Citation Nr: 0007223 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 93-28 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES Entitlement to a rating in excess of 20 percent for a lower back disorder. Entitlement to a rating in excess of 10 percent for a left ankle disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and her husband ATTORNEY FOR THE BOARD Todd R. Vollmers, Associate Counsel INTRODUCTION The veteran had active service from August 1985 to August 1991. This case came before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, in August 1992 which granted service connection for a lower back disorder and a left ankle disorder, and assigned a noncompensable evaluation for each of these disorders. This case was previously Remanded by the Board in January 1996 and March 1997 for further development. Thereafter, the evaluation for the veteran's service connected lower back disorder was subsequently increased to 20 percent, and the evaluation for her left ankle disorder was increased to 10 percent. Both evaluations were made effective in August 1991, the effective dates of the grants of service connection. The case has now been returned to the Board for completion of appellate consideration. FINDINGS OF FACT 1. The veteran's lower back disorder is manifested by complaints of pain and limitation of motion which functionally are consistent with not more than moderate disability. 2. The veteran's left ankle disorder is manifested by complaints of pain and limitation of motion which are not more than moderately disabling functionally. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a lower back disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.59, and Part 4 Code 5295, 5292. 2. The criteria for a rating in excess of 10 percent for a left ankle disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.59, and Part 4 Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The report of the veteran's separation examination dated in June 1991 noted that the veteran had scars on her back and left ankle, and that she had injured her back in October 1990. A VA examination in May 1992 noted that the veteran had a well-healed nontender scar over the midline lumbar spine. The veteran had 90 degrees of forward flexion and lacked 4 to 6 inches from touching her toes. Hyperextension was to 35 degrees, and side flexion was 40 degrees bilaterally. The veteran could rotate 35 degrees bilaterally. X-rays did not show evidence of bony pathology, and the diagnosis was lumbosacral strain. A VA examination of the veteran's left ankle in May 1992 noted that the ankle appeared to be normal. The veteran had full range of motion with 20 degrees of dorsiflexion, 40 degrees of plantar flexion, and normal subtalar motion. There was no tenderness about the ankle. The diagnosis was history of left ankle sprain, resolved. A hearing at the RO was held in May 1993. The veteran testified that she had a lot of pain in her back that affected her ability to do normal activities. The veteran also testified that her back pain caused problems with her ability to work, due to her inability to sit for long periods of time. According to the veteran, the pain in her back was continuing to get worse over time. Regarding the veteran's left ankle, she testified that she had a lot of swelling and pain which affected her ability to perform certain activities. The veteran stated that her left ankle problems included pain due to weather changes and walking on uneven surfaces. The veteran's husband also testified that the veteran's lower back and left ankle problems were an impediment to the veteran's functional ability. The veteran complained of back and left ankle pain during a VA physical examination in April 1995. A VA examination in July 1996 did not find any postural abnormalities, fixed deformities, or atrophy or spasm in the veteran's back. Forward flexion was 75 degrees and backward extension 15 degrees. Left and right lateral flexion were each 20 degrees, and rotation to the left and right were 30 degrees. The veteran was noted to have subjective pain with all of these movements, and x-rays were normal. No neurological deficits were found. The diagnosis was lumbosacral strain and lacerative injury in the lower back. A VA examination of the veteran's left ankle in July 1996 did not find any swelling, deformity, subluxation, instability, or crepitus. Range of motion was noted to be full without any significant pain. X-rays of the left ankle were normal. Diagnosis was sprained ankle and lacerated injury of the ankle by history, assessed as normal. The veteran's back was noted to be without postural abnormalities, fixed deformities, or atrophy or spasm during a VA examination in July 1997. Forward flexion was 45 degrees and backward extension 10 degrees. Left and right lateral flexion were both 20 degrees. Rotation to the left was 30 degrees, and rotation to the right 35 degrees. There was objective evidence of pain on all of these motions. No evidence of neurological involvement was found. The examiner also stated that there was no evidence of incoordination, fatigability, or weakness. The veteran was noted to be employed and able to do her work despite some back discomfort. X-rays of the back were normal. The diagnosis was low back pain by history. The examiner commented that no statement could be made concerning the DeLuca memorandum because it would be pure speculation on the part of the examiner. A report of a VA examination of the veteran's left ankle dated in July 1997 noted that there was no swelling, deformity, or crepitus. Dorsiflexion of the left ankle was 10 degrees, and plantar flexion was 30 degrees. The veteran claimed that range of motion testing caused pain. The examiner stated that the veteran was employed and had some swelling and dull pain occasionally after work. There was no excess fatigability, incoordination, increased weakness, or ankylosis noted. X-rays did not show any significant abnormalities. Diagnosis was left ankle injury by history. The examiner again commented that no statement could be made concerning the DeLuca memorandum because it would be pure speculation on the part of the examiner. Analysis Initially, the Board notes that the veteran's claims for higher ratings are plausible and thus are considered well grounded. Moreover, it appears that all relevant facts have been properly developed and that no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a). In evaluating the severity of a particular disability, it is essential to consider its history. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2. Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). When there is a question as to which of two ratings shall be applied, 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. Assertions of functional disability due to pain must be evaluated according to 38 C.F.R. §§ 4.10, 4.40. 38 C.F.R. § 4.10 provides that in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or system, based on an examination which includes a description of the disability upon the person's ordinary activity. Additionally, 38 C.F.R. § 4.40 requires consideration of functional disability due to pain and weakness. Painful motion is an important fact of disability and it is the intent of the Rating Schedule to recognize painful motion with joint pathology as productive of disability. 38 C.F.R. § 4.59 (1999). In the case of DeLuca v. Brown, 8 Vet. App. 202 (1995), The United States Court of Appeals for Veterans Claims (Court) held that it was essential that the rating examination portray the functional loss resulting from service connected disability. It was also held that ratings based on limitation of motion do not subsume § 4.40 or § 4.45 and that the provisions of 38 C.F.R. § 4.14 prohibiting pyramiding do not bar consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Other factors to be considered included fatigability, incoordination and weakness. In addition, in Fenderson v. West, 12 Vet. App. 119 (1999), the Court recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating for a service-connected disability. The Court found two important reasons for this distinction-consideration of "staged" ratings and the adequacy of the statement of the case. The Board further notes that this case comes on appeal from the initial rating decision that granted service connection for a lower back disorder and a left ankle disorder, and that consideration must be given to staged ratings under Fenderson. Entitlement to a rating in excess of 20 percent for a lower back disorder Diagnostic Code 5295 states that a 10 percent evaluation is warranted for lumbosacral strain where there is characteristic pain on motion. Where there is muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position, a 20 percent rating is appropriate. 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, and 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. Code 5295. Under Diagnostic Code 5292 for limitation of motion of the lumbar spine, slight limitation of motion warrants a 10 percent evaluation. A 20 percent evaluation requires moderate limitation of motion. Severe limitation of motion is required for a 40 percent evaluation. Code 5292. The evidence of record shows that the veteran had 90 degrees of forward flexion during a VA examination in May 1992. Hyperextension was 35 degrees, side flexion was 40 degrees bilaterally, and the veteran could rotate 35 degrees bilaterally. Similar findings were noted during a VA examination in July 1996, with the veteran having 75 degrees of forward flexion and 15 degrees of backward extension. On the July 1996 VA examination report, left and right lateral flexion were each noted as being 20 degrees, and rotation to the left and right were 30 degrees. Subjective pain on movement was noted during the July 1996 VA examination. The May 1992 and July 1996 VA examinations do not show that the veteran has listing of the whole spine to the opposite side, a positive Goldthwaite's sign, or narrowing or irregularity of the joint space. X-rays of the lumbar spine taken in May 1992 and July 1996 did not find any osteoarthritic changes in conjunction with a loss of lateral motion, and limitation of forward bending in a standing position was not marked. There was also no sign of abnormal mobility on forced motion with any of the above. Therefore, the criteria for a higher evaluation under Diagnostic Code 5295 have not been met. The evidence contained in the May 1992 and July 1996 VA examinations also does not meet the criteria for a higher evaluation under Diagnostic Code 5292. The limitation of motion noted during these examinations cannot be characterized as greater than moderate overall, and therefore does not meet the requirement of severe limitation of motion as set out under the next higher rating under Diagnostic Code 5292. The veteran's most recent VA examination in July 1997 also did not find any of the criteria noted above for a higher evaluation under Diagnostic Code 5295. A higher evaluation under Diagnostic Code 5295 is therefore not warranted based on the July 1997 VA examination. Limitation of motion on the July 1997 VA examination report was noted to be 45 degrees of forward flexion, and 10 degrees of backward extension. Left and right lateral flexion were both 20 degrees, with rotation to the left described as 30 degrees and rotation to the right 35 degrees. These findings indicate that the veteran's limitation of motion in the lumbar spine is still no more than moderate in nature. Because the limitation of motion noted during the most recent VA examination in July 1997 cannot be characterized as more than moderate, a higher evaluation under Diagnostic Code 5292 is not in order. The Board has therefore considered staged ratings in this case, but finds that the evidence of record does not show that the veteran met the requirements for a higher evaluation for her service connected lower back disorder at any time during the appeal period. The Board notes that the July 1996 and July 1997 VA examination reports both stated that there was evidence of pain on motion during range of motion testing. In addition, the veteran and her husband testified at a hearing at the RO in May 1993 that her lower back caused significant functional impairment. The complaints of pain do not appear to ever have been objectively confirmed as evidenced by the diagnoses of "history of" and references to subjective complaints of pain. Moreover, the examiner was unable to offer any opinion concerning flare-ups, weakness, etc. pointing out that this would be pure speculation on his part. Under such circumstances, and with consideration to DeLuca, it is clear that the 20 percent rating assigned over the period of time in question is contemplated by the evaluation currently in effect. 38 C.F.R. § 4.40. Additionally, the Board does not find any unusual or exceptional circumstances present regarding this disability, such as marked interference with employment or frequent periods of hospitalization, that would render impractical the application of the regular schedular standards and warrant an extraschedular rating. 38 C.F.R. § 3.321(b). In this regard, the examiner stated in the July 1997 VA examination report that the veteran was employed and able to work despite some back discomfort. Accordingly, the preponderance of the evidence is against the veteran's claim for a higher evaluation for a lower back disorder. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Board finds that the preponderance of the evidence is against a higher rating for the veteran's lower back disability. Entitlement to a rating in excess of 10 percent for a left ankle disorder Under Diagnostic Code 5271, marked limitation of motion of the ankle warrants a 20 percent rating. For moderate limitation of motion, a 10 percent evaluation is appropriate. Code 5271. Plate II of 38 C.F.R. § 4.71 shows that normal range of dorsiflexion of the ankle is from 0-20 degrees. Normal plantar flexion of the ankle is from 0-45 degrees. The medical evidence of record shows that dorsiflexion of the left ankle was noted to be 20 degrees on the May 1992 VA examination report, and plantar flexion was 40 degrees. A VA examination in July 1996 described range of motion in the left ankle to be full and without any significant pain. The most current VA examination of the veteran's left ankle, in July 1997, noted dorsiflexion of 10 degrees and plantar flexion of 30 degrees. In the May 1992, July 1996, and July 1997 VA examination reports, no examiner has ever reported clinical findings consistent with more than moderate disability of the left ankle. There is no medical evidence that the veteran's left ankle significantly affects her ability to walk, and no examiner has noted any weakness, instability, or excess fatigability of the left ankle. The Board notes that the veteran and her husband testified at a hearing at the RO in May 1993 that her left ankle caused significant functional impairment. However, more recent medical evidence does not show more than a moderate amount of functional impairment due to the veteran's left ankle. The July 1997 VA examination report noted the veteran's complaint of pain on range of motion testing and occasional swelling after work, which was accompanied by a dull pain. Nevertheless, the examiner reported that the veteran was able to work. Under such circumstances, any motion restriction would be not more than moderate even with pain factored in as required by DeLuca. The Board finds that the degree of pain experienced by the veteran due to her left ankle disorder, as shown by the evidence, is contemplated by the evaluation currently in effect. 38 C.F.R. § 4.40. Additionally, the Board does not find any unusual or exceptional circumstances present regarding this disability, such as marked interference with employment or frequent periods of hospitalization, that would render impractical the application of the regular schedular standards and warrant an extraschedular rating. 38 C.F.R. § 3.321(b). In the Board's view, the medical evidence is commensurate with not more than moderate overall impairment of the left ankle, warranting not more than a 10 percent rating under the provisions of Diagnostic Code 5271. The Board has considered staged ratings in this case, but finds that the evidence of record does not show that the veteran met the requirements for a higher evaluation for her service connected lower back disorder at any time during the appeal period. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Board finds that the preponderance of the evidence is against a higher rating for the veteran's left ankle disability. ORDER Entitlement to a rating in excess of 20 percent for a lower back disorder is denied. Entitlement to a rating in excess of 10 percent for a left ankle disorder is denied. C. W. Symanski Member, Board of Veterans' Appeals