BVA9501301 DOCKET NO. 93-06 223 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to the restoration of a 20 percent evaluation for service-connected low back strain, currently assigned a 10 percent evaluation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran in this case had active service from March 1966 to May 1969. This appeal to the Board of Veterans' Appeals (Board) arises from a September 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By that decision, the veteran's previous 20 percent evaluation for service-connected low back strain was reduced to 10 percent, effective from January 1, 1992. CONTENTIONS OF APPELLANT ON APPEAL The veteran's argument is that the RO committed error in denying entitlement to an increased rating, and, specifically, the restoration of his previous 20 percent rating for service- connected low back strain, in that the various manifestations of that disorder are more severe than currently evaluated and productive of a greater degree of impairment than is reflected by the 10 percent evaluation currently assigned. It is asserted that, as a result of the veteran's service-connected low back disorder, he suffers from muscle spasms, for which he has been given medication. It is requested that the provisions of 38 C.F.R. § 4.7 (1993) be applied. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all of the evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that a preponderance of the evidence is against the claim for the restoration of a 20 percent evaluation for service-connected low back strain. FINDING OF FACT The actual manifestations of the veteran's service-connected low back strain are currently productive of no more than characteristic pain on motion. CONCLUSION OF LAW An evaluation in excess of 10 percent for service-connected low back strain is not warranted. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, and Part 4, Code 5295 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the Board has found that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. We are also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required in order to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991). Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from a service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). In the present case, service connection is currently in effect for low back strain, incurred (according to the veteran) as a result of an injury in service, and evaluated as 10 percent disabling. In addition, the veteran suffers from nonservice-connected residuals of a bilateral L4-L5 laminotomy and central disc excision performed in April 1986. At the time of a VA medical examination conducted in May 1991, the veteran gave a history of back injury in 1967, sustained while unloading a truck. The veteran additionally commented that he re-injured his back in 1979, in a fall from a chair. On physical examination, the veteran entered the room with a cane. However, during the course of the examination, he was able to walk freely, with no limp. The veteran experienced great difficulty in cooperating with the examiner, and in demonstrating range of motion and muscle strength, complaining of pain or fear of pain as the cause of his limitation of motion. The veteran's spine exhibited a normal contour. There was a healed lumbosacral midline postoperative scar with no evidence of infection, induration, or drainage. It was noted at the time of evaluation that there was some flattening of lumbar lordosis. Lumbar flexion was limited by the veteran to 30 degrees, though he exhibited greater flexion while dressing and undressing. Lateral bending was limited to 10 degrees in each direction. There was a normal range of motion at the hips, knees, ankles, and feet. Tests of straight leg raising required some persuasion, but reached 80 degrees, bilaterally, with no apparent pain. Knee and ankle jerks were symmetrically present. In addition, motor power of the extensors and flexors of the toes and feet was preserved. Radiographic examination of the lumbosacral spine revealed a marginal osteophyte formation at the level of the 4th and 5th lumbar vertebrae, from degenerative changes. The disc spaces were preserved, and the sacroiliac joints appeared intact. The pertinent diagnoses noted were low back strain, with minimal degenerative arthritis, and residuals of postoperative laminectomy for herniated nucleus pulposus. Computerized axial tomography of the lumbar spine performed in October 1991 revealed bilaminar bony defects of the fifth lumbar vertebra compatible with possible prior surgery. (Questionable expansile laminoplasty). There was a soft tissue density just anterior to the right lamina of the fifth lumbar vertebra consistent with possible scar formation. Additionally noted were small central disc herniations at the levels of the 4th and 5th lumbar vertebrae and the 5th lumbar vertebra and 1st sacral segment, resulting in canal stenosis. In December 1991, VA general medical and neurologic examinations were undertaken. On general medical examination, the veteran gave a history of chronic low back syndrome, culminating in a laminectomy and diskectomy in 1985. The veteran stated that, following the aforementioned surgery, he was left with a chronic low back syndrome accompanied by radiation of pain down his left lower extremity. The veteran was observed to walk with a slight limp, utilizing a cane, and favoring his left leg. He was either unable or unwilling to flex his lumbosacral spine more than 75 degrees. Extension backward was to 30 degrees, with lateral flexion also to 30 degrees. In the supine position, the veteran exhibited a normal range of motion of the hips, knees, and ankles. Straight leg raising to 45 degrees resulted in some slight pain in the mid-lumbar area. The pertinent diagnosis noted was status post laminectomy, diskectomy of the 4th and 5th lumbar vertebrae, with radiation of pain down the left lower extremity; rule out radiculopathy of the 4th and 5th lumbar vertebrae and 1st sacral segment. On neurologic evaluation, the veteran gave a history of back pain radiating to his right leg for which he had undergone a laminectomy in 1985. Following that surgery, the veteran experienced some alleviation of his symptomatology, but, more recently, had experienced the return of his symptoms, with back pain radiating to his hips and his legs, particularly the right leg, resulting in some difficulty in walking and requiring his utilizing a cane for balance. Motor examination revealed 5/5 strength without drift or atrophy in all relevant muscle groups. There was a well-healed surgical scar in the lumbar region of the veteran's back, with no tenderness. Lasegue's sign was negative, bilaterally. There was good anterior, posterior, and lateral mobility, with no evidence of any decrement. The veteran experienced some difficulty in walking on his heels, particularly on the right, and in walking on his toes, also on the right. His tandem gait was described as ataxic. Sensory evaluation revealed some diminution on the lateral aspect of his right leg. Reflexes were one plus for the patellars, with absent Achilles reflexes, bilaterally. Radiographic examination of the lumbosacral spine revealed minimal dextroconvex scoliosis, with some narrowing of the L5 - S1 disc space. There was no evidence of any acute fracture or subluxation, and the pedicles were intact. The pertinent diagnosis noted was chronic lumbar radiculopathy, particularly at L5 on the right, with residual sensory, reflex, and gait disturbance, accompanied by no major motor weakness in a patient status post laminectomy at two levels. The Board notes allegations on the part of the veteran to the effect that he currently suffers from muscle spasms, for which he has been prescribed medication. However, in February 1991, at the time of an outpatient visit for treatment of back pain, no paravertebral muscle spasm or tenderness was in evidence. VA examinations of May and December 1991 are, similarly, negative for any evidence of muscle spasm in the veteran's lower back. We observe that the 10 percent evaluation currently in effect contemplates lumbosacral strain with characteristic pain on motion. A 20 percent evaluation would require evidence of muscle spasm on extreme forward bending, in addition to unilateral loss of lateral spine motion in a standing position. 38 C.F.R. Part 4, Code 5295 (1993). Based on the aforementioned, the Board is of the opinion that the actual manifestations of the veteran's service-connected low back strain are well encompassed by the disability evaluation presently in effect, and that an increased (which is to say restored) evaluation is not warranted. As it is not shown that these manifestations more nearly approximate the criteria for a 20 percent evaluation than a 10 percent one, the criteria of 38 C.F.R. § 4.7 (1993) are not for application. In reaching this determination, we have given due consideration to the veteran's testimony provided at the time of a personal hearing in October 1992. While informative, such testimony is neither credible nor probative as it pertains to the matter at hand. The veteran's statements to the contrary notwithstanding objective clinical evidence currently on file is to the effect that the veteran's low back symptomatology is, for the most part, the result of his nonservice-connected disc pathology and not service-connected low back strain. Statements by the veteran's examining physicians support this conclusion. Finally, in reaching the above decision, we have given due consideration to the potential application of various provisions of 38 C.F.R. Part 3 and 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, we find that the evidence discussed above does not suggest that the veteran's service-connected low back strain 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 pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) (1993). For example, the veteran's service-connected low back strain (as opposed to his nonservice-connected disc pathology) has not recently required frequent periods of hospitalization, nor does it present marked interference with employment, which has not already been contemplated by the evaluation currently in effect. ORDER Restoration of a 20 percent evaluation for service-connected low back strain is denied. J. U. JOHNSON 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.