Citation Nr: 0005067 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 95-35 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased rating for mechanical low back pain syndrome with degenerative joint disease, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Jeffers, Associate Counsel INTRODUCTION The veteran served on active duty from April 1957 to April 1960, and from December 1963 to October 1986. This case initially came to the Board of Veterans' Appeals (Board) on appeal from a February 1995 rating decision of the Montgomery, Alabama, Department of Veterans Affairs (VA), Regional Office (RO), which, in pertinent part, granted an increased rating to 20 percent for the veteran's service- connected low back disability. The veteran filed a timely notice of disagreement, and was issued a statement of the case in June 1995. His substantive appeal was received in July 1995. The denial was then confirmed and continued by rating action issued in March 1997. The veteran was issued a supplemental statement of the case in May 1997. The Board remanded this case to the RO for additional evidentiary development in February 1998. Following compliance, the RO granted an increased rating to 40 percent for the veteran's service-connected low back disorder in a March 1999 rating decision. Parenthetically, it is noted that during the pendency of this remand the veteran appointed Disabled American Veteran from January 7, 1999. Additionally, the Board notes that a claim for a total rating based on individual unemployability due to service-connected disabilities must be inferred from the evidence of record. See Dinsay v. Brown, 9 Vet. App. 79, 85 (1996). Since this issue has not been properly developed for appellate review by the Board, and is not inextricably intertwined with the issues on appeal, it is hereby referred to the RO for appropriate action. See Kellar v. Brown, 6 Vet. App. 157 (1994). FINDING OF FACT The veteran's mechanical low back pain syndrome, as shown by recent VA examination, is primarily manifested by moderate limitation of motion of the lumbar spine with loss of function due to pain productive of muscle atrophy, muscle spasms and pronounced degenerative changes at L5-S1 and L4-5. CONCLUSION OF LAW The schedular criteria for a disability rating in excess of 40 percent for mechanical low back pain syndrome with degenerative joint disease are not met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 3.321, Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, Diagnostic Codes 5292, 5293, 5295 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran's claim of entitlement to a disability rating in excess of 40 percent for mechanical low back pain syndrome with degenerative joint disease is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. Generally, a claim for an increased evaluation is considered to be well grounded. A claim that a condition has become more severe is well grounded where the condition was previously service- connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). 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). VA also 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 (1999), 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 (1999) 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 (1999) states that, in cases of functional impairment, evaluations are to be 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, 4.45 (1999); see also DeLuca v. Brown, 8 Vet. App. 202, at 204-206, 208 (1995). These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions 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. Where entitlement to compensation has been already established and an increase in disability is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Private treatment records developed between 1990 and 1998 show treatment on occasion for the veteran's low back disorder. Records obtained from the Social Security Administration included an adverse July 1997 decision, wherein the veteran was determined to be not disabled based on a claim filed in March 1994. The veteran was also afforded VA examination in October 1998. On physical examination, it was noted that there was objective evidence of painful motion, spasm, weakness and tenderness. The veteran had a postural abnormality insofar as his back was flexed forward 6 degrees. The musculature of the back was atrophic. The veteran had on a back brace, which was noted to be a sturdy one; he stayed in it and used a cane. There were no neurological defects noted. Forward flexion was achieved to 60 degrees, with backward extension achieved to 12 degrees, flexion to the right achieved to 26 degrees and flexion to the left achieved to 14 degrees. The examiner noted that motion stopped where pain began. X-rays of the lumbosacral spine revealed chronic degenerative changes, most pronounced at the L5-S1 and L4-5 vertebral levels. A vacuum phenomenon was also evident with marginal sclerosis and grade I anterior spondylolisthesis of L5-S1. No acute fractures were identified. The diagnosis was degenerative joint disease in the lumbosacral spine with loss of function due to pain confirmed by X-rays. The examiner opined that the veteran's service-connected low back disability does have a tremendous impact on his ordinary activity and his ability to maintain employment. The examiner believed that the veteran was unemployable. In the instant case, the Board observes that the veteran was granted service connection and assigned a 10 percent disability rating under Diagnostic Code 5295 in a March 1987 rating decision. In February 1995, the RO granted an increased rating to 20 percent under Diagnostic Code 5292- 5295. Following additional evidentiary development in conjunction with the Board's 1998 Remand order, however, the veteran was granted an increased rating to 40 percent under Diagnostic Code 5295-5293. According to the applicable criteria, a 40 percent disability evaluation is warranted for severe limitation of motion of the lumbar spine. 38 C.F.R. Part 4, Diagnostic Code 5292 (1999). A 40 percent evaluation is also warranted for 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, or 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 (1999). In addition, a 40 percent evaluation is warranted for severe intervertebral disc syndrome with recurring attacks with intermittent relief. A 60 percent evaluation requires pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy (i.e., with characteristic pain and demonstrable muscle spasm and an absent ankle jerk or other neurological findings appropriate to the site of the diseased disc) and little intermittent relief. 38 C.F.R. Part 4, Diagnostic Code 5293 (1999). When all the evidence is assembled, the Board is then responsible for determining 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. See 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1997); and Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). After a contemporaneous review of the evidence of record, the Board finds that the an increased disability rating for mechanical low back pain syndrome with degenerative joint disease is not warranted. In reaching this conclusion, the Board observes that when a diagnostic code provides for compensation based on limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1999) must also be considered. The ratings must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Because the veteran is presently receiving the maximum schedular rating for lumbosacral strain (Diagnostic Code 5295) and limitation of motion of the lumbar spine (Diagnostic Code 5292), functional loss due to pain is not for consideration in conjunction with these evaluations. See Johnston v. Brown, 10 Vet. App. 80 (1997). Additionally, it is noted that Diagnostic Code 5293, intervertebral disc syndrome, involves loss of range of motion because the nerve defects and resulting pain associated with injury to the sciatic nerve may cause limitation of motion of the cervical, thoracic, or lumbar vertebrae. Therefore, pursuant to Johnson v. Brown, 9 Vet. App. 7 (1996), 38 C.F.R. §§ 4.40 and 4.45 must be considered when a disability is evaluated under this diagnostic code. After many years of being evaluated under Diagnostic Code 5295, the RO has recently assigned Diagnostic Code 5293 for purposes of evaluating the veteran's service- connected low back disorder. When a veteran has received less than the maximum evaluation under Diagnostic Code 5293 based upon symptomatology which includes limitation of motion, consideration must be given to the extent of the disability under 38 C.F.R. §§ 4.40 and 4.45, even though the rating corresponds to the maximum rating under another diagnostic code pertaining to limitation motion. VAOPGCPREC 36-97 (O.G.C. Prec. 36-97). The General Counsel was careful to note, however, that the disability may only be rated under the diagnostic code that produces the higher rating if that diagnostic code better reflects the extent of the veteran's disability. O.G.C. Prec. 36-97 at 4-5 (emphasis added). Notwithstanding, the Board concludes that evaluation of this disability under Diagnostic Code 5293 is not supported by the evidence of record. Indeed, the veteran's recent 1998 VA examination report shows that he manifested no neurological abnormalities. Accordingly, there is no justifiable basis for further consideration of this disability under Diagnostic Code 5293. In conclusion, the weight of the evidence establishes that the veteran's mechanical low back pain syndrome with degenerative joint disease is no more than 40 percent disabling. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and an increased rating must be denied. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER An increased disability rating for mechanical low back pain syndrome with degenerative joint disease is denied. A. BRYANT Member, Board of Veterans' Appeals