Citation Nr: 0006425 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 94-28 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for chronic low back pain. 2. Entitlement to a compensable rating for residuals of a stress fracture of the pelvis. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The veteran served on active duty from June 1988 to June 1992, including in the Southwest Asia theater of operations during the Persian Gulf War. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana. The veteran currently lives in Missouri and her claims are currently under the jurisdiction of the Jackson, Mississippi Regional Office (RO). The veteran's claims were remanded by the Board for further development in August 1997 and May 1999. By rating action in August 1999 the veteran was denied service connection for degenerative disc disease and she was denied service connection for right hip disability. The Board notes that the record does not currently indicate that the veteran desires to appeal the denial of those claims. Although the issues of entitlement to service connection for multiple disabilities were listed on the title page of the May 1999 Board remand, the veteran has not asserted that these issues have been developed for appellate consideration, nor expressed disagreement with the VA finding of no timely appeal with regard to the issues. As such, they are not for consideration in this appeal. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's service connected chronic low back pain is manifested by no more than moderate limitation of motion of the lumbar spine, including due to pain on use. 3. The veteran's inservice pelvic stress fracture healed completely and she does not experience any current residuals of that injury. CONCLUSIONS OF LAW 1. The criteria for a 20 percent evaluation for chronic low back pain have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5295 (1999). 2. The criteria for a compensable evaluation for residuals of a stress fracture of the pelvis have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5299-5251 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the veteran has presented claims which are plausible. The Board is satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's service-connected disabilities. The Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disabilities at issue, except as outlined below. This appeal stems from a rating decision in February 1993, which granted service connection and a 10 percent rating for chronic low back pain and which granted service connection and a noncompensable rating for residuals of a stress fracture of the pelvis. Service connection for each of these disabilities was made effective from June 28, 1992, the day after discharge from service. The Board notes that separate ratings can be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). On initial VA examination in August 1992 the veteran complained of low back pain with radiation to the right lower extremity. Pain was aggravated by lifting, bending, long standing, and sleep position. Pain improved with sleeping on her side and medication. The veteran reported that the pain was constant and that sometimes she had swelling in her legs after long standing. Examination revealed no deformity, discoloration, edema, tenderness, or scoliosis of the lumbosacral spine. The veteran had 90 degrees of flexion, and the range of motion in the other planes were characterized as "full." Neurologic examination was unremarkable. X-ray examinations of the pelvis and lumbar spine were unremarkable relative to the disabilities at issue. There was no deformity, discoloration, edema or tenderness of the hips. The pertinent diagnoses included chronic low back pain and status post stress fracture to the pelvis. An August 1992 VA outpatient treatment record reveals complaints of increased low back pain and lower extremity edema due to prolonged sitting at work. It was indicated that x-ray examination of the lumbosacral spine revealed mild degenerative joint disease. The diagnosis was low back pain. The veteran was examined at the Spine Institute in September 1992. The veteran complained of back pain with radiation to the right leg. Reportedly, the veteran could bend forward and extend "without a great deal of trouble." She was tender in the area of her low back. Straight leg raising was negative. She had 5/5 strength in the lower extremities. She had symmetric reflexes and intact sensory examination. X-rays of the lumbar spine showed some end plate changes at the lower lumbar spine, but no clear etiology of her problem. VA outpatient treatment records dated from August 1992 reveal treatment for complaints of low back pain. In March and June 1993, the diagnoses were lumbar disc disease. When seen at a private emergency facility in May 1993, the veteran's chief complaint was back pain. She complained the pain was so severe that she could not make it to a VA hospital. She also reported spasms and inflammation. She had good response to intravenous medication. The diagnosis was chronic back pain. A July 1993 VA two-day inpatient hospitalization record indicates that the veteran complained of back and right leg pain. Lumbar myelogram revealed no problems. The diagnosis was lumbar spine degenerative disease. The veteran appeared before a RO hearing officer in February 1994. She testified that she had pain and muscle spasms in her back due to an inservice back injury. She reported pain in her right leg, which she attributed to her back disability. The veteran stated that she had had to quit jobs in construction, day care, and sewing due to her back disability. The veteran testified that she thought that some of her problems were due to her pelvis, but her pelvis was never mentioned when she went to physicians for treatment. On VA orthopedic examination in March 1994, the veteran complained of intermittent numbness and pain below the waist which she attributed to a residual of service-connected pelvic stress fracture. She took a muscle relaxer medication, and medication for pain. Physical examination revealed no atrophy or active spasm of the back. There was no appreciable tenderness to palpation of the paraspinal musculature or spinal processes of the thorocolumbar region. There was minimal tenderness complained of over the sacroiliac joint to direct palpation. Forward flexion was to 45 degrees limited by subjective pain. She could extend 30 degrees with minimal discomfort. Left and right lateral bending were to 20 degrees, each, limited by pain. She could rotate to the right and left, 40 degrees, limited by pain. Sitting and supine straight leg raising testing were negative. There was good stability of the pelvis to applied pressure. There was no area of appreciable tenderness of the pelvis to direct palpation other than the previously mentioned minimal sacroiliac joint tenderness. No abnormal neurologic findings were reported. She had a normal gait. X-ray examination of the lumbar spine was unremarkable. The assessment was subjective chronic low back pain without any radiographic or physical examination evidence of abnormality. The veteran was examined by Jerry Jamison, M.D., in February 1994. The February 1994 record indicates that the veteran had degenerative disc disease of the spine. In March 1994 Dr. Jamison indicated that the veteran had decreased range of motion of the lumbar spine. The veteran was noted to have right flank region muscle spasm. The diagnosis was L5-S1 disc disease. In September 1995 the veteran reported that lifting and pulling at work worsened her chronic back pain. Dr. Jamison's impression was right sacroiliitis. A November 1994 record from Clark Memorial Hospital indicates that x-rays of the veteran's lumbosacral spine were normal. The veteran underwent a general VA medical examination in November 1995 when it was noted she was employed as a welder. She was on medication, including for pain. Her reported complaints included continuous back pain. On physical examination, her gait was normal. Range of motion of the spine was noted as 75 degrees of forward flexion, extension to 10 degrees, and lateral bending to the right and left of 30 degrees. Muscle strength was 5/5. The reported diagnoses included degenerative disc disease of L5-S1, and history of pelvic fracture in 1988. The veteran was treated at an emergency room in April 1996 due to chest pain. On examination, the veteran's back was stable, nontender, and there was no costovertebral angle spinal tenderness. A September 1996 record from her employer's physician indicates that the veteran had degenerative disc disease and mechanical low back pain. The veteran was examined by F.G. Eddingfield, D.C., in November 1996. The veteran complained of persistent back discomfort and pain. She reported daily pain, worse in the morning, with gradual overall decrease in level of pain during the course of the day. Pain was aggravated by bending, lifting, sudden movements, increased physical activity, getting in and out of an automobile, as well as putting on her socks and shoes. The veteran's complaints included constant progressive mild to moderate dull aching lower back pain with stiffness and severe sharp episodes. She also complained of intermittent pins and needles sensation in the legs. On physical examination, the veteran moved in a guarded manner. Distress was apparent while performing required activities of the orthopedic evaluation. Minor sign was noted. Palpation of the lumbopelvic region revealed mild to moderate tenderness and spasm of paravertebral musculature bilaterally, with hypertrophy predominating on the left. Point tenderness was also noted at the L3-L4, L4-L5 and L5-S1 motor units along the mid line. Digital lumbosacral range of motion studies revealed non-uniform loss of range of motion. Dr. Eddingfield took multiple range of motion readings. True lumbar flexion was from 45/60 degrees, extension was from 13/25 degrees, right lateral flexion was from 15/25 degrees, and left lateral flexion was from 20/25 degrees. There was pain and stiffness noted at the limit of all ranges of reduced motion. Orthopedic tests reproduced localized lower back pain with no significant radicular symptoms into the lower extremities. Pinwheel sensory evaluation of the lower extremities revealed decreased dermatomal sensory function associated with the S1 nerve root on the right. Motor function in the lower extremities was strong and symmetrical bilaterally. Deep tendon reflexes were brisk and symmetrical bilaterally. The primary diagnosis was mechanical back pain. The secondary diagnoses included sub-acute exacerbation of chronic lumbosacral sprain/strain, persistent lumbosacral myofascial pain syndrome, and lumbosacral segmental dysfunction with adhesive facet capsulitis. Dr. Eddingfield stated that the veteran's condition was chronic, stationary and not likely to improve substantially. He noted that persistent mechanical problems resulting in recurrent subjective exacerbation and remission of lower back pain were to be expected for which conservative care was indicated. He further noted that accelerated degeneration of intervertebral articulations was to be expected. A February 1998 letter from Edward S. Hyman, M.D., indicates that he was treating the veteran for chronic indolent bacteriuria. Dr. Hyman further stated that the veteran had longstanding, painful osteoarthritis of her lower spine which impeded her work effort. The veteran was afforded a VA examination in February 1998. She reported that her low back pain had been essentially unremitting and primarily mechanical in nature. She complained of back pain worse with activity and somewhat relieved with rest. She indicated that her back pain was related to weather changes. The veteran reported radiation to the posterior aspect of her right leg to the knee. She described her back pain as much more significant than her leg pain. The veteran had no frank bowel or bladder complaints related to neurologic symptomatology. She was currently employed as a heavy welder and continued to work despite her back pain. The veteran had seen multiple physicians and chiropractors since that time. She had had a lumbar myelogram which showed some mild degenerative disc disease and possible subarachnoid cyst, but no evidence of neural compression. On examination the veteran was in no acute distress. She had a tender mid thoracic and lumbosacral spine to palpation. Sagittal contours were normal. Neurological examination was normal. Stretch signs were negative. Range of motion findings relative to the lumbar spine were not reported. X-rays revealed a normal lumbosacral spine. The assessment included mechanical low back pain with minimal degenerative changes on x-ray. On VA examination in August 1999 the veteran was noted to be unemployed. She complained of intermittent low back pain and intermittent right groin pain. She reported that her groin pain seemed to be aggravated by vacuuming or mowing grass. The veteran could walk half a mile without difficulty. Objectively, the veteran had a normal gait. Examination revealed lumbar spine forward flexion of 50 degrees. Extension was to 25 degrees. Right and left lateral bending were each to 25 degrees. There was no tenderness over the spinous processes. Straight leg raising on the right caused low back pain at 70 degrees. Straight leg raising on the left was painless to 90 degrees. Deep tendon reflexes were active and equal in the knees and ankles bilaterally. The veteran could walk on her heels and toes without difficulty. She could squat and arise from a squatting position without assistance. The examiner could detect no motor weakness or sensory deficit. X-rays of the pelvis revealed no bony deformity. It was opined that any fracture had healed in anatomic position and alignment. There was no narrowing of the articular cartilage in either hip or in either sacroiliac joint. Anterior-posterior and frogleg lateral views of the right hip revealed no bony deformity, narrowing of the articular cartilage, osteophyte formation, or subchondral sclerosis. X-rays of the lumbar spine revealed no residual bony deformity, narrowing of the disc space or osteophyte formation. The impression was status post healed undisplaced fracture of the right pelvis. The examiner stated that there was no osteoarthritis of the right hip. Eleven years had passed since her fracture. If the veteran were going to develop avascular necrosis or osteoarthritis there would have been definite x-ray manifestation of it by that time. On physical and x-ray examination of the veteran the examiner could find no objective evidence or organic pathology to explain the veteran's low back pain. The veteran had no measurable weakness in her back or right hip. The examiner noted that the veteran had no loss of motion due to weakness, fatigue or incoordination. He further stated that it was not feasible to estimate the additional range of motion lost due to pain on use or during a flare up. I. Low Back Pain The veteran asserts that she is entitled to a rating in excess of 10 percent for her service-connected low back pain. Limitation of motion of the lumbar spine warrants a 10 percent evaluation if it is slight, 20 percent if it is moderate or 40 percent if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5292. Upon consideration of the medical evidence of record, the Board notes that on VA examination in August 1999 the veteran had only 50 degrees of forward flexion of the lumbar spine. The Board further notes that Dr. Eddingfield found the veteran to have lumbar flexion of 45/60 degrees when he examined the veteran in November 1996. These findings show that the limitation of motion of the veteran's lumbar spine was approaching moderate limitation. The record does show frequent complaints and treatment for low back pain since discharge from service. The Board has also considered the disability factors set forth in 38 C.F.R. §§ 4.40, 4.45, to include functional loss due to pain on use or during flare- ups, incoordination, weakened movement and excess fatigability on use, in determining the extent of limitation of motion. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The veteran has complained of increased back pain on walking, standing, lifting and other activities. Considering the veteran's complaints of pain on use and flare-ups, the Board finds that the low back disability more nearly meets the requirements for a 20 percent rating for moderate limitation of motion of the lumbar spine. The range of motion manifested by the veteran on VA examinations does not justify an evaluation in excess of 20 percent. The Board further notes that the August 1999 VA examiner stated that the veteran did not have any loss of lumbar spine motion due to weakness, fatigue or incoordination. He noted that functional ability might be compromised temporarily during acute flare-ups but that it was not feasible to estimate the additional range of motion lost due to pain on use or during a flare up. Diagnostic Code 5295 provides ratings for lumbosacral strain based on the severity of the symptomatology. A 20 percent rating is assignable when there is muscle spasm on extreme forward bending, or loss of lateral spine motion, unilateral, in the standing position. A 40 percent rating is assignable when there is severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in a 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. 38 C.F.R. § 4.71a, Diagnostic Code 5295. The veteran does not meet the criteria for a 40 percent rating for lumbosacral strain. The record does reveal that the veteran has experienced low back muscle spasm. However, the veteran has not been shown to have listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in a standing position or other symptoms which might warrant a higher 40 percent evaluation under Diagnostic Code 5295. While the veteran has complained of pain into her right leg, the veteran does not have service connection in effect for any neurological disability. Consequently, the schedular criteria for intervertebral disc syndrome is not for application in this case. Since the post service medical records have not shown the veteran to meet any of the criteria for a rating in excess of 20 percent at any time since discharge from service, staged ratings for the veteran's low back disability are not warranted. See Fenderson. The Board has considered whether the claim should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (1999). The Board notes that the veteran has not required frequent hospitalization for chronic low back pain. While the veteran has claimed that her chronic low back pain has caused her to lose each of her jobs, this is not shown by the record. The record shows that the veteran missed many days of work at her last job as a welder due to numerous other non service-connected medical problems, not due to her service-connected back disability. The record further indicates that the veteran resigned from her job in May 1998. The record reflects that the symptoms that can be attributed to the veteran's chronic low back pain are those contemplated under the schedular criteria. In sum, there is no indication that the veteran's individual industrial impairment from the chronic low back pain would be in excess of that contemplated by the currently assigned evaluation of 20 percent. Therefore, the Board has determined that referral of the claim for extra-schedular consideration is not in order. II. Pelvic Stress Fracture Residuals The veteran seeks a compensable rating for residuals of a pelvic stress fracture. While the service medical records do show complaints and treatment for the inservice fracture, the post service treatment records are silent to complaints or treatments specifically attributed to the veteran's inservice pelvic stress fracture. The RO has rated the appellant's residuals of a stress fracture, by analogy, under diagnostic code 5299-5251 based on limitation of motion of the hip. Under diagnostic code 5251, extension of the thigh limited to 5 degrees may be assigned a 10 percent evaluation. The medical evidence of record reveals that the veteran has full or almost full range of motion of the right thigh. More significant, however, no limitation of motion of the right hip has been noted as a residual of the service-connected pelvic stress fracture. The veteran did complain of right hip pain on VA examination in February 1998. X-rays revealed very minor degenerative hip disease. However, as noted above, service connection is not in effect for a right hip disability and the record does not indicate that any current right hip pain is related to the veteran's inservice pelvic stress fracture. Since the post service medical records are silent to any residuals of a pelvic stress fracture, there is no basis for which a compensable rating may be assigned. Since the post service medical records have not shown the veteran to have had any residuals of a pelvic stress fracture at any time since discharge from service, staged compensable ratings for the veteran's residuals of a pelvic stress fracture are not warranted. See Fenderson. ORDER Entitlement to a 20 percent evaluation for chronic low back pain is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to a compensable rating for residuals of a stress fracture of the pelvis is denied. U. R. POWELL Member, Board of Veterans' Appeals