BVA9503985 DOCKET NO. 93-12 314 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased evaluation for lumbar strain, residuals of back injury, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from December 1972 to November 1974. This appeal arose from a December 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The RO denied entitlement to an increased evaluation for lumbar strain, residuals of back injury. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his low back disability is more disabling than currently evaluated. He states that he is unable to stand up for any length of time without experiencing lower back pain. He states that sometimes, just a change in weather conditions will precipitate back pain. He avers that he has to alternate between sitting and standing because even sitting down brings on tightness in his legs. 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 relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against a grant of an increased evaluation for lumbar strain, residuals of injury. FINDING OF FACT Lumbar strain, residuals of injury, is productive of not more than moderate impairment. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for lumbar strain, residuals of injury, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.71(a), Diagnostic Codes 5295, 5292 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION Initially the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that he has presented a claim which is plausible. The Board is satisfied 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 accordance with 38 C.F.R. §§ 4.1 and 4.2, and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the evidence of record pertaining to the history of the veteran's lumbar strain. The Board has found nothing in the historical record which would lead to a conclusion that the current evidence of record is inadequate for rating purposes. A March 1990 VA examination report shows the veteran complained of aching low back pain since January 1990, at which time he had sustained a back injury. On examination he was observed to stand in an 18 degree flexed position for ranges of motion. Forward flexion was to 32 degrees. The appellant was unable to extend backwards. Lateral flexion was to 12 degrees. Rotation was to 6 degrees. He was wearing a back brace. Deep tendon reflexes were 0 to +1 and equal. Straight leg raising was bilaterally positive. The examination diagnosis was recent back injury. In February 1991, the Board issued a decision granting entitlement to compensation benefits for a back disorder under the criteria of 38 U.S.C.A. § 1151. The Board found, among other things, that in January 1990, the veteran had fallen on a wet floor during a January 1990 VA hospitalization and incurred a low back strain. The Board determined that the fall and back injury were the result of an accident due to VA hospitalization. In a May 1991 rating decision, the RO implemented the Board's determination by reflecting back injury, lumbar strain as service-connected with a 20 percent evaluation. The veteran was seen on two occasions by VA on an outpatient basis at the local VA medical facility with complaints of and need for treatment of low back pain in September 1991. At a November 1991 VA examination the veteran complained of low back pain "all the time" for one year. On examination he could stand only in forward flexion (lumbar) spine position at 10 degrees. The appellant was wearing a back brace. He was unable to do any ranges of motion because of back pain. The appellant's brother sat him down on the examining table for deep tendon reflexes. Deep tendon reflexes were 0 to +1 and equal. The claimant could not lie down for straight leg raising because of pain. The diagnosis was lumbosacral strain. At a December 1991 VA orthopedic examination the veteran complained of low back pain with pain in both legs. He stated that his foot ached all of the time, like a toothache. On examination the veteran was observed to ambulate in a very stooped position. He gestured and postured, and grimaced. He was in a back brace, lumbosacral corset. He was unable to sit to do a straight leg raise test, but had to have his back brace on to do this. The straight leg test was difficult to examine due to the increased pain that this seemingly produced. Reflexes were also very difficult to test. Atrophy was negative. The examiner noted that the veteran was definitely tender in the left costovertebral angle and possibly somewhat in the mid line of the lower lumbar spine. As to evidence of pain, it was noted that the veteran jumped when touched in the left costovertebral angle of the left back. The examination impression was that the veteran had a lumbar spine sprain and that one should also rule out urinary tract infection as causing many of his problems. At a September 1992 VA orthopedic examination the veteran reported that since a back injury in January 1990, he had had back pain going into his legs at times and a throbbing pain going into both calves. He had been treated with analgesics and back braces. He had not had any surgery and a myelogram revealed a dislocated disc. An examination of the back disclosed tenderness in the mid line of the lower lumbar spine. Straight leg raising produced back pain at 45 degrees. Reflexes were 1+ and equal. There was no atrophy of the calf or thigh. Motor and sensation appeared to be intact. Toe walk and heel walk were with difficulty. Sensation was spotty at best. Forward flexion was to 45 degrees. Extension was to zero degrees. Right and left bending was to 30 degrees. Right and left rotation was to 40 degrees. There was no spasm of the paraspinous muscles. An x- ray of the lumbar spine was interpreted as revealing normal alignment of the lumbar vertebra and vertebral bodies and disc spaces maintained at normal height. There was minor marginal spurring at T-12 to L-2. Pedicles and transverse processes were intact. The examination diagnostic impression was degenerative joint disease of the lumbar spine. The veteran's low back disability is evaluated as 20 percent disabling under diagnostic code 5295 of the VA Schedule for Rating Disabilities. The current 20 percent evaluation contemplates lumbosacral strain with muscle spasm on extreme forward bending and loss of lateral spine motion. The next higher evaluation of 40 percent requires severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in the 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. It is clear from the record that the many VA examination reports discussed earlier do not contain evidence of the above requite criteria with the exception of osteoarthritic changes demonstrated on x-ray. Application of the criteria under diagnostic code 5292 show that the veteran would similarly not qualify for an evaluation in excess of 20 percent. In this regard, the Board observes that moderate limitation of motion of the lumbar spine may be assigned a 20 percent evaluation under diagnostic code 5292. The next higher evaluation requires a demonstration of severe limitation of motion. This is not shown by the evidence of record. The VA examinations on file have demonstrated not more than moderate limitation of motion. The veteran does not have severe intervertebral disc syndrome which would warrant a 40 percent evaluation under diagnostic code 5293. The Board does not question whether the appellant experiences pain. Such pain is contemplated in his current 20 percent evaluation thereby precluding a grant of an increased evaluation for functionally disabling pain under the criteria of 38 C.F.R. § 4.40. No question has been presented as to which of two or more evaluations would more properly classify the severity of the appellant's low back disability. 38 C.F.R. §§ 4.7. The appellant's low back disorder has not rendered his disability picture unusual or exceptional in nature and there is no evidence of record to show that it has markedly interfered with his employment. It has not required frequent inpatient care as to render impractical the application of regular schedular standards, thereby precluding a grant of an increased evaluation on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). The veteran's low back disability is manifested by periodic pain, occasional treatment on an outpatient basis, and discomfort in motion. His symptoms are all contemplated in his current 20 percent evaluation and with application of pertinent governing criteria, are not more than moderately disabling. For the foregoing reasons, the Board concludes that the record does not support a grant of an increased evaluation for lumbar strain, residuals of injury. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.71(a), Diagnostic Codes 5295, 5292. ORDER Entitlement to an increased evaluation for lumbar strain, residuals of back injury, is denied. BRUCE KANNEE 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.