. These maneuvers were performed without difficulty during and throughout motion. There was no evidence of pain on motion, deformity, excess fatigability, incoordination, weakened movement or other functional limitations. The examiner opined that the effect of the veteran's lumbar syndrome on his ordinary activity and his ability to procure and obtain employment was minimal. The veteran drove a truck on a 200-mile radius and apparently experienced very little or no discomfort doing so. The diagnosis was low back pain, intermittent, due to degenerative disc joint disease at the level of L1, L2 and L3. In June 1994, the veteran had X-rays of the lumbosacral spine that revealed degenerative joint disease of L1, L2 and L3. According to the applicable criteria, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. Part 4, Code 5003 (1999). A 10 percent evaluation is warranted for slight limitation of motion of the lumbar spine; a 20 percent evaluation requires moderate limitation of motion. 38 C.F.R. Part 4, Code 5292 (1999). A 10 percent evaluation is also warranted for lumbosacral strain with characteristic pain on motion; a 20 percent evaluation requires muscle spasm on extreme forward bending or unilateral loss of lateral spine motion in the standing position. 38 C.F.R. Part 4, Code 5295 (1999). Initially, the Board finds that Diagnostic Code 5293 is inappropriate as the medical evidence of record reflects negative neurological clinical findings. The veteran's neurological examination revealed that the veteran's tone; bulk and strength were normal throughout. There was no obvious deformity in his back. Straight leg raise was negative and Patrick's was positive on the left. The Diagnosis was chronic low back pain. There was no evidence of a radiculopathy by neurologic examination. After a careful review of the evidence of record, it is found that entitlement to an increased evaluation for the service- connected lumbar syndrome is not warranted. The objective evidence of record does not indicate that the veteran's lumbar syndrome has resulted in moderate limitation of motion. The most recent examination shows only slight impairment in motion. Nor does the evidence demonstrate the presence of muscle spasms or the unilateral loss of lateral spine motion in a standing position. Clearly, the evidence does not demonstrate entitlement to an evaluation in excess of 10 percent pursuant to 38 C.F.R. Part 4, Codes 5292 or 5295. Moreover, there is no indication of increased disability due to fatigue, weakness or incoordination. Finally, while the examiner opined that the effect of the veteran's lumbar syndrome on his ordinary activity and his ability to procure and obtain employment was minimal. In conclusion, it is found that the preponderance of the evidence is against the veteran's claim for an increased evaluation for the service-connected lumbar syndrome. ORDER An increased evaluation for the service-connected lumbar syndrome is denied. C. P. RUSSELL Member, Board of Veterans' Appeals