Citation Nr: 0005300 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-11 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased disability rating for lumbar spine spondylolisthesis with spondylosis, currently rated as 40 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jonathan B. Kramer, Associate Counsel INTRODUCTION The veteran had active duty service from February 1981 to June 1982. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 1996 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the veteran's claim for a disability rating in excess of 20 percent for his service-connected lumbar spine disability. In April 1999, the Board REMANDED the case to the RO for additional development. Subsequent to the April 1999 Board REMAND and during the pendency of this appeal, a May 1999 RO determination increased the veteran's disability rating for his service- connected lumbar spine disability from 20 percent to 40 percent. Inasmuch as the veteran has continued to express dissatisfaction with this disability rating, has otherwise not withdrawn his appeal, and in light of the fact that the maximum schedular disability rating has not been assigned to date, the appeal continues. See AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDING OF FACT The veteran's lumbar spine disability is not shown to be productive of ankylosis or pronounced intervertebral disc syndrome characterized by persistent symptoms. CONCLUSION OF LAW The schedular criteria for a disability rating in excess of 40 percent for lumbar spine spondylolisthesis with spondylosis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5293, 5295 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION A person who submits a claim for benefits under a law administered by VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991). The United States Court of Appeals for Veterans claims (Court) has held that an allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for an increased rating is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). Once a claimant has presented a well-grounded claim, VA has a duty to assist the claimant in developing facts that are pertinent to the claim. See 38 U.S.C.A. § 5107(a). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for an equitable resolution of the issues on appeal has been obtained. The evidence includes the following: service medical records; VA examination reports, radiology reports, and clinical records; private medical records; and the veteran's hearing testimony, and written statements. The Board does not know of any additional relevant evidence that is available. Therefore, no further assistance to the veteran with the development of evidence is required. Pursuant to a May 1985 Board decision, service connection for a lumbar spine disability was established. A November 1985 RO rating decision assigned a 10 percent disability rating, effective September 1985. In accordance with a March 1987 rating decision, the veteran's disability rating was increased to 20 percent, effective June 1986. As previously noted, during the course of this appeal the veteran's disability was increased to 40 percent, effective November 1995, pursuant to a May 1999 RO determination. Under the laws administered by VA, disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, 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. See 38 C.F.R. § 4.7 (1999) A September 1995 medical record from a private physician, David H. McCord, M.D., recounted the veteran's complaints of low back pain, limitation of function, and leg pain. Dr. McCord noted that the veteran was in discomfort and had an antalgic gait. An October 1995 private magnetic resonance imaging (MRI) report, prepared by Kurt V. Berger, M.D., concluded that there was L5-S1 mild grade I anterior spondylolisthesis with bilateral spondylosis that leads to minimal central and mild bilateral foraminal stenosis, and L4-5 moderate disc degeneration without herniation with mild bilateral inferior foraminal stenosis. A November 1995 private operation report, prepared by Melvin D. Law, M.D., explained the details of a lumbar discography performed on the veteran to treat his lumbar spine disability. A December 1995 report from Dr. McCord noted that the veteran continued to complain of significant symptoms that had been causing a significant deterioration in his quality of life. A July 1996 VA spine examination report noted the veteran's complains of low back pain, cramps, and numbness down the left leg. Objectively, there was no abnormality in posture or gait and heel toe walk was performed without difficulty, but there was tightness of the paralumbar musculature and tenderness in the midline over the lumbosacral area. Forward bending was to 38 degrees, with pain. Backward extension was to 26 degrees, right and left lateral flexion was to 20 degrees, left rotation was to 30 degrees, while right rotation was to 20 degrees. X-rays of the lumbar spine were noted to have been reviewed. The diagnosis was spondylolisthesis of L5 and S1 and retrospondylolisthesis of L4 and L5. A March 1998 private medical record showing the results of a spine exam revealed range of the motion of the low back to be painful and limited as follows: forward flexion to 38 degrees; backward extension to 9 degrees; right lateral flexion to 29 degrees; left lateral flexion to 21 degrees; right rotation to 23 degrees; and left rotation to 22 degrees. Straight leg raise was positive on the left, while well leg raise was positive on the right. The veteran also was noted to have antalgic gait, and there were positive left Bechlerew's and Valsalva's signs. Sick call records from the veteran's employer reveal that the veteran called in sick, primarily for back problems, approximately once or twice a month for the period January 1998 to February 1999. Private treatment/physical therapy records for the period February 1999 to July 1999 show that the veteran suffered from numerous symptoms to varying degrees of severity affecting the low back and lower extremities, including pain, spasm, soreness, tenderness, antalgia, sciatica, and weakness. A July 1999 private radiology report, prepared by Wayne Schoettle, D.O., revealed an impression of posterior bulging of the annulus at the L4-L5 vertebral level extending slightly to the left of the midline, and degenerative disc disease of L4-L5, L5-S1. A July 1999 VA spine examination report stated that the veteran complained of low back pain with weakness, stiffness, fatigue, and lack of endurance, which caused him to miss one day of work a week due to flare-ups. The veteran noted he worked as a substance abuse counselor, and that he was able to drive, dress, and bathe himself. Objectively, there was not very much pain exhibited upon motion, and there was no evidence of spasm or weakness. There were no postural abnormalities, fixed deformities, or neurological deformities, and the musculature of the back was described as normal. The veteran undressed, dressed, and ambulated without difficulty. Range of motion of the cervical and thoracic spine were normal. The lumbar spine range of motion was as follows: forward flexion from 35 to 40 degrees; backward extension to 20 degrees; lateral flexion to 30 degrees; and rotation to 35 degrees. Romberg and straight leg raising tests were negative. The veteran was able to squat down and rise-up with the use of his hands on the floor to stabilize himself. The examiner noted that a previous MRI report and contemporaneous X-ray reports were reviewed. The diagnosis was low back pain, probably secondary to spondylolisthesis and some disc bulging at L4-L5. The examiner opined that the veteran did not have significant enough pain in the low back to decrease function, except in cases where he underwent prolonged sitting or standing. Moreover, the examiner commented that range of motion was good and was not accompanied by distress, evident discomfort or pain, or weakened movement. An August 1999 corollary to the above summarized July 1999 VA examination report, which addressed certain questions contained in the Board's April 1999 REMAND, stated the following: that there was no correlation between lower back pain and the veteran's thoracic and cervical spine pain; that there was significant lower back pain due to his diagnosed spondylolisthesis and spondylosis; and that there was no evidence of significant thoracic or cervical spine disabilities, but to the extent that such disabilities were present, the lumbar spine disability would not cause the thoracic or cervical spine disabilities. The remaining evidence consists of the veteran's variously dated written statements, RO April 1997 hearing testimony, and February 1999 videoconference testimony. Of particular relevance is the veteran's November 1999 letter, in which he contends that he is entitled to a disability rating in excess of 40 percent. The Board will address the specific concerns of the veteran in regard to his contentions below. First, the veteran contends that he was not afforded due process of law because the RO increased the veteran's disability rating for his lumbar spine disability to 40 percent in May 1999 without affording him enough time to present new evidence and prior to the conduction of the orthopedic examination ordered by the Board in its April 1999 REMAND. The Board observes that the veteran was not prejudiced by the RO's actions, as all of the directives contained in the Board's REMAND were undertaken prior to the return of the case to the Board, subsequent to the RO's August 1999 and October 1999 Supplemental Statements of the Case. The fact that the RO rendered a determination in May 1999 increasing the veteran's disability rating prior to completing the additional development requested by the Board only served to grant the veteran a benefit faster than he would have otherwise received it. Moreover, the fact that the RO denied an additional increase in his disability rating after completion of the additional development as outlined in the REMAND, but prior to forwarding the case to the Board, does not, in and of itself, warrant any remedial action by the Board or the RO. Turning to the issue of whether the veteran is entitled to an increased disability rating, the Board notes that the his lumbar spine disability is currently rated as 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5293 and 5295, which provides the guidelines for evaluating intervertebral disc syndrome and lumbosacral strain. The only higher evaluation under those Diagnostic Codes is a 60 percent evaluation under Diagnostic Code 5293 which is appropriate for pronounced intervertebral disc syndrome, characterized by persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. Although the veteran claims that the medical evidence shows that the severity of his symptoms are deserving of a disability rating in excess of 40 percent, particularly with regard to symptomatology associated with intervertebral disc syndrome, the Board finds that such symptomatology only intermittently becomes severe. Indeed, the most recent VA examination report revealed that there was a lack of neurological symptomatology, spasm, functional limitation, or pain on motion. And although contemporaneous and prior medical records do show that the veteran has had some sciatica or pain down the left side, objective observation of other neurological findings such as tingling, numbness, or absent ankle jerk do not appear in the record. Moreover, the medical record consistently reflects that the veteran's symptoms of pain, discomfort, spasm, limitation of motion, and functional limitation varies and only becomes exacerbated from time to time. Indeed, the evidence submitted by the veteran that he incurred sick leave from work once or twice a month tends to support the fact that his symptoms only temporarily increases in severity from time to time. Thus, the veteran's symptomatology more closely approximates the criteria for a 40 percent disability rating consistent with severe symptoms, characterized by recurring attacks with intermittent relief. The Board has also considered other Diagnostic Codes relevant to the veteran's disorder that could provide him with a higher disability rating. Although the medical evidence demonstrates that the veteran suffers from severe limitation of motion of the lumbar spine, the maximum disability rating permitted under 38 C.F.R. § 4.71a, Diagnostic Code 5292, for severe limitation of motion of the lumbar spine, is 40 percent. The medical evidence also demonstrates that veteran's lumbar spine disability manifests certain symptomatology consistent with lumbosacral strain, such as marked limitation of forward bending, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility or forced motion, which is listed as the diagnostic criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5295. Under this Diagnostic Code, however, the maximum disability rating that may be assigned for such symptoms is 40 percent. Diagnostic Code 5289, is also relevant as it is used for rating ankylosis of the lumbar spine. Under this Diagnostic Code, a 50 percent disability rating is for application when there is unfavorable ankylosis, while a 40 percent disability rating is applicable for favorable ankylosis. However, the medical evidence is not indicative of a finding for ankylosis. Therefore, increasing the veteran's disability rating on the basis of ankylosis is unwarranted. In the context of the application of alternative Diagnostic Codes, the veteran contends that, supposing he manifests symptoms of intervertebral disc syndrome under Diagnostic Code 5293 and lumbosacral strain under Diagnostic Code 5295 sufficient to afford the him a 40 percent disability rating under either code, as set forth above, he should be awarded a disability rating that reflects the combination of a 40 percent disability rating from each Code. In response, the Board notes that in the case of Esteban v. Brown, 6 Vet. App. 259 (1994), the Court noted the usual rule that, except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease or entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25. It also noted the exception, which prohibits pyramiding at 38 C.F.R. § 4.14. This provides that evaluation of the "same disability" or the "same manifestation" is to be avoided. In balancing these two provisions of the Rating Schedule, the Court held that the critical element for allowing separate evaluations would be that none of the symptomatology from a single disability would be duplicative or overlapping. Esteban at 261. Here, the veteran's lumbar spine disability results in overlapping symptomatology that can be rated under either 5293 or 5295, or even Diagnostic Code 5292, despite the fact that the medical evidence demonstrates that the veteran's diagnosis over the years has consistently been lumbar spine spondylolisthesis with spondylosis, which is consistent with intervertebral disc syndrome. Although intervertebral disc syndrome and lumbosacral strain are separate and distinct disabilities, the fact of the matter is that the criteria for each do overlap, and, in this case, one single disability is resulting in manifestations that are included in both codes. Thus, to the extent the veteran exhibits symptomatology consistent with lumbosacral strain, the underlying disability can only be attributed to intervertebral disc syndrome. The purpose in affording a veteran the application of an alternative code is to apply the benefit of the doubt to award him a higher disability rating if possible. The veteran also contends that he suffers from cervical and thoracic spine disabilities secondary to his lumbar spine disability, despite the reports prepared in July 1999 and August 1999 by the VA examiner that expressly found no relationship between any thoracic or cervical spine disabilities and his lumbar spine disability. There is no medical evidence in the record to support the veteran's claim that his lumbar spine disability causes any cervical or thoracic spine symptomatology or disabilities. The veteran further contends that the July 1999 VA examination was inadequate. In essence, he claims that the examiner did not take enough time or care in performing the examination and taking into account his symptoms or medical records. The veteran additionally maintains that the evidence of record prior to the July 1999 VA examination should be enough, in and of itself, to afford him a disability rating in excess of 40 percent. Although the Board finds the July 1999 examination adequate, in that it was generally consistent with the parameters outlined in the April 1999 REMAND, assuming, without deciding, that the examination was inadequate for the purpose of evaluating the current extent of the severity of the veteran's lumbar spine disability, the other medical records in the claims file, including recent records dated during the period February 1999 to July 1999, do not show that the veteran's symptoms were pronounced. As discussed earlier in this decision, the veteran's symptoms are severe, characterized by recurring attacks with intermittent relief. Therefore, the Board concludes that the disability picture presented by the veteran satisfies the criteria for 40 percent disability rating under Code 5295, as it does under 5293, but falls short of meeting the criteria for 60 percent. The severity of the neurological findings or manifestations are not what one might consider as pronounced as contrasted with severe. In reaching this decision, the Board acknowledges that where functional loss is alleged due to pain on motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 must be considered in addition to the schedular criteria. DeLuca v. Brown, 8 Vet. App. 202, 207-208 (1995). Although there is objective evidence of incoordination, excess fatigability, and painful movement, the 40 percent rating clearly covers the findings and pathology in the veteran's case. Indeed, with out those clinical findings, a 40 percent evaluation might not be warranted. Also in reaching this decision the Board has also considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Board concludes that a disability in excess of 40 percent is not warranted. The Board further finds, as did the RO, that the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that the veteran's lumbar spine disability has not resulted in marked interference with his employment, nor have frequent periods of hospitalization been necessary. While the veteran disability has caused some interference with employment, as documented by the veteran, the rating schedule and 40 percent evaluation assigned contemplate impairment of earning capacity. Therefore, the criteria required for submission concerning the assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) have not been met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A disability rating in excess of 40 percent for lumbar spine spondylolisthesis with spondylosis denied. RAYMOND F. FERNER Acting Member, Board of Veterans' Appeals