BVA9503072 DOCKET NO. 92-07 320 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE 1. Entitlement to an increased rating for a low back disorder currently evaluated as 10 percent disabling. 2. Entitlement to an additional 10 percent rating for demonstrable deformity of a vertebral body. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. M. Lynch, Associate Counsel INTRODUCTION The veteran's active military service extended from January 1968 to October 1969, from March 1973 to March 1975 and from December 1990 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri which granted service connection for a low back disorder and assigned a 10 percent rating. The case was previously before the Board in October 1993, when it was remanded to the RO for consideration of additional evidence and preparation of a supplemental statement of the case. The requested action has been completed. The Board now proceeds with its review of the appeal. The Board also notes that in December 1992 and April 1993 the veteran filed additional claims for entitlement to service connection for residuals of shell fragment wounds to the knees, tendonitis of the left shoulder, a skin condition, a chronic obstructive lung condition, painful joints and post traumatic stress disorder (PTSD). Entitlement to service connection for these disorders was denied by a rating decision in November 1993. Issues pertaining to these disabilities have not been developed for appellate consideration and are not properly before the Board at this time. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO committed error in denying his claim of entitlement to an increased rating for a low back disorder, to include the fracture of a vertebral body. He asserts that his service-connected disability is more severely disabling than currently evaluated. Specifically, he states that he experiences low back pain which radiates into his left leg, nightly muscle spasms, increasing numbness of his legs, and bi- pedal plantar tingling. Consequently, he contends that he is entitled to an increased disability evaluation. 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 supports entitlement to a 20 percent rating, but no higher, for a low back disorder and is against entitlement to an additional 10 percent rating for demonstrable deformity of a vertebral body. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. The veteran's back disorder is manifested by complaints of low back pain which radiate into the lower extremities, increasing numbness of the legs, and bi-pedal plantar tingling. There is evidence of minimal degenerative changes of the spine and minimal anterior wedging or Schmorl's nodules at T-12 and L- 1, possibly developmental in nature. 3. The veteran's service-connected low back disorder is chiefly reflective of painful motion, radiating pain and sensory changes and is more appropriately equivalent to a moderate disc syndrome. 4. The veteran's service connected disability does not present an exceptional or unusual disability picture rendering impracticable the application of the regular schedular standards that would have warranted referral of the case to the Director of the Compensation and Pension Service. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating, but no higher, for a back disorder have been met. 38 U.S.C.A. §§ 1155 and 5107(a) (West 1991); 38 C.F.R. Part 4, Codes 5292 and 5293 (1994). 2. The criteria for an additional 10 percent rating for demonstrable deformity of a vertebral body have not been met. 38 U.S.C.A. §§ 1155and 5107(a) West 1991); 38 C.F.R. Part 4, Code 5285 (1994) 3. Failure of the RO to consider or document its consideration of an extraschedular rating and the failure to refer the case to the Director of the Compensation and Pension Service is no more than harmless error. 38 C.F.R. § 3.321(b)(1) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is to say that he has presented a claim which is plausible. We are satisfied that VA has assisted the veteran as much as it can in the development of his claim. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). The rating schedule is primarily a guide in the evaluation of disability resulting from all types of disease and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such injuries in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1994). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2 (1994). The veteran's claims folder contains his service medical records, VA medical records, and a VA examination report. Service medical records indicate that in December 1990 the veteran sustained a back injury while lifting a heavy tire. On examination, he reported periodic sharp pain and no numbness. The examiner noted mild limping and increased back pain with various maneuvers, almost too dramatically. The assessment of record was a back strain. He was treated with medication and returned to light duty. On follow-up examination, he reported continued back pain and bi-pedal plantar tingling in the early mornings. The examiner noted that his gait was better, although there was still dramatic grimacing with any motion of the lower back. Due to continuing complaints of pain, the veteran was hospitalized at the U.S. Marine Corp Hospital for evaluation in early January 1991. Upon admission, he continued to complain of similar symptoms as described above. It was noted that his motor and deep tendon reflexes were within normal limits, with the exception of a decrease in sensation over the superior saphenous nerve. Straight leg raising was negative. The veteran was subsequently taken to Keesler Air Force Base for evaluation. On examination, he complained of low back pain from the waist down with radiation into his left upper leg, worse with prolonged standing or sitting. He denied any weakness or numbness. The examiner reported that his gait was normal, although he refused to perform a heel walk on the left side due to complaints of pain. On palpation of the left sacroiliac joint and above, he doubled his legs in pain. Straight leg raise was negative and there were no neurological abnormalities. An x-ray revealed minimal spurring with a loss of joint space between L4- L5 and L5-S1. The examiner's assessment was low back pain and left leg pain with symptoms worse or exaggerated over physical findings of some degenerative changes. The veteran was refused admission to Keesler Air Force Base Hospital and was transferred to the Naval Hospital in Pensacola, Florida. A Medical Board Report was prepared in late January 1991. The veteran reported that he was having significant pain with radiation into the left buttock and left lateral thigh, and that his legs occasionally gave way. Significantly, the examiner noted that he had been seen ambulating comfortably to the orthopedic department prior to the examination and that he presently appeared in greater distress than expected. On examination, he was quite tender over the posterior lumbar area and, in fact, gave way and almost fell on gentle palpation of the lumbar spine. It was noted that he grimaced, complained and almost cried when his legs were raised 45 to 50 degrees off the table. Neurologic stretch signs were absent and he held his left leg rather stiffly. The examiner reported that the ranges of motion of his hips, knees and feet were unremarkable. Examination with respect to motor strength testing was also completely unremarkable. Deep tendon reflexes were absent at the L4 quadriceps on the left. He had brisk reflexes with no pathologic reflex noted elsewhere. The examiner indicated that the veteran demonstrated no myospasm in the lumbar spine. Of note, his lumbar films showed no specific changes. There was a question of a slight decrease in the interdiscal height at L5-S1. The examiner concluded that the veteran demonstrated changes of acute spondylitis with symptomatology grossly exaggerated. There were no hard findings other than the absence of the quadriceps reflex which the examiner thought might have been secondary to the patient's overriding of the examiner on the left. It was recommended that he be admitted to the hospital for conservative treatment. The veteran was re-evaluated upon hospitalization. He was unable to bear full weight on his left heel secondary to pain occurring in his left thigh and reported decreased strength in his legs. He had forward flexion to 30 degrees, extension to 10 degrees, and lateral bending to 10 degrees to the left and right. The examiner noted an area of decreased sensation in the upper left leg on the lateral aspect with tenderness to palpation. Deep tendon reflexes were normal except at the left patella which was absent. There was exquisite tenderness over spinous process of L2 to S1. Strength was 4/5 on the left foot with pain exacerbation. There was positive straight leg raise on the left greater than on the right. There was also some pain with shoulder movement, but the range of motion was unimpaired. He had a full range of motion in the upper back in all directions. Magnetic resonance imaging (MRI) showed very slight desiccation of the L4-L5 disc on a degenerative basis, mild annular bulges at L4-L5 and L5-S1, and Schmorl's nodules involving the inferior end plates of T-12 and L-1 which were described as incidental and benign. There was no evidence of disc herniation and no other abnormalities were noted. On the discharge report, the examiner noted that in view of the normal MRI and other findings, including a normal neurological examination, the veteran's symptoms were felt to be secondary to magnification with a component of manipulation. A psychiatric consultation was obtained during his hospital stay and was of minimal benefit. On follow-up examination in February 1991, the veteran reported that his symptoms had improved and he was feeling much less symptomatic. He also reported that he was able to walk without difficulty but still experienced some pain in his lower back. On follow-up examination in May 1991, the veteran once again reported that his back was somewhat better, although he still complained of pain and inability to do heavy lifting. It was noted that he was discharged from physical therapy for failure to attend, although he may have been attending elsewhere. On examination, another physician noted that he showed marked symptom magnification. He had grimacing, marked trouble sitting up and multiple trigger points. The examiner reported that he had full range of motion of his lumbar spine and pain with rotation of his trunk and with axial compression which was nonanatomic. He had a positive bent leg raise. He had a negative straight leg raise while sitting, but complained of pain on straight leg raise while supine. Neurologic examination found sensation, reflexes and motor strength to be normal throughout. However, the veteran stated that he had decreased sensation bilaterally below the knees in a stocking glove distribution that had persisted since an injury in Vietnam. His x-rays were essentially normal. The impression was lumbar strain with marked functional overlay. The examiner reported that the veteran's condition had improved. It was expected that he would continue to improve and be fit for full duty within two months. After the veteran's period of active service, a VA examination was conducted in November 1991. Complaints noted at the time included nightly muscle spasms and pain, increasing numbness in his legs and the bottom of his feet, accompanied by tingling. He denied any giving way of his legs or obvious weakness. Range of motion of the lumbar spine on forward flexion was to the mid- tibia and approximately 15 to 20 degrees of extension, with both maneuvers reportedly causing significant pain in the lumbar spine. He also had somewhat limited lateral bend of approximately 15 degrees bilaterally. He also had pain with deep palpation of the left buttocks. Motor strength of the lower extremities was normal bilaterally. Sitting straight leg raise testing was also negative. Deep tendon reflexes were possibly mildly diminished at the left knee compared to the right knee. An x-ray of the spine showed minimal degenerative changes and minimal anterior wedging at T-12 and L-1, possibly developmental in nature. No acute changes were otherwise identified. The examiner diagnosed possible herniated nucleus pulposus at L4-L5 by history. Importantly, he did not have the previous MRI findings available for review, which he indicated were necessary in order to exclude disc herniation. In fact, the MRI showed no evidence of a herniated disc. Also noted were sensory changes in the S1 dermatomal distribution of both feet. The examiner noted that, interestingly, the ankle jerk which was specific for S1 was normal bilaterally. There was no muscle atrophy, obvious weakness or clonus. On the basis of these findings, the RO granted service connection for a low back disorder in January 1992 and assigned a 10 percent rating pursuant to Code 5293. When residuals of intervertebral disc syndrome are mild, a 10 percent rating is assigned. The next higher rating, 20 percent, is assigned when intervertebral disc syndrome is moderate, with recurring attacks. A 40 percent rating is provided for severe attacks of disc syndrome with intermitten relief. 38 C.F.R. Part 4, Code 5293 (1994). In the alternative, the veteran may be evaluated under Code 5292, which assigns a 10 percent rating for a slight limitation of motion of the lumbar spine. A 20 percent rating requires limitation of the lumbar spine which is moderate in degree. A 40 percent rating requires severe limitation of motion. 38 C.F.R. Part 4, Code 5292 (1994). 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. 38 C.F.R. § 4.7 (1993). In this particular case, it appears that there is some question as to which level would be applicable. Much of this is due to the veteran's lack of creibility and exaggeration of his complaints. However, the findings from the veteran's medical treatment records which are the most reliable suggest that some of the features of a moderate disc syndrome are present under Code 5293. The Board notes that the veteran's representative has contended that the veteran is entitled to an additional 10 percent due to the demonstrable deformity of a vertebral body. In particular, the representative maintains that the veteran is covered by the phrase "in other cases" contained in 38 C.F.R. Part 4, Code 5285 (1994). Residuals of a fracture of a vertebra may be evaluated under Code 5285 which provides that when residuals of a fracture include cord involvement, require that the veteran be bedridden, or require the use of long leg braces, the residuals are rated as 100 percent disabling. When residuals are without cord involvement and without abnormal mobility requiring a neck brace, the residuals of the fracture will be rated as 60 percent disabling. In other cases, residuals are rated in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of a vertebral body. This note is part of Diagnostic Code 5285 and the phrase "in other cases" refers to those cases that involve a fracture of a vertebral body but are not so severe as to meet the criteria described for a 60 or 100 percent rating. Consequently, there must be evidence of a fracture in order to permit a rating under Code 5285. There have been no medical reports suggesting a fracture. In fact these changes have been described as Schmorl's nodules or wedging and thought to represent a developmental phenomenon not associated with fracture residuals. As the evidence of record does not show that the veteran has sustained a fracture of a vertebra, an additional 10 percent rating for deformity of a vertebral body is not warranted. Also of record are VA outpatient treatment notes dated from March to April 1992. On examination in March 1992, the veteran complained of similar symptoms as described above, as well as decreased grip strength and pain in the cervical spine. Importantly, the examiner reported that he ambulated without problem when not observed, but had an arthralgic gait when he realized he was being watched. He was also able to walk heel toe with coaxing. He had full range of motion of the upper and lower extremities, negative straight leg raise with pain in the back and no radiation, and normal motor strength of the lower extremities bilaterally. Forward flexion was to 40 degrees, extension to 10 degrees, and lateral flexion to 10 degrees to the left and right. Significantly, the examiner noted that he could bend forward from the waist and put on knee high boots with no problems. There was no clonus and his deep tendon reflexes were normal at the knee and ankle joints bilaterally. There was decreased sensation at the knee caps. All dermatomes showed normal sensation and proprioception and vibration sensations were within normal limits. The examiner diagnosed chronic low back pain with a history of a "bulging disc" and probable myofascial back pain with tender joints. On follow-up examination in April 1992, forward flexion had increased to 70 degrees, extension to 20 degrees, and lateral extension to 15 degrees to the left and right. Similarly, he had full range of motion and normal motor strength of the lower extremities. The examiner noted that he had a subjective decrease in sensation around his knees. Otherwise, sensation and deep tendon reflexes were essentially normal. Straight leg raise was once again negative. He was tender to palpation in the lower back. The impression was chronic low back pain with a history of a bulging disc. The veteran was also subsequently seen at the outpatient clinic for entitlement to a clothing allowance, namely, an elastic back brace, in May and June 1992 and in August 1993. There was no evidence of treatment or examination. With the criteria for a higher rating in mind, the Board has carefully reviewed the pertinent medical evidence, including the veteran's medical history. 38 C.F.R. § 4.1 (1994); See Peyton v. Derwinski, 1 Vet.App. 282 (1991). Recent clinical findings with respect to intervertebral disc syndrome are consistent with a moderate disability with recurring attacks, but do not suggest severe involvement. There have been no findings of muscle spasm or decreased muscle strength and degenerative changes of the spine have been described as "minimal". Importantly, the MRI showed no current evidence of disc herniation. It is difficullt to determine the exact level of severity because of seeming inconsistencies in the examination reports. Indeed, as the examiners noted on numerous occasions, the veteran has exaggerated his symptomatology. A comparative review of all the examination reports have shown generally that the veteran has degenerative changes in the lumbar spine, painful motion, radiating pain and some sensory changes. Anything more than this cannot be accepted as credible in view of the examiners' comments. Under Code 5292, the veteran's low back disability would be rated on the basis of limitation of motion. These findings have been equivocal and it appears that the Diagnostic Code for intervertebral disc syndrome used by the RO is more relective of the current symptomatology. The repeated notations by examiners with respect to the veteran's exaggeration of symptoms leave no doubt that the symptomatology is not severe. This lack of credibility on separate examinations calls into question the veteran's credibility concerning the low back examinations that were performed. Under these circumstances, the Board does not find that the record discloses more than a moderate disability under 38 C.F.R. Part 4, Code 5293 (1994) with application of 38 C.F.R. § 4.7. This case does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1)(1994). Any failure of the RO to refer the case to the Director of the Compensation and Pension Service for extraschedular consideration was harmless error. ORDER An increased evaluation to 20 percent, but no higher, for a low back disorder is allowed subject to the governing regulations pertaining to the payment of monetary benefits. Entitlement to an additional 10 percent rating for demonstrable deformity of a verteberal body is denied. JAN DONSBACH Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.