Citation Nr: 0003109 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 97-06 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial rating higher than 40 percent for degenerative lumbar vertebral disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from July 1990 to January 1995. This matter came before the Board of Veterans' Appeals (BVA or Board) on appeal from decisions by the Department of Veterans Affairs (VA) Milwaukee, Wisconsin, Regional Office (RO). In a decision of August 1995, the RO granted service connection for a lumbar muscle strain, and assigned a 10 percent initial disability rating. In February 1997, the RO increased the initial disability rating to 20 percent. In November 1997, the RO revised the diagnosis to reflect service connection for degenerative lumbar vertebral disease, and increased the initial rating to 40 percent. In view of guidance from the United States Court of Appeals for Veterans Claims (Court) regarding appeals which stem from a disagreement with the original disability rating, the Board has characterized the issue on appeal as being a claim for a higher initial rating rather than characterizing it as a claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119 (1999). FINDINGS OF FACT 1. All evidence necessary for equitable resolution of the issue on appeal has been obtained. 2. The degenerative lumbar vertebral disease is not productive of more than severe intervertebral disc syndrome and has not resulted in unfavorable ankylosis. CONCLUSION OF LAW The criteria for a disability rating higher than 40 percent for degenerative lumbar vertebral disease are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5293 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Court has held that an allegation that a service- connected disability is more severe that it is currently rated is sufficient to establish a well-grounded claim for a higher rating. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for a higher initial rating is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Once a claimant has presented a well-grounded claim, the VA has a duty to assist the claimant in developing facts which are pertinent to the claim. See 38 U.S.C.A. § 5107(a) (West 1991). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue on appeal has been obtained. The evidence includes the veteran's service medical records, and post-service medical treatment records. The veteran has been afforded disability evaluation examinations. The Board finds that the examination reports contain all findings and all medical opinions necessary to assess the severity of the veteran's service-connected low back disorder. The Board further notes that the veteran has declined the opportunity to have a personal hearing. The Board does not know of any additional relevant evidence that is available. Therefore, no further assistance to the veteran with the development of evidence is required. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155 (West 1991). Separate Diagnostic Codes identify the various disabilities. The assignment of a particular Diagnostic Code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which Diagnostic Code or Codes are most appropriate for application in the veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The RO has rated the veteran's low back disability under 38 C.F.R. § 4.71a, Diagnostic Code 5295, which provides that a noncompensable rating is warranted where a lumbosacral strain is productive of slight subjective symptoms only. A 10 percent disability rating may be assigned where there is characteristic pain on motion. A 20 percent rating is warranted where there is muscle spasm on extreme forward bending, or unilateral loss of lateral spine motion in a standing position. A 40 percent rating is warranted if the lumbosacral strain is severe with 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, narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Diagnostic Code 5295 does not provide for a rating higher than 40 percent. A back disorder may also be rated based on the extent to which the disorder limits the motion of the back. Diagnostic Code 5292 provides that a 10 percent rating is warranted for limitation of motion of the lumbar spine which is slight in degree. A 20 percent rating is warranted for moderate limitation of motion. A 40 percent rating is warranted if the limitation of motion is severe. Again, however, Diagnostic Code 5292 does not provide for a rating higher than 40 percent. Alternatively, under Diagnostic Code 5293, a noncompensable rating is warranted for intervertebral disc syndrome which is postoperative and cured. A 10 percent rating is warranted for intervertebral disc syndrome which is mild in degree. A 20 percent rating is warranted for intervertebral disc syndrome which is moderate in degree with recurring attacks. A 40 percent rating is warranted for severe intervertebral disc syndrome with recurring attacks and little intermittent relief. A 60 percent rating is warranted for intervertebral disc syndrome which is pronounced, 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 the diseased disc, with little intermittent relief. Another Diagnostic Code pertaining to the back which potentially offers a rating higher than 40 percent is Diagnostic Code 5289 which provides that a 40 percent rating is warranted if there is favorable ankylosis of the spine, and a 50 percent rating is warranted if there is unfavorable ankylosis of the spine. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. See 38 C.F.R. § 4.14 (1999). The Court has emphasized that when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disorder should reflect functional limitation which is due to pain which is supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40 (1999). The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45 (1999). Since the present appeal for a higher evaluation arises from the initial rating decision which established service connection for that disability and assigned the initial disability evaluation, it is not only the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). The evidence pertaining to the severity of the low back disorder includes the report of a disability evaluation examination conducted by the VA in August 1995. The report shows that the veteran stated that he was working for a city driving a dump truck. His chief complaint was that of having low back pain. He said that he first noted problems with his lower back in 1991 when he developed severe back pain while lifting 55-gallon drums. He was initially felt to have a lumbar strain. He said that since that time he had experienced recurrent low back pain. He said that he would develop severe low back pain with minor precipitating events. He reported that the severe pain could last for one or two weeks and made it difficult for him to get out of a chair or to move around. He had not noted radiation of pain into his legs. He denied paresthesia or weakness in the lower extremities. He had not noted bowel or bladder incontinence. He took a non-steroidal anti-inflammatory agent when his back caused him problems. On examination, the veteran was robust and healthy looking, and was in no acute distress. Examination of the spine revealed tenderness to palpation throughout the lumbar vertebra. There was no tenderness over the sacroiliac joints or over the paraspinal muscles. The range of motion was flexion to 70 degrees, extension to 20 degrees, lateral flexion to 20 degrees bilaterally, and rotation to 30 degrees bilaterally. Neurological examination of the lower extremities was normal. There was normal sensation to fine touch throughout both lower extremities. Motor strength was 5+ in all muscle groups of the lower extremities. Reflexes were 2+ and symmetrical in the patella and Achilles reflexes bilaterally. The assessment was recurrent lower lumbar muscle strain. X-rays of the lumbosacral spine were interpreted as being normal. The report of an examination of the veteran's conducted by the VA in October 1996 shows that the veteran reported that he was working as a truck driver and that this caused a worsening of his back problems. He said that he had trouble sitting during cross-country trips, and that the constant bouncing caused discomfort. He also said that he had to lift pallets and unload boxes which required frequent bending and lifting. There was no radiation into the lower extremities, and no numbness or weakness in the legs. He occasionally used prescription muscle relaxants. On physical examination, he was in no acute distress, and ambulated without a noticeable limp. He was able to squat and then arise. There was mild tenderness to palpation throughout the lumbar spine. There was no tenderness over the paraspinal muscles, sacroiliac joints, or sciatic notches bilaterally. The range of motion was flexion to 60 degrees, extension to 20 degrees, lateral flexion to 20 degrees bilaterally, and rotation to 25 degrees bilaterally. There was discomfort at the extremes of these ranges of motion, particularly with flexion. Neurologic examination of the lower extremities was normal. There was normal sensation to fine touch and normal motor strength. There was no evidence of muscle atrophy. Reflexes were 2+ and symmetric. Straight leg raises were to 45 degrees on the right and 60 degrees on the left. At those extremes, there was discomfort, but not true radicular symptoms. The assessment was lumbosacral strain and normal neurological exam in the lower extremities. The evidence of record also includes various treatment records from both medical doctors and chiropractors. For example, a private medical record dated in March 1997 shows that the veteran was a truck driver who presented with a complaint of low back pain. He said that he injured his back in February 1997 when he was working on a trailer and fell forward landing on his hands and knees. Approximately one hour later he noted the gradual onset of low back pain without radiation or dysthesia into the lower extremities. He was initially treated with physical therapy, and had returned to work with recurrence of symptoms after 1 to 2 hours of driving. Other aggravating factors included bending and even light lifting. He indicated that he was able to walk without great difficulty. He denied bowel or bladder dysfunction. He indicated that he first injured his low back while in the military in 1992 and had been treated several times by the VA over the past several years for recurrences of his low back pain. On objective examination, the veteran appeared to be in some distress. His posture was erect and his gait appeared normal. Iliac crests and trochanters were level. Forward flexion was to fingertips just below the knees. Extension was to 5 to 10 degrees with increased pain. The stork maneuver was negative bilaterally. Heel and toe walking was normal. Manual muscle testing in the lower extremities was normal. Deep tendon reflexes were physiologic and symmetrical. Straight leg raising was negative. There was localized tenderness over the lower lumbar vertebral segments only. There was also some tenderness over the left iliopsoas. The assessment was low back pain with possible annular tear or possible spondylolysis. The veteran was advised to remain off work for 10 days until being reevaluated. Subsequent records contain similar information. The report of an MRI performed on the veteran's spine in March 1997 shows that the findings were interpreted as showing mild chronic degenerative disc changes at L4-5 and to a minimal degree at L5-S1, negative for herniated nucleus pulposus. There were also chronic developmental Schmorl node type deformities at virtually each level thought the lumbar spine. The report of a spine examination conducted by the VA in April 1997 shows that the veteran reported that as a result of his back pain he could no longer do truck driving and was going to have to look for a light type of employment. Physical examination revealed that the veteran was a healthy looking young man. He walked with a normal gait. Flexion of the back was to only 30 degrees. Extension was only to 10 degrees. Lateral motion was to 30 degrees bilaterally, and rotation was to 35 degrees bilaterally. There was definite tenderness to pressure over the mid lumbar area. It was not tender to the sides. Straight leg raising was to 80 degrees bilaterally. The reflexes were normal. With respect to functional loss due to pain, the examiner indicated that there was no excess fatigability or incoordination, but that there was pain on movement. The diagnosis was degenerative lumbar vertebral disease. The report of a neurosurgery evaluation conducted in August 1997 by John R. Russel, M.D., shows that physical examination revealed that the examiner could detect no lumbar spasms. There was limitation of lumbar flexion to 30 degrees, and tenderness in the midline to light pressure. Strength was excellent in both lower extremities. Sensation was intact. Following examination, the examiner stated that the veteran should be able to work with temporary restrictions of no lifting over 25 pounds, and no repetitive stooping, bending or twisting. The report of a chiropractic evaluation conducted in July 1998 by Michael Anderson, D.C., shows that the veteran was found to have an estimated whole person impairment of 20 percent due to his back injury. An associated report shows that the veteran's primary symptom was constant sharp pain with aching and spasms on both sides of the lower back. Radiation of the symptoms into both legs was reported. The veteran reported that his symptoms were aggravated by arising in the morning, and by coughing and lifting. He experienced apparent relief by bending back, forward, left and right, and by lying on his back and resting. On kinesiological evaluation, the left gluteus had weakness described as being Grade 4. On neurological evaluation, no sensory aberration was noted throughout the object dermatomes. On orthopedic evaluation, Kemp's test and Milgram's test were reported to be positive bilaterally. The Soto-Hall test was also reported to be positive. The low back had spasms and moderate pain. An x-ray was interpreted as showing early degenerative arthritis, moderate intervertebral disc space narrowing at L4-5 and L5-S1, moderate bony impingement (narrowing) affecting nerves bilaterally at L4-5 and L5-S1, and the vertebrae at L4-5 and L5-S1 reportedly demonstrated moderate subluxation (misalignment). Based on the foregoing, the Board finds that the medical evidence shows that the veteran's lower back symptoms are, at least with respect to the criteria embodied by Diagnostic Code 5293, consistent with no higher than the RO's assignment of a 40 percent disability evaluation. Although the veteran's low back disorder may be classified as "severe" in that it is apparently characterized by recurring attacks, and although the veteran has indicated that he has daily pain, the Board finds that the findings, as set forth above, indicate no more than severe intervertebral disc syndrome. The manifestations which are contemplated for a 60 percent rating, such as intervertebral disc syndrome which is pronounced, 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 the diseased disc, with little intermittent relief have not been shown. The Board further finds that the 40 percent rating adequately reflects that impairment attributable to functional impairment from pain, weakness, and fatigability. In determining that the currently assigned rating is appropriate, the Board observes that this rating under Diagnostic Code 5293 takes into account the functional limitation due to pain, in particular the limited back motion and pain on movement. Other factors listed in 38 C.F.R. § 4.45, such as more movement than normal, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, swelling, deformity, or atrophy of disuse, have not either been contended or demonstrated. Interference with sitting, standing, and weight-bearing have also been considered in the assignment of the 40 percent rating. The Board also notes that the evidence does not reflect the existence of lower extremity neurological deficits such as drop foot which might warrant a separate compensable rating. See Bierman v. Brown, 6 Vet. App. 125, 131 (1994). Accordingly, the Board concludes that the criteria for a disability rating higher than 40 percent for a low back disorder are not met. Having already established that the veteran's low back symptomatology is consistent with the RO's assignment of a 40 percent evaluation under Diagnostic Code 5293, the Board observes that the veteran's lower back condition is not sufficiently severe as to allow for an increased evaluation under Diagnostic Codes 5289 or 5292. First, insofar as the medical evidence contains no indication of ankylosis of the lumbar spine, Diagnostic Code 5289 provides no basis for an increased evaluation. Additionally, although limitation of motion of the veteran's lumbar spine might arguably be described as "severe," Diagnostic Code 5292 provides for only a 40 percent evaluation (the evaluation that is already in effect) for severe limitation of motion. No higher evaluation is available under Diagnostic Code 5292. 38 C.F.R. § 4.71a (1999). In view of the foregoing, the schedular criteria authorize a 40 percent evaluation, but no higher, for the veteran's lower back disability. The potential application of various provisions of Title 38 of the Code of Federal Regulations (1998) have been considered, but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." See 38 C.F.R. § 3.321(b)(1)(1999). In this regard, the Board finds that there has been no showing by the veteran that his service-connected disorder has resulted in marked interference with employment or necessitated frequent periods of hospitalization. He has not been hospitalized for the disorder and there has been no objective evidence submitted that the veteran is unemployable due to this disability. Under the circumstances, the Board concludes that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) have not been met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An initial disability rating higher than 40 percent for degenerative lumbar vertebral disease is denied. RAYMOND F. FERNER Acting Member, Board of Veterans' Appeals