BVA9505860 DOCKET NO. 91-21 290 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an increased rating for lumbosacral strain, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. D. Jackson, Associate Counsel INTRODUCTION The veteran had active military from January 1943 to November 1945 and from January 1946 to December 1948. This appeal arises from an April 1990 rating decision that denied entitlement to an increased rating for lumbosacral strain. A personal hearing was held at the RO before a hearing officer in October 1990. In February 1993, this case was remanded for further development. Subsequently, the RO confirmed and continued the denial in a rating decision dated in April 1993. In May 1994, this case was remanded for further development. Subsequently, the RO confirmed and continued the denial in a rating decision dated in September 1994. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he should be granted an increased evaluation for lumbosacral strain. Essentially, he maintains that he has continuous pain and discomfort as a result of his lumbosacral strain. He reports that such activity as prolonged walking, standing or sitting as well as bending and lifting exacerbates the pain. As such, it is maintained that a 20 percent rating does not accurately reflect the true nature and extent of this disability. 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 files. 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 for an increased evaluation for lumbosacral strain. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. "Severe" impairment associated with lumbosacral strain is not shown. CONCLUSION OF LAW The schedular criteria for an evaluation in excess of 20 percent for lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 5295 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the appellant has submitted a well-grounded claim and, if so, whether the VA has assisted the appellant in properly developing his claim. A "well-grounded" claim is one that is not implausible. The appellant's claim appears to be reasonably based. A review of the evidence further indicates that all relevant facts have been properly developed and that there is sufficient evidence upon which to fairly resolve the issue raised by the instant case. Therefore, another remand in order to permit additional development of the record is unnecessary. A historical review of the veteran's service medical records indicates that he was treated in September 1945 for back pain that was described as mild to moderate lumbosacral strain. He was treated conservatively for pain and soreness; however, X-rays did not confirm any evidence of a lumbosacral abnormality. The November 1948 discharge examination report indicates that no lower back musculoskeletal abnormality was demonstrated at that time. Lumbosacral X-rays in 1952 and 1953 failed to show any demonstrable bone or joint abnormalities of the lumbar vertebrae. There was saucerization of the posterior portion of the vertebral bodies of the lumbar spine that was considered the possible remnants of the notochord. Physical examination was essentially negative for any musculoskeletal pathology. A rating decision dated in March 1953 granted service connection for lumbosacral strain. A 10 percent disability evaluation was assigned. A private examiner in October 1956 reported diagnoses of chronic lumbosacral strain and sclerosis, cause undetermined. There was reportedly sclerosis and wasting of the muscle of the right back as well as muscle spasm and limitation of motion. A VA examination in March 1957 revealed an abnormality of the thoracic spine, a lesion on the lumbar spine and Schmorl's nodes of the lower lumbar vertebrae. A May 1957 report of a VA special orthopedic examination noted the continuing back complaints. In summarizing, the examiner also commented that there were no marked objective findings found on examination and suggested that there was a strong functional overlay. A December 1957 VA examination revealed no lumbar spine abnormality. VA examinations conducted between 1958 and 1961 continued to note the veteran's problems with his back; however no orthopedic pathology was found. An August 1958 X-ray report revealed minimal hypertrophic spurring anteriorly and laterally. VA examinations in August 1961 and June 1963 reflected no residual pathology and diagnosed a history of lumbosacral strain A VA hospitalization discharge report dated in May 1970 shows that the veteran presented complaints of back pain that radiated to the left lower extremity. It was noted that he reported being injured at work in 1968. The physical examination report noted restricted range of motion of the low back and decreased sensation in the entire left leg. A myelogram showed questionable defect at the L5-S1 on the left side. An electromyogram was negative. He was treated with physical therapy and put in a flexion jacket that reportedly seemed to ease the sciatica. He underwent an electromyographic study in June 1974. It was noted that there had been no essential change since a 1970 study that showed generalized decreased voluntary motor unit production influenced by pain. A June 1976 VA examination showed tenderness, muscle spasms, restricted motion, and some flattening of the lumbar curve. A rating decision dated in August 1976 increased the disability rating to 20 percent. VA clinical records developed between 1977 and 1989 relate that he attended physical therapy and wore a back brace. Orthopedic examinations noted occasional muscle spasm, pain and limitation of motion. An April 1987 electromyographic study showed there was no degeneration, nerve or root patterns in the muscles tested. Nerve conduction velocities and latencies were in the acceptable range. There was slight left median nerve velocity conduction and finger sensory latency. He underwent a VA neurological examination in November 1989. In reporting the diagnostic assessment it was noted that there was no evidence of radiculopathy or myelopathy. It was further noted that the severe lack of strength on individual muscle testing was incompatible with his ability to walk or move about. The examiner added that although there may have been injury to the nerve roots during the positive myleograph in 1970, there was no objective evidence of radicular damage. X-ray of the lumbar spine was within normal limits. Disability evaluations are based on the comparison of clinical findings with applicable schedular criteria. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The current 20 percent evaluation requires muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. A 40 percent evaluation requires severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space. A 40 percent evaluation is also warranted if only some of these manifestations are present, if there is also abnormal mobility on forced motion. 38 C.F.R. Part 4, Diagnostic Code 5295 (1994). In this regard, the veteran reported at a personal hearing dated in October 1990 that his symptoms associated with his lumbosacral strain had increased. He described his pain as burning. He has to sleep with a pillow as support. The veteran stated that he is required to take aspirin and use analgesic balm to relieve symptoms. He related that after a 1970 myelogram was performed, he noted an increase in low back pain. Pursuant to a Board remand the veteran underwent a VA orthopedic examination in April 1993. At the examination he reported low back pain that was more severe on motion. He related that the pain did not radiate. The physical examination disclosed that the veteran was wearing a Taylor back brace for back support. The veteran was reluctant to walk on his toes and heels and had a variable right limp. He stood with a "splinted back." The examiner described it as symmetrical. The veteran was able to flex to 30 degrees and when encouraged, he flexed to 40 degrees. There was no extension. He was able to bend 20 to 30 degrees in a segmental fashion, mostly above the lumbosacral junction. Rotation was 15 to 20 degrees. Additionally, he showed a chest expansion of 1 inch, but with encouragement it increased to 1 3/4 inch. The lower extremity reflexes were symmetrically depressed. There were no apparent sensory or motor deficiency, but all tests were resisted. The Ober's test on the right was said to hurt the back. The Ely's test from both sides was "referred to the front of the thighs and knees." The examiner was unable to localize tenderness in the spine. The veteran stated that it hurt, but described no radiation and no sciatic notch tenderness was apparent. The examiner's impression was history of old back strain and complicating ancillary problems. He further commented that, "the examination was one of a patient presenting primarily subjective features and showing some voluntary resistance to examination." The radiological studies revealed that the height and alignment of the vertebral bodies were normal. The intervertebral discs appeared to be well maintained. There were no fractures or dislocation. There were also no significant degenerative changes. The diagnostic impression was unremarkable lumbosacral spine examination. Pursuant to a second Board remand, the veteran underwent neurological and orthopedic examinations. In June 1994, he underwent an orthopedic examination. The veteran presented complaints of chronic low back pain of varying intensity. He related that he avoided prolonged sitting, standing, or walking as well as lifting. Any of these activities exacerbated the pain. He described radicular pain to the lower extremities. There was also reportedly tingling and numbness of the lower extremities. He wore a back brace. The orthopedic examination revealed that he moved somewhat slowly, but had a satisfactory gait pattern. He was able to stand erect. There appeared to be mild bilateral paravertebral muscle spasm that was greater on the left. There was tenderness to palpation, primarily in the right lower lumbar region. There was 75 degrees flexion and 15 degrees of extension. He demonstrated a poor attempt at heel and toe walking secondary to complaints of soreness in both legs. Straight leg raising in the supine position was negative for reproduction of radicular pain. He did complain of pain in the right groin region on raising the right leg. The diagnostic impression was chronic lumbar syndrome; history of remote back injury. X-rays of the lumbar spine revealed that the alignment was satisfactory. In giving his diagnostic impression the examiner noted there was "only minimal degenerative changes seen at the lower part of the lumbar spine." In August 1994, the veteran underwent a neurological examination. He related that he had low back pain that was generally localized, but at times moved upwards. He reported that the pain did not radiate into the legs. The intensity of the pain abated when he wore a back brace. He further stated that he had no persistent paresthesia, sensory loss, weakness, or sphincter complaints. He wore a back brace and walked with a cane. The physical examination revealed that he was able to stand on his heel and toes with minimal encouragement. Also with encouragement, his strength was measured as 5/5 bilaterally. On exertion of the lower extremities, especially the right, he complained of foot and knee pain. The examiner commented that he felt that this was not neurogenic pain, but arthritic pain. The straight leg raising tests were 90 degree bilaterally. The sensory system was intact and there was no sensory loss. The deep tendon reflexes were 1+ in the knees and equal in the ankles. There were no pathologic reflexes or clonus. His gait was considered normal. In giving his diagnostic impression the examiner commented that the veteran had back and multiple joint pain, but no neurologic deficits. The Board points out that in evaluating a disability associated with a lower back disorder, it is necessary to consider, in addition to present symptomatology, or its effect, the frequency, severity and duration of previous periods of discomfort. In the instant case, the veteran's history has been marked by continuous subjective complaints; however the examinations have for the most part been unremarkable as far as any significant findings or residual effects from the low back disorder. In fact, his current disability picture indicates that his symptoms are certainly not shown to result in "severe" impairment, such as would warrant assignment of a 40 percent rating under Diagnostic Code 5295. The Board is aware that his symptoms include pain and limitation of motion; however, these symptoms are contemplated in the assignment of a 20 percent disability evaluation. There was no evidence of muscle spasm, muscle atrophy or other findings indicative of severe functional loss. Furthermore, the neurological examination was unremarkable. The veteran displayed no sensory or motor deficits. Currently, because a 40 percent evaluation requires clinical finding of severe lumbosacral strain; with listing of the whole spine to the opposite side, positive Goldthwait's sign marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above, with abnormal motility on forced motion, it is found that the currently assigned 20 percent evaluation is appropriate in view of the current findings and the entire history that is presented. Although a 40 percent rating is assignable under Code 5292 when limitation of motion of the lumbar spine is "severe", when considering that the consensus as to the average range of motion of the lumbar spine is 95 degrees flexion, 35 degrees extension, 40 degrees flexion and 35 degrees rotation (See VA Physician's Guide for Disability Evaluation Examinations (1984), it is clearly apparent that more than "moderate" overall limitation of motion has not been shown, nor is a rating in excess of 20 percent appropriately assignable under any other applicable code. In reaching this decision, the Board carefully considered an extraschedular evaluation pursuant to 38 C.F.R. § 3.321; however, the claims folders do not reveal an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards. Marked interference with employment or a repeated pattern of hospitalization has not been shown. ORDER An increased evaluation for lumbosacral strain is denied. JEFF MARTIN 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.