Citation Nr: 0003739 Decision Date: 02/14/00 Archive Date: 09/08/00 DOCKET NO. 97-24 278 DATE FEB 14, 2000 On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial rating greater than 10 percent for postoperative herniated nucleus pulposus at L4-L5, and L5-S1. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Hickey, Counsel INTRODUCTION The veteran had active service from July 1974 to July 1977, and from November 1977 to April 1996. This appeal to the Board of Veterans' Appeals (Board) arises from the July 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for postoperative herniated nucleus pulposus at the L4-L5, and L5-S1, evaluated as noncompensably disabling. The evaluation was increased to 10 percent by a rating action in April 1998. This case was previously before the Board in May 1999 when it was remanded for further evidentiary development. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. Postoperative herniated nucleus pulposus at L4-L5, and L5-S1, is manifested by subjective complaint of low back pain and clinical evidence of decreased sensation in the L2, L3, L4, L5 and S1 distribution of the right lower extremity. CONCLUSION OF LAW Postoperative herniated nucleus pulposus at L4-L5, and L5-S1, is 10 percent disabling and no more in accordance with the applicable schedular criteria. 38 U.S.C.A. 1155, 5107(b) (West 1991); 38 C.F.R. 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59 and 4.71a, Codes 5292, and 5293 (1999). - 2 - REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background Service medical records reflect that beginning in March 1975 the veteran was treated on multiple occasions for symptoms referable to the low back area and right lower extremity. Until 1993 the veteran was treated with conservative measures including physical therapy. A magnetic resonance imaging spectroscopy (MRI) conducted in December 1993 revealed minimal focal right paramedian disc bulge of the L3-L4, moderately large right posterior disc herniation with impingement of the right L5 nerve root in the lateral recess, and mild broad base disc bulge of L5-S1. In April 1994 he underwent right L4-L5, L5-S1 hemilaminectomies and diskectomies with foraminotomies for herniated nucleus pulposus. The veteran tolerated the surgery well and had near total resolution of his preoperative symptoms. Thirty days after surgery his symptoms were describe as minimal and infrequent paresthesia and dysesthesias in an L5 distribution on the right lower extremity. At the time of his February 1996 physical examination for separation from service it was recorded that the veteran had low back pain and right lumbar radiculopathy. Although a further neurosurgery work up was recommended no such report is of record. On VA examination conducted in June 1996 the veteran complained of back pain which was mainly numbness and pain involving his right lower extremity. He reported that in 1980 he was found to have a slipped disc, treated with conservative measures. He said that he reinjured his back in 1993, and he had surgery in 1994, which resolved a lot of the pain. The veteran's current complaints were mainly intermittent numbness involving the sole of the right foot and the back of the right leg. An MRI in the past had reportedly revealed scar tissue in the area of the surgery. Objective examination of the back disclosed normal lordotic curvature with no evidence of scoliosis. There was no tenderness to palpation or costovertebral angle tenderness. The veteran had full range of motion in the upper and lower extremities. Motor strength was essentially 5/5 in upper and lower extremities, with tone and bulk appropriate for age. Sensory examination - 3 - demonstrated some blunting involving the L4, L5, and S1 distribution on the right lower extremity. Deep tendon reflexes were all at 1-2+ in the upper and lower extremities, and symmetrical. The veteran's gait was narrow based and Romberg's was negative. Plantars response by reflexor was bilaterally equal. The pertinent assessment was L4, L5, and S1 radiculopathy by history and exudation. When the veteran testified at his personal hearing in December 1997 he related that his lower back was stiff, sore and aching all the time. He also noted pain in his right thigh, and right foot, as well as occasional numbness in his "big toes," which the veteran felt was related to the nerves in his back. He said that bending forward or backward causes his back to hurt. In the morning it takes him a while to become mobile. He takes extra strength Tylenol for the discomfort. With regard to right leg symptoms the veteran testified that at times early in the morning, he would use a cane for the first thirty or forty minutes. In response to questioning,, the veteran also said he has constant muscle spasms which flare-up and go away. He indicated that additional back surgery had been discussed at the VA hospital, but the veteran was not interested. VA outpatient treatment records dated in January 1997 to February 1998 reflect that the veteran was followed for chronic low back pain with possible radiation into the right lower extremity. When he was seen in pain clinic in July 1997 it was noted that he was status post L4/L5, L5/S1 diskectomy in 1994, with relief until 1995. The veteran described pain radiating down his right leg, sciatica. It was recorded that he did not complain of low back pain. On objective examination deep tendon reflexes were symmetric and 2/4. The veteran had decreased sensation in the right leg, especially the foot. Patrick's sign was positive on the right, and straight leg raising test was positive at 60 degrees on the right. Motor examination was 5/5 bilaterally in the lower extremities. The assessment was radicular pain probably secondary to scar tissue versus _____ disc. In the report of his August 1997 Persian Gulf Examination it was recorded that the veteran had chronic low back pain with occasional right sciatica, numbness in the right foot, and paresthesia without weakness. - 4 - On VA examination conducted in August 1999 the veteran reported pain focused in the low back with radiation into the right leg, which was worse on activity. He had full range of motion of the feet, ankles, knees, and hips. Sensation was decreased to pinprick and light touch over the L2, L3, L4, L5, and S1 distribution in the right lower extremity. There was no evidence of muscle atrophy or fasciculation in the extremities. Muscle strength of the lower extremities was 5/5 in all joints. There was no evidence of any leg length discrepancy. No pain was found on palpation of the lumbar spine, and there was no evidence of muscle spasm or fasciculation of the lumbosacral paraspinal muscles. Active range of motion of the lumbosacral spine was 75 degrees flexion, 30 degrees extension, 35 degrees lateral flexion, bilaterally, all considered normal ranges of motion in the lumbar spine. Deep tendon reflexes were present and equal in the lower extremities. The veteran's gait was nonantalgic without the use of any assistance device, and with no limp. There were no other focal neuromuscular deficits. The assessment was that clinically tie veteran had low back pain with the only focal findings being decreased sensation to pinprick and light touch over the right lower extremity. There were no other significant focal neuromuscular or functional deficits on examination. The examiner noted that he had reviewed the pertinent parts of the veteran's claims folder and in accordance with the Board's remand all findings had been reported. The low back did not exhibit any weakened movement, excess fatigability, or incoordination. The examiner's opinion as to whether pain could significantly limit functional ability during flare-ups, or on repeated use over time, was that this is a possibility. The examiner noted that he had not seen the veteran over time, but it was a possibility that it could limit functional ability during flare-ups. There was no additional loss of range of motion which the examiner could identify. Legal Analysis The veteran's claims for a higher evaluation for compensation benefits are "well grounded" within the meaning of 38 U.S.C.A. 5107(a). Proscelle v. Derwinski, 2 Vet. App. 629 (1992). When a claimant submits a well-grounded claim, VA must assist him in developing facts pertinent to the claim. In this case the Board is - 5 - satisfied that all available relevant evidence has been obtained regarding the claim and that no further assistance to the veteran is required to comply with 38 U.S.C.A. 5107(a). In general, disability evaluations are assigned by applying a schedule of ratings which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. 1155. Although the regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history, 38 C.F.R. 4.1, 4.2, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In Fenderson v. West, 12 Vet. App. 119 (1999) the Court found that the "present level" rule, set out in Francisco, is not applicable to original ratings. The significance of this distinction was that at the time of an initial rating, separate ratings could be assigned for separate periods of time based on the facts found---a practice known as "staged ratings." Fenderson, supra. Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). These regulations include, but are not limited to 38 C.F.R. 4.1, 4.2, and 4.10. Congress has directed that the rating schedule reflect the average impairments of earning capacity resulting from disability. 38 U.S.C.A. 1155. However, the rating schedule may not be employed as a vehicle for compensating a claimant twice, or more, for the same symptomatology; which would result in overcompensation for the actual impairment of earning capacity. Brady v. Brown, 4 Vet.App. 203, 206 (1993). The evaluation of the same manifestation under multiple diagnoses is not contemplated by the regulatory provisions, which state that such "pyramiding" is to be avoided. 38 C.F.R. 4.14(1994). The critical element for evaluation under multiple codes is that none of the symptomatology of one condition is duplicative - 6 - Of, or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet.App. 259 (1994). Under 38 C.F.R. 4.3 VA is required to resolve any reasonable doubt regarding the current level of the veteran's disability in his favor. In accordance with 38 C.F.R. 4.7, 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. Under 38 C.F.R. 4.40 (1999), disability of the musculoskeletal system includes functional loss due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. 4.45 (1999), factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. In rating disability of the joints consideration is to be given to pain on movement, swelling, deformity or atrophy of disuse. Additionally, it is the intention of the rating schedule to recognize actually painful joints due to healed injury as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. 4.59. The veteran's disability is currently evaluated under the provisions of Diagnostic Code 5293, pertaining to intervertebral syndrome. Mild symptoms are rated as 10 percent disabling under Code 5293. A 20 percent rating is for assignment for moderate intervertebral disc syndrome, with recurrent attacks. A 40 percent evaluation is provided where there is evidence of severe recurring attacks with intermittent relief. A rating of 60 percent requires a pronounced disorder, with persistent symptoms compatible with sciatic neuropathy, with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to the site of deseased disc, with little intermittent relief. The medical evidence in this case reflects that postoperative herniated nucleus pulposus at L4-L5, and L5-S1, is manifested by subjective complaints of pain in the - 7 - right lower extremity and low back region, with clinical evidence of decreased sensation in the L2, L3, L4, L5 and S1 distribution of the right lower extremity. Clinical findings over the pertinent period have consistently reflected that there is no tenderness to palpation of the lumbar region, and no decrease in strength or range of motion in the lower extremities. There is no evidence of muscular atrophy in the extremities and no muscle spasm in the lumbar paraspinal region. Similarly, no evidence was found of muscle fasciculation in the back or legs. Although it was considered to be possible that pain could limit functional ability on flare-ups or repeated use, the VA examiner in 1999 found no evidence of weakened movement, excess fatigability, or incoordination, and no significant focal neuromuscular or functional deficits, beyond the decrease in right leg sensation. On application of the schedular criteria to the facts in this case it is clear that the medical evidence does not warrant an increased rating under Code 5293. The record does not reflect moderate intervertebral disc syndrome, with recurrent attacks, the criteria for a 20 percent rating, the next higher level of evaluation. Rather, the medical findings in this case most nearly approximate the criteria of mild symptoms warranting a 10 percent rating for intervertebral disc syndrome. Also for consideration are the rating criteria pertaining to limitation of motion of the lumbar spine, which is evaluated under the provisions of Diagnostic Code 5292. Where there is slight limitation of motion, the rating is 10 percent. A 20 percent evaluation is provided for moderate limitation of motion, and where limitation of motion is severe a 40 percent rating is for assignment. Inasmuch as range of motion in the lumbar spine is considered to be normal, no increase in evaluation of the veteran's disability is warranted on that basis. Full consideration has been given to the requirement of 38 C.F.R. 4.3 to resolve any reasonable doubt regarding the current level of disability in the veteran's favor. However, the medical evidence does not create a reasonable doubt regarding the level of this disability. The record simply does not reflect the presence of more severe symptomatology such as would warrant a higher evaluation under any applicable criteria. Accordingly, it is determined that the preponderance of the - 8 - evidence is against assignment of a disability rating greater than 10 percent for the veteran's postoperative herniated nucleus pulposus at the L4-L5, and L5-S1. ORDER A rating greater than 10 percent for postoperative herniated nucleus pulposus at the L4-L5, and L5-S1, is denied. G. H. SHUFELT Member, Board of Veterans' Appeals - 9 -