Citation Nr: 0002260 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 98-01 696A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for a low back disability, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Salari, Associate Counsel INTRODUCTION The appellant had active duty service from October 1992 to May 1997. This appeal comes before the Board of Veterans' Appeals (Board) from an August 1997 rating action from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which granted service connection and a 10 percent rating for the appellant's low back disability. The claim was subsequently transferred to the St. Petersburg, Florida, RO. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of this claim has been gathered. 2. The appellant's low back disability is primarily manifested by slight limitation of motion and increased pain on use. CONCLUSION OF LAW The criteria for a 20 percent rating for a low back disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, §§ 4.10, 4.40, 4.45 Diagnostic Codes 5292, 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The pertinent medical evidence of record includes a report of a VA examination, dated in May 1997, which indicates that the appellant reported that since 1992, he has had a chronic low back pain with frequent exacerbations. He continues to suffer from chronic low-grade background back pain after prolonged sitting, standing, or long walks, with exacerbations approximately every three to six months requiring bed rest and medication. He reported no radiation to the buttocks or lower legs. Physical examination showed that the appellant had a normal gait and station. He was able to walk on his toes and heels and do heel-to-toe tandem walk without difficulty. Examination of the back revealed no muscular spasm. There was no minor tenderness to percussion over the lower lumbar area. Range of motion testing showed flexion to 90 degrees, extension to 20 degrees, lateral bending to 30 degrees on the left and right, and rotation to the left and right at 30 degrees. All range of motion tests produced pain and tightness in the lower lumbar area. Deep tendon reflexes at L4 and S1 were 2+ bilaterally. Straight leg raises were negative bilaterally. Motor was 5/5 flexion and extension in the proximal and distal motor groups of the lower extremities. There were no sensory abnormalities. The impression was chronic low back pain, muscular. Subsequent medical evidence of record includes an x-ray report, dated in October 1997, which indicates that there were five lumbar vertebral bodies with their anterior heights and disc spaces well-maintained. Sacroiliac joints were unremarkable. A physical therapy treatment noted, dated in November 1997, indicates that the appellant reported a 5 year history of intermittent low back pain, with an exacerbation in September 1997. At rest, the pain was a constant dull pain at level 6- 7 out of 10; with function, there was a sharp pain at a level of 9 out of 10. Weight bearing on the left pelvis increased his pain. He denied numbness or tingling. He described peripheral pain from the low back to the left gluteal fold. He reported using Percocet to help him sleep. He also reported using ice and heat at home alternately, for 15-20 minutes each time. He indicated that he worked out at a gym 6 days per week. Objective findings showed that the appellant's pelvic crests appeared normal on standing. Active range of motion testing showed all motions of the trunk were guarded and painful. The lower extremities were within normal limits, except bilateral hip flexion was limited at approximately 90 degrees due to low back pain. Isometric testing of the lower extremities were within normal limits except the left hip flexion and "abd which are strong/p[ai]n[]ful." Strength in the lower extremities was guarded at 4- 4+/5. Straight leg raising was painful at 30 degrees on the left, and at 40 degrees on the right. "Scour [and] FABERS [were] too guarded to assess." Deep tendon reflexes were within normal limits, "except L L4 = 3+." He was provided with physical therapy treatment at that time. Subsequent medical records show that he received physical therapy on numerous subsequent occasions (between November 1997 and January 1998), with his pain level decreasing to a level 4 out of 10. Following physical therapy treatment, a TENS unit was issued for home use and he was to follow a home exercise program. A treatment note dated in September 1998 indicates that he continued to have chronic low back pain and that he was taking Tylenol and Motrin during the day to get through work. He was also given Percocet for pain. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes (DC) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In evaluating service connected disabilities, the Board must assess functional impairment and determine the extent to which a service connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Ratings based on limitation of motion do not subsume the various rating factors in 38 C.F.R. §§ 4.40 and 4.45 of pain, weakness, and fatigability. These regulations, and the prohibition against pyramiding in 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including flare-ups. DeLuca v. Brown, 8 Vet.App. 202, 206-08 (1995). In other words, when rated for limitation of motion, a higher rating may be assigned if there is additional limitation of motion from pain or limited motion on repeated use of the joint. The severity of the appellant's low back disability is ascertained by application of the criteria set forth under DC 5292 and 5295. Under DC 5292, a 10 percent rating is granted for slight limitation of motion of the lumbar spine; a 20 percent rating is granted for moderate limitation of motion; a 40 percent rating is granted for severe limitation of motion. Under DC 5295, a 10 percent rating is granted for lumbosacral strain with characteristic pain on motion; a 20 percent rating is granted when there is muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position; a 40 percent rating is granted when there is a severe lumbosacral strain, with listing of whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo- arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. The Board observes here that the U.S. Court of Appeals for Veterans Claims (Court) has noted that, in a claim of disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). In the case at hand, the Board finds that under the pertinent regulations and rating criteria, a 20 percent rating is warranted from the date of the initial award of service connection. The evidence of record indicates that the appellant's range of motion testing during a VA examination in May 1997, and during a physical therapy evaluation in November 1997 evaluation, showed slight limitation of motion. Thus, a 10 percent rating, but no higher, is permitted under DC 5292. It is noted, however, that the range of motion testing produced pain with most movements. It is also noted that the appellant has reported complaints of increased pain with function. In addition, the record indicates that he has required the use of a TENS unit as well as various pain medication to help him get through his work day. Accordingly, pursuant to the criteria pertaining to functional loss due to pain, as reported above, the Board finds that an additional 10 percent rating is warranted. The Board does not find that a higher rating would be permitted under the criteria set forth under DC 5295. While the medical evidence does establish loss of motion, the record indicates no muscle spasms. Thus, the criteria for a 20 percent rating are not met under DC 5295. Accordingly, the Board concludes that a 20 percent rating can be awarded under the criteria set forth under DC 5292 and DeLuca v. Brown. ORDER Entitlement to a 20 percent rating for a low back disability is granted, subject to the criteria which govern the payment of monetary awards. NANCY I. PHILLIPS Member, Board of Veterans' Appeals