BVA9503945 DOCKET NO. 93-25 953 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for lumbosacral degenerative disc disease, with low back strain, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for right knee strain, currently evaluated as 10 percent disabling. WITNESSES AT HEARING ON APPEAL The appellant and his wife ATTORNEY FOR THE BOARD Kay F. Mayer, Associate Counsel INTRODUCTION The veteran served on active duty from October 1986 to April 1992. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a June 1992 rating decision which denied an increased rating for degenerative disc disease with low back strain. Subsequently, a March 1993 rating action by the regional office continued that denial and denied an increased rating for right knee strain, currently evaluated as 10 percent disabling. The appellant and his wife testified at a hearing before a member of the Board at the regional office in November 1993. The appellant was notified in August 1994 by the Board that the member before whom he testified on November 16, 1993, at Waco is no longer with the Board and would not be available to sign the decision the Board would make on the appellant's appeal. He was given the opportunity to request another hearing by responding within 30 days from the date of that notification. On a form received in February 1995 the appellant informed the Board that he did not desire another hearing, and another member of the Board has made the determination involving his appeal. The Board has noted that in his testimony before the Board in November 1993, the appellant indicated that he wished to make a claim for service connection for a left knee disorder. Because that issue has not been considered by the regional office, the Board will not include it in its consideration of the claims on appeal. The regional office should take further appropriate action in developing that claim. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he is currently experiencing severe constant low back pain and employment limitations that are reflective of a worsening of his low back disorder and that a higher evaluation of his back disorder is called for. He also maintains that he is having almost constant pain in his right knee, that it locks at times and sometimes it gives away and that that service-connected disorder should receive a higher evaluation. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of evidence and material of record in the appellant's claims file, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against a rating in excess of 10 percent for degenerative disc disease with low back strain and a rating in excess of 10 percent for right knee strain. FINDINGS OF FACT 1. All relevant evidence necessary for disposition of the appeal has been obtained by the regional office. 2. The appellant's degenerative disc disease with low back strain is manifested by subjective complaints of constant pain that increases with activity and objective medical evidence of slight limitation of back motion, no evidence of atrophy, contractures or muscle spasm, a normal neurological exam and magnetic resonance imaging and other diagnostic study results showing mild disc protrusion without neurological significance at L5-S1 and no objective evidence of radiculopathy. No more than mild impairment is shown. 3. The appellant's right knee strain is manifested by subjective complaints of almost constant knee pain with occasional locking and giving way, objective evidence of full range of motion, including squatting, heel and toe walking and no objective medical evidence of instability. No more than slight impairment is shown. CONCLUSIONS OF LAW 1. The schedular criteria for a 20 percent evaluation for degenerative disc disease with low back strain are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b), Part 4, §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Codes 5292, 5293, 5295 (1993). 2. The criteria for an evaluation in excess of 10 percent for right knee strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b), Part 4, §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Code 5257 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we find that the appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), in that he has presented a claim that is not implausible. This being so, we must examine the records to determine whether the Department of Veterans Affairs (VA) has a further obligation to assist in the development of this claim. 38 U.S.C.A. § 5107(a). After reviewing the record, we are satisfied that all relevant facts have been properly developed and that no useful purpose would be served by remanding the case with instructions to provide additional assistance to the appellant. The evidentiary record includes service medical records, VA examination and treatment records beginning right after service as well as recent private treatment records which detail his entire history of disabilities, particularly as they affect the ordinary conditions of daily life, including employment. The Board finds that the VA examination, magnetic resonance imaging scan, and electromyogram and nerve conduction velocity studies conducted in 1992 and the VA outpatient treatment records at that time, as well as the private chiropractic records involving evaluation and treatment in 1993 adequately describe the severity of his service-connected disabilities and, when considered together with the other clinical records, are sufficiently detailed and comprehensive regarding the nature and severity of the appellant's service- connected disabilities. Therefore, we conclude that the evidence is adequate for purposes of reaching a fair and well-reasoned decision in this case and the duty to assist the veteran as contemplated under the provisions of 38 U.S.C.A. § 5107(a) has been satisfied. I. An Evaluation in Excess of 10 Percent for Degenerative Disc Disease with Low Back Strain Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity under VA's Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. We have reviewed the history of the appellant's service-connected degenerative disc disease with low back strain particularly as it affects the ordinary conditions of daily life, including employment, as required by the provisions of 38 C.F.R. §§ 4.1, 4.2 and 4.10 and other applicable regulations. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The service medical records reveal that in September 1991 the appellant complained of low back pain with leg movement and situps and a history of low back pain since December 1990. The assessment was mechanical low back pain. He reported he had initially injured his low back lifting a heavy object, and the pain radiated up his back currently. In November he continued to complain of low back pain and it was noted he was currently undergoing physical therapy without improvement. The pain was in the center of his back and did not radiate to his legs. The assessment continued to be musculoskeletal low back pain. In December, the appellant's complaints of back pain continued; however, an X-ray was within normal limits. A CT scan conducted in December 1991 was without abnormalities. His separation examination in March 1992 indicates he had a normal spine and other musculoskeletal system; however, the report of medical history indicated he had low back pain after injuring his back in Southwest Asia in December 1990 and he indicated he had recurrent back pain and an inability to bend over, do situps, or run due to his back pain. An April 1992 rating decision granted the appellant service connection for low back strain and assigned a 10 percent evaluation. Later that month, the appellant underwent a VA examination and reported he had injured his back in December 1990 while lifting a heavy object. It was reported that he reinjured it again in 1991 when he jumped out of a tank and had continued to have problems with his back. He was currently taking Motrin, 800 milligrams, three times daily and occasionally Tylenol No. 3 for severe pain. Examination revealed tenderness to palpation over the right and left lumbar paraspinal muscles and over the lumbosacral joint. Range of motion was flexion to 75 degrees, extension to 15 degrees, lateroflexion to the right and left to 25 degrees and rotation right and left to 30 degrees. Straight leg raising on the right caused pain at 35 degrees and on the left at 45 degrees. It was noted there was no atrophy or contractures. A neurological examination was within normal limits. Deep tendon reflexes were equal and normal, bilaterally, in the lower extremities. Sensory status was noted to be normal. The diagnoses included residuals of low back injury with chronic low back strain. In July 1992, the veteran underwent a VA magnetic resonance imaging and the impression was mild disc protrusion at L5 - S1 without neurological significance and otherwise within normal limits. In October 1992, the appellant underwent electromyogram and nerve conduction studies and the impression was increased responses in the right medial gastrocnemius which suggested either resolved S1 and/or S2 radiculopathy, or resolved peripheral neuropathy of the tibial nerve. It was noted that local trauma that had been resolved could not be ruled out as the etiology of the responses. It was noted there was no other nerve conduction velocity or electromyogram evidence of radiculopathy, myopathy or peripheral neuropathy in the right lower extremity or the right L2 - S2. A November 1993 private chiropractic treatment record for the appellant indicated he had acute low back pain with radicular right leg pain. He reported a history of episodic exacerbations every two months requiring him to stay off his feet for 2 to 4 days until the pain subsided. He described his back pain as constant and sharp in nature and indicated he had been treated with medication and physical therapy with no lasting improvement. Examination revealed positive orthopedic tests, including straight leg raising to 20 degrees on the right and 30 degrees on the left; patellar deep tendon reflexes were one plus on the right and two plus on the left. X-ray impressions included slight decrease in the L5 - S1 disc space, mild facet asymmetry of the L5 - S1 articulation, no evidence of fracture or gross pathology and well-maintained vertebral body height. The diagnoses included lumbar intervertebral disc syndrome, lumbar disc degeneration and lumbar sciatica. The appellant testified before a member of the Board at the regional office in November 1993 that he had worsening back pain and bimonthly episodes where he had to be off his feet for 2 to 4 days with increased pain and that he was wearing a back brace. The appellant's service-connected low back disorder is currently rated as 10 percent disabling under Diagnostic Code 5293, a rating which contemplates mild intervertebral disc syndrome. Diagnostic Code 5293 calls for a 20 percent evaluation for moderate intervertebral disc syndrome with recurring attacks. The recent VA examination showed no neurological deficits despite the appellant's complaints of radicular pain. Although the chiropractor reported hypoesthesia in the right L4 distribution, when examined by the VA physician in April 1992, sensation was normal and in October 1992 only mildly decreased sensation was reported. There has been no loss of ankle reflexes shown and no muscular atrophy. The July 1992 VA magnetic resonance imaging showed the appellant had a mild disc protrusion at L5 - S1 without neurological significance and the electromyogram and nerve conduction velocity studies in October 1992 indicated the appellant had a resolved S1 and/or S2 radiculopathy or resolved peripheral neuropathy without other evidence of radiculopathy, myopathy, or peripheral neuropathy in the right lower extremity or right paraspinal L2 through S2. Those results are consistent with no more than mild intervertebral disc syndrome. Although the appellant does have subjective complaints of constant pain that have not been relieved by medication or therapy, these complaints are not supported by the findings recorded on examinations or by the diagnostic studies which show no current neurological abnormality. The evidence does not support a finding of more than mild intervertebral disc syndrome. There is moderate impairment of lateroflexion to 25 degrees. His rotation is to 30 degrees on the right and left which shows slight impairment. The limitation of flexion to 75 degrees, the Board finds to be slight impairment of limitation of motion of the lumbar spine. Overall, the Board finds slight limitation of lumbar motion, and, consequently, even considering Diagnostic Code 5292, no more than a 10 percent rating is warranted. A 20 percent rating under Code 5292 requires moderate limitation of lumbar motion which is not demonstrated in this case. As the appellant does not have muscle spasm on extreme forward bending and loss of lateral spine motion, a higher rating is not warranted under Diagnostic Code 5295. Under that code, a 10 percent rating is provided for lumbosacral strain with characteristic pain on motion, such as is shown here. The Board has considered the applicable rating codes, but finds that the disability in question does not more nearly approximate the criteria for a higher evaluation under the rating criteria for any of the various codes considered. 38 C.F.R. § 4.7. An extraschedular evaluation is not warranted since the evidence does not show the service-connected degenerative disc disease with low back strain presents such an unusual or exceptional disability picture with marked interference with employment or frequent periods of hospitalization, as to render the regular schedular standards impractical. 38 C.F.R. § 3.321(b)(1). There is no indication the appellant has been frequently hospitalized for his service-connected degenerative disc disease with low back strain and he does not have objective evidence of symptoms that would markedly interfere with employment. He reports some incapacitating exacerbations but these occur only every two months and cannot be considered to result in marked interference with employment. The preponderance of the evidence is against allowance of this claim, and the benefit of the doubt doctrine is, therefore, not applicable. 38 U.S.C.A. § 5107(b). II. A Rating in Excess of 10 Percent for Right Knee Strain We have reviewed the entire history of the appellant's right knee strain, particularly as it affects the ordinary conditions of daily life, including employment, as required by the provisions of 38 C.F.R. §§ 4.1, 4.2 and 4.10 and other applicable regulations. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The service medical records reveal that in November 1988 the appellant complained of right knee pain after twisting his leg while running. The assessment was interior knee damage which after another examination that revealed no laxity or abnormality other than tenderness was changed to right knee strain. Several days later in December a treatment note indicated that his right knee strain was resolving. A record of medical care dated in February 1992 indicated that the appellant had trouble with his right knee locking or popping in and out with severe pain. A March 1982 separation examination indicated the appellant's lower extremities were normal. However, the report of medical history indicates that he had or had had a "trick" or locked knee. In April 1992 a rating action by the regional office granted the appellant service connection for right knee strain and assigned a 10 percent evaluation based upon the November 1988 complaints of intermittent pain and locking of his right knee in the service medical records. The appellant underwent a VA examination in April 1992 that indicated he had full range of motion in the knees, could walk on his heels and toes and could squat. There was no diagnosis involving the right knee. The appellant testified before a member of the Board in November 1993 that his right knee locked at times and that also occasionally when he would turn, his knee would give out and he would fall. He also testified that he had almost constant knee pain. The appellant's service-connected right knee strain is currently rated by the regional office as 10 percent disabling under Diagnostic Code 5257, which contemplates slight impairment of the knee with recurrent subluxation or lateral instability. A 20 percent evaluation under Diagnostic Code 5257 would require recurrent subluxation or lateral instability of moderate extent or other moderate impairment of the knee. The most recent medical evidence regarding his right knee indicated that he made no complaint involving the knee and that he had full range of motion without any indicated instability involving that knee. The Board has considered the appellant's testimony that he has locking and giving way of the knee occasionally and that he is in almost constant pain from the knee. However, the Board concludes that without any objective evidence of any current loss of function of the knee, keeping in mind his complaints of its occasional giving way, a higher evaluation is not warranted on the basis of impairment of the knee, recurrent subluxation or lateral instability under Diagnostic Code 5257. Because the appellant does not have evidence of any limitation of knee motion, Diagnostic Codes 5256, 5260 and 5261 are not for application in this case. The Board concludes that the current rating of 10 percent for slight knee impairment contemplates the locking, occasional giving way and pain described by the appellant regarding his right knee. The disability in question does not more nearly approximate the criteria for the next higher evaluation for the aforestated reasons. 38 C.F.R. § 4.7. An extraschedular evaluation is not warranted since the evidence does not show that the service-connected right knee strain presents such an unusual or exceptional disability picture with marked interference with employment or frequent periods of hospitalization, as to render the regular schedular standards impractical. 38 C.F.R. § 3.321(b)(1). There is no indication the appellant has been frequently hospitalized for his service- connected right knee strain and he does not have objective evidence of symptoms that would markedly interfere with employment for the aforestated reasons. Since the preponderance of the evidence is against allowance of this claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER An increased rating for degenerative disc disease with lumbosacral strain is denied. An increased rating for right knee strain is denied. (CONTINUED ON NEXT PAGE) HOLLY E. MOEHLMANN 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.