BVA9505640 DOCKET NO. 91-17 941 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to a rating in excess of 20 percent for a low back disability, classified as "spondylolysis L5." REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Gutstein, Counsel INTRODUCTION The veteran served on active duty from June 1978 to June 1982. This matter came before the Board of Veterans' Appeals (Board) on an appeal from the April 1990 rating decision of the Department of Veterans Affairs (VA) Honolulu, Hawaii, Regional Office (RO), which increased the evaluation for service-connected low back disability classified as "spondylolysis L5" from 10 percent disabling to 20 percent disabling, effective from August 16, 1989. The veteran filed a notice of disagreement in June 1990 and was furnished a statement of the case in July 1990. He filed a substantive appeal later in July 1990. The veteran was afforded a hearing at the RO in August 1990. This case was previously remanded by the Board in October 1991 and June 1993. The veteran has been represented throughout his appeal by the Disabled American Veterans which has submitted written argument in his behalf. The case was referred by the Board to the veteran and his representative in October 1994 for comment relative to evidence to be relied on by the Board subsequent to the issuance of the most recent Statement of the Case or Supplemental Statement of the Case in this claim. Thurber v. Brown, 5 Vet.App. 119 (1993). By rating action of August 1993, the RO granted service connection for dysthymia, as secondary to service-connected low back disability, and assigned a 10 percent evaluation for that disability effective from September 1990. The veteran was furnished a copy of the August 1993 rating decision as part of the RO's September 1993 notification of award. CONTENTIONS OF APPELLANT ON APPEAL It is argued that there is disc involvement of the veteran's service-connected low back disability, warranting a higher evaluation. According to the veteran and his representative, the symptoms of the back disability include sciatic pain radiating down the legs, muscle spasms, and tenderness. It is therefore argued that a higher evaluation is also warranted pursuant to the provisions of 38 C.F.R. § 4.40 (1994). It is also requested that the provisions of 38 C.F.R. § 4.7 (1994) and other pertinent regulatory provisions be applied to the review of this case. 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 file. Based on its review of the evidence in this matter, it is the decision of the Board that the preponderance of the evidence is against assignment of a rating in excess of 20 percent for the veteran's service-connected low back disability, currently classified as "spondylolysis L5." FINDING OF FACT The veteran has confirmed X-ray evidence of spondylolysis of L5 with no evidence of spondylolisthesis, with tenderness of the low back involving the paraspinal muscles but with essentially normal motion of the lumbar spine without objective evidence of muscle spasm present. An abnormal disc is not demonstrated. CONCLUSION OF LAW A rating in excess of 20 percent for low back disability, currently classified as "spondylolysis L5," is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § § 4.7, 4.40, 4.45 and Part 4, Code 5295 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The preponderance of the evidence is against assignment of a rating in excess of 20 percent for the veteran's service- connected low back disability, currently classified as "spondylolysis L5." The determination is based upon a review of the complete evidentiary record which includes the veteran's service medical records, post service medical reports, testimony offered by the veteran at his personal hearing and other statements of the veteran and his representative in support of the claim. Service records show that the veteran served on active duty from June 1978 to June 1982. Service medical records show that the veteran injured his right shoulder in December 1981 with a resulting fracture of the right scapula with subsequent back complaints shown in April 1982. On subsequent post service VA outpatient treatment reports in August 1982, X-rays showed a unilateral spondylolysis with no definite evidence of a spondylolisthesis. On examination, the low back was nontender with full range of motion. When initially examined by the VA for evaluation purposes in July 1984, the spine was nontender and the veteran could touch his toes from a standing position without difficulty; the balance of the examination at that time was negative. Treatment records in October 1988 showed complaints of low back pain with radiation down the right lower extremity and occasionally with prolonged standing, the pain would go down to the right foot. Objectively, the veteran walked with a normal gait, could perform a full squat and his motion showed forward flexion of 90 degrees, extension to 30 degrees, lateral motion 30 degrees bilaterally and rotation 40 degrees bilaterally. He was tender in his lower back region, the right side more than the left, and extremely tender over the sacroiliac joint and the middle of his right buttock area. The orthopedist diagnosed low back pain with radiculopathy, spondylolysis and sacroiliac joint strain on the right. When seen at the clinic at the end of October 1988, there was complaint of low back pain with objective finding of minimal paravertebral muscle spasm. Recurrent muscle spasm was also noted at the treatment clinic in July 1989. In September 1989, a private physician reported treating the veteran for his employer, the Postal Service, with a history of right hip pain. The examiner found two-plus sciatic notch tenderness with positive straight leg raising test at 90 degrees on the right. Herniated lumbar disc was suspected. The veteran was treated with physical therapy which he reportedly was receiving from the VA. The examiner was going to get the veteran a back brace to wear at work. VA treatment records dated in 1989 showed the veteran on light duty because of low back pain. On a VA orthopedic examination conducted in September 1990, the veteran complained of lower back pain with radiation to his right buttock. He also complained of occasional muscle spasm. The orthopedic surgeon noted a normal gait, ability to walk on the heels and toes, ability to perform a full squat and motion as follows: Flexion 90 degrees, extension to 25 degrees, lateral bending 25 degrees bilaterally and rotation 30 degrees bilaterally. There was minimal tenderness on the right lumbar area but with no report of muscle spasm. A VA neurological examination also conducted at that time was essentially negative with no neurological explanation for low back pain or leg numbness. An examination report by a VA staff physician at that time notes that the veteran was unable to lift, carry, push or pull any object in excess of 15 pounds and was not able to work for more than 20 minutes at a time in a standing position, with his work restricted largely to a sitting position with the ability to get up and move around briefly every 60 to 90 minutes. Copies of a magnetic resonance imaging report in July 1990 and a January 1991 bone scan did not reveal the presence of any disc problem. May 1992 X-rays again showed right spondylolysis of L5 but no associated spondylolisthesis present. Otherwise, the most recent VA orthopedic examination conducted in July 1992 showed continued complaints of tightness and discomfort in the low back with occasional spasm in the lower back and occasionally a tingling sensation going down the right leg, but with the veteran reporting his leg pain had greatly improved from his last examination by the same orthopedist in 1990. He was on no special medications for his back, took an occasional Tylenol, and was doing his back and abdominal strengthening exercises. He limited his sitting and standing to one hour each and carried no more than 20 pounds. Objectively, the findings were essentially as reported before, with almost the same limitation of motion of the lumbar spine, minimal tenderness in the paraspinal muscles, around the L5 - S1 level, and with no objective evidence of radiculopathy. The diagnosis was spondylolysis of L5 with facet arthropathy at the L5 - S1 facet on the left side. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. The veteran's low back disability is currently rated by analogy to lumbosacral strain under Diagnostic Code 5295. This provides a 20 percent evaluation with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. In order to assign a 40 percent evaluation, the disability must be severe, 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 osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. The evidence shows that the veteran has a good range of motion. Although he occasionally has muscle spasms, the spasms are not regularly elicited on forward bending. It is clear from a review of the above evidence that the veteran demonstrates virtually no manifestations of severe disability when viewed against the criteria of Diagnostic Code 5295 and the symptoms are far more consistent with the criteria for a 20 percent rating. Alternatively, the veteran may be rated on the basis of limitation of motion of the lumbar spine, requiring a 20 percent evaluation for moderate limitation of motion and a 40 percent rating for severe limitation of motion under Diagnostic Code 5292. Under the VA Physician's Guide for Disability Evaluation Examinations, at Section VII, Part 2.23, normal range of the lumbar spine is listed as 95 degrees flexion forward, 35 degrees extension backward, 40 degrees lateroflexion and 35 degrees rotation. Under this criteria, since the veteran has consistently demonstrated an ability to bend forward 90 degrees, it cannot be stated that he has marked limitation of forward bending in standing position as required for a 40 percent evaluation under Diagnostic Code 5295; nor does he qualify for a 40 percent rating for severe limitation of motion under Diagnostic Code 5292 since flexion was 90 degrees, extension was 25 degrees, lateral bending was 25 degrees and rotation was 30 degrees bilaterally, reflecting only a slight loss of motion in any direction except forward where there was no loss of motion. Accordingly, a rating of 20 percent for moderate limitation of motion of the lumbar spine appears to be more than generous under the above-cited criteria. Where there is a question as to which of two evaluations 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 (1994). As stated above, in the absence of severe disability under Diagnostic Code 5295, the criteria for the higher rating has not been met. Finally, the argument has been made that the veteran has manifested symptomatology consistent with a disc problem and should be rated under Diagnostic Code 5293 for intervertebral disc syndrome. Under this heading, a 20 percent rating may be assigned for moderate intervertebral disc syndrome with recurring attacks, and a 40 percent rating may be assigned for severe disability with recurring attacks, with intermittent relief. However, despite the fact that the physician who treated the veteran for the Post Office believes that the veteran might have a disc problem, he did not provide clinical evidence to support his diagnosis, and X-rays and related studies have failed to demonstrate an abnormal disc, while neurological testing has been essentially negative with no objective evidence of radiculopathy present. Accordingly, the veteran cannot be properly rated under this code since there is no confirmed diagnosis of disc syndrome. The element of pain is a factor to be considered in evaluation of the veteran's low back disability. Under 38 C.F.R. § 4.40 (1994), functional loss may be due to absence of part, or all, of the necessary bones, joints or muscles, or associated structures, or due to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. It is noted in 38 C.F.R. § 4.45 (1994) that as regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to considerations including less movement than normal, more movement than normal, weakened movement, excessive fatigability, incoordination and pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing and weight bearing, are related considerations. The Board has considered the element of pain in the evaluation of the veteran's low back disability, and the 20 percent rating currently assigned contemplates the factor of pain (tenderness of muscles) under Diagnostic Code 5295 which provides a 10 percent rating for characteristic pain on motion. The 20 percent evaluation, therefore, includes consideration of such pain. Consideration has been given to the potential application of various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, the Board finds that the following section does not provide a basis upon which to assign a higher disability evaluation. The evidence discussed above does not suggest that the service-connected low back disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards, so as to warrant the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1994). For example, the disability has not required more frequent periods of hospitalization than that required for surgical correction of the back, nor does it present marked interference with employment contemplated by the schedular criteria. In this regard, while the Board notes that the veteran reported leaving his work at the Post Office as a result of the physical demands of the job, the objective findings do not demonstrate that the veteran is so physically handicapped due to his service-connected disability as to prevent him from engaging in work that involves physical labor. Accordingly, the Board concludes that the evidence as a whole does not warrant assignment of a rating in excess of 20 percent for low back disability, currently classified as "spondylolysis L5." 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. Part 4, Code 5295 (1994). ORDER Entitlement to a rating in excess of 20 percent for a low back disability, currently classified as "spondylolysis L5" is denied. G. H. SHUFELT 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.