BVA9505587 DOCKET NO. 93-12 884 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to an increased rating for post-operative residuals of a low back disorder, currently rated as 40 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Associate Counsel INTRODUCTION The veteran served on active duty from October 1942 to February 1946. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse rating action by the Fort Harrison, Montana, Regional Office (hereinafter RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that the currently assigned 40 percent rating for his back disorder does not adequately reflect the severity of this disability. He has described continual pain radiating from his lower back into his legs and associated numbness and "tingling." As a result, the veteran contends his physical activities have been severely limited. 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 the veteran's claim. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Pronounced symptoms of intervertebral disc syndrome are not shown. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for post- operative residuals of a low back disorder are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DC) 5003, 5292, 5293, 5295 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran has presented sufficient evidence to conclude that his claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled as there is no indication that there are other records available that would be pertinent to the veteran's appeal and noting the conclusion by the veteran's representative in his May 1994 informal hearing presentation before the Board that "sufficient development has been accomplished" given the fact that the veteran had been afforded additional examinations. In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. Moderate limitation of lumbar motion warrants a 20 percent disability rating; severe limitation of lumbar motion warrants a 40 percent disability rating. 38 C.F.R. § 4.71a, DC 5292. Severe recurring attacks of intervertebral disc syndrome with intermittent relief warrant a 40 percent disability rating. Pronounced intervertebral disc syndrome manifested by 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 warrants a 60 percent disability rating. 38 C.F.R. § 4.71a, DC 5293. Severe symptoms of lumbosacral strain warrant a 40 percent disability rating. 38 C.F.R. § 4.71a, DC 5295. The following is a summary of the relevant evidence of record. The service medical record included numerous references for back pain which the veteran stated was the result of being crushed between two girders of a "Bailey Bridge." The in-service assessments included lumbar myofascitis, low back sprain, spondylolysis and sacralization. Hematuria associated with the back pain was also reported. Also of record during service were assessments that at least a portion of the veteran's back disorder was congenital in nature and opinions that the veteran was exaggerating back symptoms. There were no objective back findings shown on the February 1946 separation examination. After service, an April 1965 VA examination of the veteran's back was negative except for mild tenderness in the lumbar region, and it was the opinion of the examiner that the veteran may have been exaggerating symptoms. X-rays of the lumbar spine were entirely negative. The examiner concluded that the veteran 's principal difficulty was chronic prostatitis, and his initial assessment of the veteran's back disorder was that he may have had a congenital sacralization of L5 on S1. However, his final diagnosis was chronic lumbosacral strain. An August 1965 rating decision established service connection for lumbosacral strain. A noncompensable evaluation was assigned. The rating for this disability was increased to 20 percent by a July 1975 rating decision after a June 1975 VA examination showed tenderness and muscles spasms in the low back with some limitation of normal lumbar motion. The rating was further increased to 40 percent by a May 1979 rating decision after a report from a March 1979 VA orthopedic examination indicated the veteran had undergone a laminectomy at L2-L3 in July 1978 and that the veteran's service-connected lumbar strain probably contributed to his arthritis. After documentation of the laminectomy in the form of private clinical records dated in June and July 1978 was received, a temporary 100 percent evaluation was assigned under the provisions of 38 C.F.R. § 4.30, effective from June 29, 1978, to October 31 ,1978. The 40 percent rating was continued thereafter, and was confirmed by a September 1982 Board decision. The next event of relevance is that the veteran was admitted to a VA medical facility in February 1985. During this hospitalization, X-rays showed mild spondylosis of the lumbar spine with increased lordotic curvature and degenerative changes at the facets at L5 and S1. Also shown was spina bifida occulta at S1. A CAT scan showed a suspected herniated disc centrally at L4-L5, possibly compressing the L5-S1 "loop"; previous laminectomy and callous formation on the right side of L3-L4 and degenerative changes of the facet joints at all levels. The veteran was referred for treatment for his back disorder in the physical therapy clinic and was discharged after approximately a one month stay. A temporary 100 percent disability rating was assigned under the provisions of 38 C.F.R. § 4.29, and the 40 percent rating was continued effective April 1, 1985. The 40 percent rating has been confirmed and continued to the present time. The veteran was admitted for further inpatient treatment at another VA medical facility in late March 1985. Shown at that time was left lower extremity radiculopathy. A myelogram showed a possible bulging disc, but this finding was said to be inconsistent with those from the veteran's physical examination. The veteran was given a TENS unit with follow up treatment in the neurosurgery clinic scheduled. After using the TENS unit for one night, the veteran described nearly complete relief of his back symptoms resulting from his use of the unit, and he was discharged from the hospital approximately one week after admission. The veteran was admitted to a VA medical facility in June 1987 complaining about worsening lower back pain radiating down both lower extremities, especially the right side. The assessment was herniated intravertebral disc syndrome, chronic, recurrent, with recent flare up. Treatment included bed rest, local heat, Motrin and physical therapy. The veteran's condition improved, and he was released from this facility approximately 9 days after he was admitted. A July 1990 VA outpatient treatment record showed treatment in a physical therapy clinic for the veteran's back disorder and a September 1991 VA outpatient record showed the veteran continuing to report back pain which radiated down the right leg. The veteran testified at his October 1992 hearing that he has almost continual severe pain that radiates from his lower spine to his legs, often accompanied by a "tingling" and numbing sensation. According to the veteran, this pain has severely limited his physical activity. On occasion, the left leg completely "gave out" according to the veteran. The veteran testified that he takes sleeping pills because the pain is so severe that it wakes him up at night. He also reported taking medication continually to alleviate the back pain. Spasms were reported and upon observing the veteran move through a range of motion study, the hearing officer reported that the veteran flexed forward to 45 degrees and extended backwards to 5 degrees. Bending to the right was observable to 15 degrees and bending to the left was measured at 5 degrees. Fee-basis orthopedic and neurologic examinations were afforded to the veteran in December 1992. The orthopedic examination showed lumbar flexion to 60 degrees, 0 degrees of extension, 10 degrees of flexion to the left and 20 degrees of flexion to the right. The straight leg raising test was slightly positive on the right. X-rays showed slight narrowing at the L2-L3 and L3-L4 interspaces. Fairly significant degenerative changes were noted at the posterior facet joints in the lower lumbar area. The impression was degenerative disc disease at L2-L3 and L3-L4; status post herniated disc at L4-L5; moderate degenerative changes compatible with the veteran's age and generalized axial osteoporosis. The December 1992 neurological examination showed flexion and extension of the lumbar spine to be 60 percent of normal with rotation about 75 percent of normal. Flexion to both sides was shown to be normal. The neurological examination was normal and the examiner, after reviewing the clinical history contained in the claims file involving the veteran's back from 1942 to 1992, concluded, in essence, that there had been no substantial change in the severity of the veteran's back disorder unrelated to the natural aging process. In evaluating the severity of the veteran's service connected back disorder, the Board notes that although the relevant clinical history, as summarized above, will be considered, it will rely principally on the findings from the two most recent examinations conducted in 1992. Francisco v. Brown, 7 Vet.App. 55 (1994). Applying DC 5292, the Board notes that the highest evaluation assignable under this provision is 40 percent. Thus, entitlement to a rating in excess of 40 percent for any arthritic changes and associated limitation of motion of the veteran's back under DC 5003-5292 is not warranted. Similarly, as the highest assignable rating for lumbosacral strain under DC 5292 is 40 percent, a higher rating under this diagnostic code is not warranted. While DC 5293 provides a 60 percent evaluation for pronounced symptoms of intervertebral disc syndrome, such findings are not shown here as the December 1992 neurologic examination was entirely negative. Moreover, the clinical evidence of record indicates that when the veteran was suffering from especially severe back symptoms, treatment afforded to the veteran during his hospitalizations, to include medication, physical therapy, bed rest, and the provision of a TENS unit, substantially relieved the veteran's symptoms. Thus, it cannot be said that the there has been "little intermittent relief" of symptoms so as to warrant a 60 percent evaluation under DC 5293. This "negative" objective clinical evidence outweighs the unsupported subjective "positive" evidence contained in the veteran's oral and written contentions alleging that "tingling" and numbness associated with his back disorder is of such severity as to warrant a higher disability rating. Therefore, because the "negative" evidence in this case outweighs the "positive" evidence, the claim for an increased rating under the provisions of the rating code must be denied. Gilbert, 1 Vet. App. at 49. 38 C.F.R. § 3.321(b)(1) provides that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service-connected disabilities, an extraschedular evaluation will be assigned. However, neither frequent hospitalization nor marked interference with employment due to the veteran's service-connected back disorder is demonstrated. In this regard, the Board notes that the veteran has not been hospitalized for treatment of his back disorder since June 1987, and there is no indication that further inpatient treatment for the veteran's back disorder is indicated or is being contemplated. Therefore, an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER Entitlement to an increased rating for post-operative residuals of a low back disorder, currently rated as 40 percent disabling, is denied. HOLLY E. MOEHLMANN 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.