Citation Nr: 0003192 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 95-19 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased evaluation for myalgia of the back, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The appellant ATTORNEY FOR THE BOARD Nancy R. Kegerreis INTRODUCTION The veteran served on active duty from February 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) from a December 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied an increased evaluation for myalgia of the back. FINDING OF FACT The veteran's pain caused by myalgia of the back cannot be differentiated from pain caused by his lumbar spine degenerative disc and degenerative joint disease and is currently manifested by severe limitation of motion on flare- ups. CONCLUSION OF LAW The schedular criteria for a disability rating of 40 percent for myalgia of the back have been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5292 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran was initially granted service connection for myalgia of the back at a noncompensable evaluation in March 1946. In February 1994, he requested a compensable rating, but the claim was denied in August 1994. Following testimony at a hearing before the RO in June 1995, a hearing officer in December 1995 also denied an increased rating. The veteran then filed a notice of disagreement. In May 1996, based on the receipt of additional evidence, the RO granted a compensable evaluation of 10 percent, effective from the date of the reopened claim, and issued a supplemental statement of the case in September 1996. The veteran completed his appeal that same month. He testified at a Board hearing at the RO in May 1998. Subsequently, the Board remanded the issue for further development, and in April 1999, the RO increased the evaluation to 20 percent, effective from the date of the reopened claim. The veteran contended at his Board hearing in May 1998 that he had suffered from back pain due to carrying a heavy pack in World War II, explaining that he had had to be hospitalized the following morning with a high temperature and swelling in his groin. Now, he alleges, he has constant severe back pain, which goes down his right leg. After he cuts his yard or works in his vegetable garden, he cannot sleep at night because of the pain. When he drives, he has to put his left foot on the brake because using his right foot too painful for him. When taking a shower, he cannot dry himself off with a towel below his knees. He can bend forward and touch his knees and put his socks on by putting his foot on a chair. The pain is now so severe that he must wear a back brace, carry a cane, and sometimes use a walker. The veteran's service medical records are negative as to complaints of back pain, nor was he treated for back pain, nor did he receive a diagnosis relating to a spinal disorder. His December 1945 separation examination, however, noted a vague reported history of an injury to his back as a civilian which would recur with heavy lifting. He stated, however, that his back did not bother him at the time of the separation examination. A February 1994 report of treatment, which was signed by a private physician, Jerry Fairchild, M.D., noted that the veteran had severe low back and right leg pain. Radiographic and neurological studies had shown intervertebral disc syndrome of L5, S1. The prognosis was undetermined. A VA disability evaluation examination report in July 1994 included the veteran's symptoms of low backache, with pain often radiating to the lower extremities; difficulty in bending; and inability to stand or walk more than 1 or 2 hours. The veteran was observed to walk satisfactorily and to be ambulatory without any assistance. He had no postural abnormalities or fixed deformity. He did not show muscle spasm. Range of motion studies were accomplished, showing forward flexion to 80 degrees, backward extension to 15 degrees, left and right lateral flexion to 15 degrees; rotation to left and right both 30 degrees. Examiner did find objective evidence of pain on motion. There was no neurological involvement. Reports of x-rays of the lumbosacral spine revealed marked arthritic changes. The diagnosis was degenerative joint disease of the lumbosacral spine. VA outpatient treatment records refer to a backache, reported in August 1994, and to osteoarthritis of the lumbosacral spine in September 1994. Records received from Victor Jackson, M.D., a private physician, mentioned occasional back pains in an April 1989 clinical note and an impression of degenerative joint disease on an office visit report in July 1991. June 1995 records disclosing treatment for several unrelated disorders included a undated problem list of six medical problems without reference to a back disability. VA outpatient treatment reports, dating from February 1995 to May 1995, did not refer to a back disorder. A February 1996 injury report, completed by Dr. Gary Black, a chiropractor, stated that his findings had included left antalgia restricted lumbar spinal motion with paravertebral muscle spasm. This condition, however, was not considered a permanent defect. Although Dr. Black repeated the veteran's statement of an injury to his back during World War II, he also stated that the current accident or injury was the only cause of the veteran's present condition. Treatment was with spinal manipulation, cryotherapy, and electric muscle stimulation. An x-ray had shown subluxation of L4. Records Robert S. Taylor, M.D., dating from June to August 1996, indicate that he had treated veteran for a prostate disorder. These records also mentioned complaints of back pain and prescriptions of Motrin. VA outpatient treatment reports, dating from November 1995 to June 1998, indicate treatment for several medical disorders, including degenerative joint and degenerative disc disease, without reference to myalgia. In November 1995, the veteran requested a back brace. He was seen for back complaints approximately five times in each of the three years encompassing 1996 through 1998. A second VA orthopedic examination report, this in February 1999, related a medical history as provided by the veteran. His chief complaint was low back pain. He reported having been injured in the service, resulting in a diagnosis of myalgia of the back. According to his claims file, he currently carried a diagnosis S1 radiculopathy. He claimed that his back pain was constant and precipitated by any movement. It was relieved by pain medication. On flare-ups, he said, he was unable to bend, unable to dry his left foot when bathing, unable to put on his socks, and unable to fasten his Velcro shoes. Physical examination included range of motion studies, which disclosed flexion from 0 to 70 degrees, although he was unable to extend fully, lacking 2 degrees of full extension. Rotation was from 0 to 10 degrees. Lateral bending was 0-6 degrees bilaterally. He exhibited pain with all ranges of motion. His gait showed a slight limp favoring his right leg. He had tenderness over his lumbar paraspinal musculature, but no spasms were found. Straight leg raising was positive at 30. The assessment was degenerative disc disease and degenerative joint disease of the lumbar spine with a documented S1 radiculopathy. Indicating that she had reviewed claims file, this examiner stated that the veteran had been service connected for lower back myalgia. She opined that it would be difficult to distinguish between the pain caused by myalgia and pain due to degenerative joint disease and disc disease. Referring to the veteran's reported functional limitations, she believed that flare-ups would cause additional functional limitations and that on flare-ups, the veteran would be unable to do much of anything. II. Legal Analysis The veteran has presented a well-grounded claim for a higher disability evaluation for myalgia of the back within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). 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 prior rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The veteran's treatment records have been associated with the claims file, and he has been accorded appropriate VA examinations. There is no indication that additional potentially relevant medical records exist that should be obtained before a decision on the merits. Accordingly, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Disability evaluations are administered under the Schedule for Rating Disabilities, which is designed to compensate a veteran for reductions in earning capacity as a result of injury or disease sustained as a result of or incidental to military service. Bierman v. Brown, 6 Vet. App. 125, 129 (1994). In evaluating a disability, the VA is required to consider the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; Dinsay v. Brown, 9 Vet. App. 79, 85 (1996). Although the Board must consider the whole record, 38 C.F.R. § 4.2 (1999), where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. Therefore, those documents created in proximity to the recent claim are the most probative in determining the current extent of impairment. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Shortly after his discharge from service, the veteran was granted service connection for myalgia of the back. Myalgia is defined as pain in a muscle or muscles. Dorland's Illustrated Medical Dictionary, 27th Edition, W.B. Saunders Company, Harcourt Brace Jovanovich, Inc., 1083 (1988). Another term that may be applied to such low back symptomatology is "lumbago." The veteran is currently evaluated at 20 percent under 38 C.F.R. 4.71a, Diagnostic Code § 5295, pertaining to lumbosacral strain. If the disorder is severe, with listing of the whole spine to the 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, a 40 percent evaluation is warranted. With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position, a 20 percent evaluation is warranted. With characteristic pain on motion, a 10 percent evaluation is warranted. If there are slight subjective symptoms only, the disorder is noncompensable. In reviewing the evidence relative to the requirements of this code, the Board is unable to conclude that the veteran's physical impairment due to myalgia is severe. Recent VA examinations did not note a listing of the spine or marked limitation of forward bending in standing position. VA considers normal forward flexion to be 95 degrees. VA examinations found forward flexion on range of motion studies to be 80 in 1994 and 70 in 1999. Such limitation of forward bending can, in no way, be considered to be "marked." Additionally, while some loss of lateral motion with osteoarthritic changes was reported, these signs alone, without with spinal listing or marked limitation of forward bending, are not sufficient to warrant an evaluation of 40 percent. Moreover, neither the 1994 examination nor the 1999 examination found any evidence of abnormal mobility on forced motion, muscle spasm, or loss of unilateral spine motion in standing position. Lateral bending, in fact, was found on both examinations to be equal bilaterally. The veteran's objective symptoms, comprise mainly of a moderate limitation of motion in forward bending and symptoms complained of in service and presently-- pain in his lower back. His disorder, therefore, does not even approach the criteria for a 40 percent evaluation under this code. The Board has also considered an evaluation based on 38 C.F.R. § 4.71a, Diagnostic Code 5292, relative to limitation of motion of the lumbar spine. If the limitation is severe, a 40 percent evaluation is warranted; if moderate, a 20 percent evaluation, and if slight a 10 percent evaluation. The veteran's forward flexion can best be described as slight, as he has loss of motion of only about 30 percent or less of normal. Limitation of extension on the first examination can be characterized as moderate and on the second as slight. Lateral flexion and rotation on the first examination can be characterized respectively as moderate and slight, and on the second as severe. As to rotation, the loss of motion was slight, and on the second as severe. Considering all of the examination results under this code, the overall limitation may best be considered as moderate. However, on competent medical examination, the doctor has stated that the veteran is likely to experience additional functional limitation on flare-ups, beyond that exhibited on examination. While the Board recognizes that the veteran has co-existing back disorders of degenerative disc disease and degenerative joint disease, which are not service connected, the examiner has said that it is difficult to distinguish between pain attributable to myalgia and that which is attributable to degenerative disc disease or degenerative joint disease. If the examiner is unable to distinguish between disability attributable to the service-connected condition and the non-service-connected condition, the Board certainly lacks the expertise to make such a distinction, in the absence of some medical evidence on which to base such a distinction. Accordingly, on the basis that the recent examination has shown lateral flexion and rotation which can only be interpreted as severe in degree, and recognizing that the additional functional limitations caused by pain during flare-ups is likely to result in severe limitation of motion, the Board finds that the evidence is at least in equipoise and warrants a 40 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5292. ORDER An evaluation of 40 percent for myalgia of the back is granted, subject to regulations governing the payment of monetary benefits. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals