Citation Nr: 0002437 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 96-24 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased evaluation in excess of 40 percent for low back strain. REPRESENTATION Appellant represented by: Herbert T. Schwartz, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Z. Jones, Associate Counsel INTRODUCTION The veteran served on active duty from August 1953 to August 1957. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a May 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted an increased evaluation for the service-connected low back strain to 20 percent disabling. In January 1997, a personal hearing was held at the RO, and subsequent to this hearing, the hearing officer increased the disability evaluation for the service-connected low back strain to 40 percent disabling. In a decision dated in February 1998, the Board denied the veteran's claim for an increased evaluation in excess of 40 percent for low back strain. The veteran duly appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) (formerly known as the United States Court of Veterans Appeal). In March 1999, the Court granted a joint motion for remand and to stay further proceedings, and vacated the Board's decision. Hannah v. West, U.S. Vet.App. No. 98-984 (March 9, 1999). The Court then remanded the case for compliance with the instructions contained in the joint motion for remand. A copy of the court order and a copy of the joint motion for remand have been filed in the veteran's claims folder. This decision is rendered by the Board in response to the joint motion for remand. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The evidence of record shows that the veteran's service- connected low back strain is productive of no more than severe impairment. CONCLUSION OF LAW The criteria for an increased evaluation in excess of 40 percent for low back strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107. The Board is also satisfied that all relevant facts have been properly and sufficiently developed, and that no further assistance to the veteran is required to comply with the statutory duty to assist. 38 U.S.C.A. § 5107. Factual Background In an April 1976 rating decision, the RO granted service connection for low back strain, evaluated as noncompensably disabling. The award was based on service medical records as well as reports of VA examinations. In August 1994, the veteran sought an increased rating for his service-connected low back strain. VA and private medical records and statements dated in 1994 and 1995 reflect the following: In July 1994, the veteran reported daily pain with occasional burning in the right buttock. Physical examination revealed full range of motion of the spine. The muscles were supple and deep tendon reflexes were 2+ in the lower extremities. Straight leg raising was negative. There was right buttock tenderness when the hip flexed and to deep palpation in the sacroiliac notch. X-rays of the lumbar spine revealed considerable narrowing of the L4-5 disc, some narrowing of the L3-4 disc, and minimal scoliosis. The assessment was low back pain with right sciatica. The same assessment was noted the following month. In September 1994, X-rays of the low back revealed degenerative changes involving the lumbar spine with osteophyte formation and narrowing of disc spaces. In December 1994, a magnetic resonance imaging (MRI) of the lumbar spine revealed desiccated disc at L3 through L5 levels, which was most marked at L4, narrowing of the canal at L3-L4 and L4-L5 from bulging discs and spurs, and bilateral foraminal narrowing at L4, greater on the left than the right. In a December 1994 statement, a private physical therapist related that the veteran received outpatient treatment from July to August 1994 for low back pain. This treatment consisted of moist heat, ultrasound, electrical stimulation and progression of therapeutic exercises. The therapist noted that on discharge the veteran continued to relate subjective complaints of pain at a level of 2 (based on a pain scale of 0 to 10 with 0 being painfree and 10 severe pain). He did state a significant decrease in radicular leg pain, but continued on an intermittent basis. On physical examination in April 1995, the veteran was neurologically intact with 2+ deep tendon reflexes and 5/5 motor strength. Sensory was intact to pin prick. There was negative straight leg raising bilaterally. Received in May 1995 were treatment records from W.B. a private chiropractor, reflecting treatment for problems associated with the back, including chiropractic manual adjustments to the lumbar spine from December 1994 to May 1995, with improvement shown. The records note regularly occurring moderate to very severe muscle spasms with tenderness to palpation and direct pressure. On May 8, 1995, he was treated with manual adjustments of the lumbar spine and was instructed to continue his home activities which included a walking program. In May 1995, the RO increased the disability evaluation from noncompensable (zero percent) to 20 percent for the veteran's service-connected low back strain. An August 1995 statement from W.B. noted that the veteran had moderate degenerative disc disease at L5 and severe degenerative disc disease at L4, with moderate osteophyte formation at L5 and severe at L4. He had been seen since December 1994 for monthly treatment of lumbar symptoms. A December 1995 VA discharge summary revealed that on motor, coordination, and sensory examination, strength was 5/5 and deep tendon reflexes were 2+. On VA examination in June 1996, the veteran complained of pain and weakness in his thoracolumbar spine. He indicated that at times he had cramping down his thighs into the anterior aspect of both legs. He stated that he was provided a back brace at the time of the initial injury in service; however, he eventually removed the brace and was able to manage without it. The examiner noted that the veteran walked with a very slow and deliberate gait. Clinical evaluation revealed some lumbar tenderness but no paravertebral spasm or rigidity. He flexed 85 degrees but stood with the thoracolumbar spine flexed at 16 degrees. Lateral bending was 22 degrees bilaterally. He was able to walk on his toes and heels but did so with difficulty, but without evidence of paresis. He was able to squat 75 percent. There was no dermatomal sensory deficits or myotomal weakness detected. Straight leg raising was to 80 degrees bilaterally. X-rays of the lumbar spine revealed narrowing of L4 disc space with other disc spaces appearing maintained with degenerative lumbosacral facet changes. The diagnosis was lumbar spondylosis. In January 1997, the veteran testified that his back pain sometimes woke him up and limited his movement. He also stated that he experienced numbness in his legs which caused him to lose his balance at times. See January 1997 hearing transcript. In a hearing officer's decision, dated in March 1997, the disability evaluation for the veteran's low back strain was increased to 40 percent disabling. Analysis Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55 (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 for the higher rating. 38 C.F.R. § 4.7. The veteran's low back strain is currently evaluated as 40 percent disabling under Diagnostic Code 5295. Under this code, a 40 percent evaluation is warranted for severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a 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. A 40 percent evaluation is also warranted if only some of these manifestations are present with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295. A 40 percent rating is the highest schedular evaluation assignable under Diagnostic Code 5295. Although currently evaluated at the highest evaluation under the Diagnostic Code 5295, also potentially relevant is Diagnostic Code 5293, which pertains to intervertebral disc syndrome. Under this code, a 60 percent evaluation is warranted when the disability is pronounced and is manifested by persistent symptoms that are compatible with sciatic neuropathy with either (1) characteristic pain and demonstrable muscle spasm, (2) absent ankle jerk, or (3) other neurological findings appropriate to the site of the diseased disk, with little intermittent relief. 38 C.F.R. 4.71a, Diagnostic Code 5293. Here, the Board observes that according to the evidence of record that veteran has objectively confirmed pain and tenderness in the low back. The record further reflects that the veteran has expressed complaints of radiating pain down his leg, and the medical evidence does show findings of sciatica, which are consistent with sciatic neuropathy. According to the veteran's private chiropractor in 1995, the veteran has moderate to severe degenerative disc disease with osteophyte formation of the lumbar spine. Moreover, the x- ray evidence reveals disc space narrowing at the L4 level, and an MRI was noted to show disc bulging at L4-5 in the lumbosacral area. Nevertheless, the results of the motor, sensory, and neurological tests were essentially found to be within normal limits on private and VA examinations (conducted between July 1994 and December 1995), and thus were not clinically characteristic of any neurological deficit. In fact, these same data disclose that the veteran demonstrated motor strength of 5/5 with intact deep tendons reflexes and negative straight raising. Further, as evidenced by the June 1996 report, no sign of sensory deficit or weakness was detected on examination, and the straight leg raising tests were to 80 degrees bilaterally. The veteran walked on his toes and heels, albeit with some difficulty, but there was no evidence of paresis. While the medical data of record, dated in December 1994 and May 1995, reflect that the veteran had moderate to severe muscle spasms, subsequently dated medical data provide no evidence that the veteran currently suffers from demonstrable muscle spasm resulting from the service-connected low back strain. Indeed, the June 1996 report reveals that there was no paravertebral spasm or rigidity of the lumbar spine. Under diagnostic code 5293, a 60 percent evaluation requires evidence of demonstrable muscle spasm, absent ankle jerk, or other neurological findings, all of which must be productive of pronounced impairment, in addition to the veteran's complaints of radiating pain and findings of sciatica neuropathy. See generally DeLuca v. Brown, 8 Vet.App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. In view of the foregoing, the Board must conclude that an increased evaluation for the veteran's service-connected low back strain under diagnostic code 5293 is not warranted. Similarly, a 60 percent evaluation under diagnostic code 5285 also requires evidence of abnormal mobility which requires a neck brace (jury mast). Notably, however, the findings contained in the reports of examination dated in April and December 1995, as well as in June 1996, were not clinically characteristic of any deficit involving the veteran's gait or coordination. Further, the veteran has acknowledged that, although he was initially provided a back brace in service, he no longer uses the brace and is able to manage without it. Hence, an increased evaluation in excess of the prevailing 40 percent rating, under diagnostic code 5285, is not warranted. In a similar manner, an increased evaluation is not warranted under either diagnostic code 5286 or 5289, in light the fact that the veteran clinically shows lumbar spine motion, and thus there is no evidence of ankylosis of the spine, or of the lumbar spine in particular. As the foregoing clinical record shows no evidence of abnormal mobility requiring a neck brace, or ankylosis of the lumbar spine, the record shows that the veteran's service-connected low back strain is most appropriately evaluated under diagnostic code 5295. As shown above, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran or his representative, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In this case, the Board finds no provision upon which to assign a higher rating. Furthermore, the Board recognizes that there are situations in which the application of 38 C.F.R. §§ 4.40 or 4.45 is warranted in order to evaluate the existence of any functional loss due to pain, or any weakened movement, excess fatigability, incoordination, or pain on movement of the veteran's joints. See DeLuca, supra. In this case, however, the evidence of record reflects that the veteran does not exhibit weakness, deformity, atrophy, fasciculation, or any other signs of disability greater than the impairment recognized by the current evaluation. Thus, the Board finds that 38 C.F.R. §§ 4.40 or 4.45 do not provide a basis for a higher rating. As the Board concludes that the preponderance of the evidence is against the veteran's claim for an increased rating, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107. ORDER An increased evaluation in excess of 40 percent for low back strain is denied. DEBORAH W. SINGLETON Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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, 102 Stat. 4105, 4122 (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.