Citation Nr: 0006911 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 96-13 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased evaluation for chronic lumbar strain, currently evaluated at 10 percent disabling. ATTORNEY FOR THE BOARD L.A. Howell, Counsel INTRODUCTION The veteran served on active duty from July 1972 to November 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied an increased rating for a lumbar spine disability. In June 1999, the Board remanded the issue to the RO for further development. The requested developments have been accomplished and the case is now ready for appellate review. FINDINGS OF FACT 1. The RO has developed all evidence necessary for an equitable disposition of the veteran's claim. 2. The veteran's lumbar strain is currently manifested by subjective complaints of back pain when he exercises or bends over. 3. Current objective findings of the veteran's lumbar strain include good range of motion and back tenderness. 4. There is no objective clinical evidence of ankylosis, intervertebral disc syndrome, or unilateral muscle spasm on extreme forward bending with loss of lateral spine motion. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for chronic lumbar strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DCs) 5003-5010, 5289, 5292, 5293, 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (1999). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1999); 38 C.F.R. Part 4 (1999). However, the Board will consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (1999). Further, in evaluating increased ratings, consideration will be given to whether higher ratings are available under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca v. Brown, 8 Vet. App. 202 (1995). Specifically, in DeLuca, the Board was directed to consider whether a veteran's complaints of shoulder pain could significantly limit functional ability during flare-ups or when the arm was used repeatedly, thus warranting a higher evaluation under 38 C.F.R. § 4.40. Moreover, the Board will consider whether weakened movement, excess fatigability, and incoordination support higher ratings under 38 C.F.R. § 4.45. See DeLuca, 8 Vet. App. at 207. In addition to the regulations cited above, the VA General Counsel issued a precedential opinion (VAOPGCPREC 23-97) holding that a claimant who had arthritis and instability of the knee may be rated separately under DCs 5010 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. In determining whether additional disability exists, for purposes of a separate rating, the veteran must meet, at minimum, the criteria for a noncompensable rating under either of those codes. Cf. Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997) (assignment of zero-percent ratings is consistent with requirement that service connection may be granted only in cases of currently existing disability). With these considerations in mind, the Board will address the merits of the claim at issue. The RO rated the veteran's low back disability under DC 5295 (lumbosacral strain). The Board will also consider DCs 5003- 5010, 5289, 5292, and 5293 for arthritis, lumbar ankylosis, limitation of motion, and intervertebral disc syndrome. Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003 (1999). When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DC, a rating of 10 percent is warranted for each major joint or groups of joints affected by limitation of motion, to be combined, not added under DC 5003. Under DC 5289, unfavorable ankylosis of the lumbar spine warrants a 50 percent evaluation, and favorable ankylosis warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, DC 5289 (1999). Slight limitation of motion of the lumbar segment of the spine warrants a 10 percent evaluation under DC 5292. A 20 percent evaluation requires moderate limitation of motion; while a 40 percent evaluation, the highest given under this code, requires severe limitation of motion. 38 C.F.R. § 4.71a, DC 5292 (1999). Under DC 5293, a noncompensable evaluation is warranted for postoperative, cured intervertebral disc syndrome. A 10 percent evaluation is warranted upon a showing of mild intervertebral disc syndrome, while a 20 percent evaluation requires moderate intervertebral disc syndrome with recurring attacks. A 40 percent evaluation requires severe intervertebral disc syndrome with recurring attacks with intermittent relief. A 60 percent evaluation requires 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. 38 C.F.R. § 4.71a, DC 5293 (1999). Under DC 5295, a noncompensable evaluation is warranted upon a showing of slight lumbosacral strain with subjective symptoms only, while a 10 percent evaluation may be assigned with characteristic pain on motion. A 20 percent evaluation is warranted for lumbosacral strain where there is muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. A 40 percent evaluation, the highest award under this code, requires severe lumbosacral strain manifested by listing of the whole spine to the opposite side, and 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 the joint space. A 40 percent evaluation is also warranted if only some of these manifestations are present if there is also abnormal mobility on forced motion. 38 C.F.R. § 4.71a, DC 5295 (1999). Historically, the RO granted service connection for a chronic lumbar strain by rating decision dated in April 1975. Except for one treatment note dated in May 1979, the medical evidence is negative for complaints or treatment of a lumbar spine disability for many years. In April 1995, the veteran sustained a severe injury to the cervical spine from a fall at home. He experienced progressive weakness which ultimately leading to quadriplegic paralysis for a period of time. However, there was no mention at the time of the injury or thereafter of an associated injury to the lumbar spine. Nonetheless, in August 1995, the veteran filed a claim for an increased rating for his lumbar spine disability. He maintained, in essence, that he had lost control of his arms and legs and had gone through extensive therapy on his upper and lower body. He asserted that the injury sustained in April 1995 was a reoccurrence of the back and spine injury that he sustained in service. On remand from the Board, the veteran underwent a VA examination in September 1999 for the purpose of evaluating only his lumbar spine disability, without consideration of his nonservice-connected cervical spine injury. The examiner noted a back injury in 1973 during service as a result of a fall. He was diagnosed with a sprain; however, the examiner observed that the records were sketchy and the veteran had never worked. Apparently at the time of the 1973 injury, the veteran also injured his knees, which was the focus of treatment. A thick medical file was noted primarily related to the veteran's more recent neck injury and the examiner reflected that he found nothing relating to the veteran's low back disability. The veteran complained that his back hurt when he exercised and bent over. He indicated that he used a cane to walk because of his low back but that he started using the cane around the time of his neck problems. Physical examination revealed what the examiner characterized as "surprisingly good" range of motion with 90 degrees of flexion, 30 degrees of extension, 40 degrees of right and left lateral bending, and 30 degrees of rotation. The veteran had low back tenderness but no muscle spasm, no sciatic notch tenderness, and straight leg raising was negative. Deep tendon reflexes, strength, and sensation were all intact. X-rays reportedly showed minimal, if any, degenerative changes. The clinical impression was chronic low back strain. The examiner opined that an MRI would most probably show some bulging discs because of the veteran's age but did not feel that the test was necessary because it would not change the treatment course. The examiner indicated that a 10 percent evaluation of the veteran's back disability was generous and he did not feel it was necessary to increase it. The examiner concluded that the examination was totally related to the veteran's low back and not his neck and associated spinal cord problem. A review of the most recent clinical evidence of record, which is the most probative evidence to consider in determining the appropriate disability rating to be assigned under the holding in Francisco v. Brown, 7 Vet. App. 55 (1994), does not reflect that a higher than 10 percent evaluation for the veteran's lumbar spine disability is warranted. Specifically, the current rating contemplates a lumbosacral strain with characteristic pain on motion (DC 5295), mild intervertebral disc syndrome (DC 5293), and slight limitation of motion (DC 5292). Separate ratings for these pathologies are prohibited: "the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity." 38 C.F.R. § 4.14 (1999); Estaban v. Brown, 6 Vet. App. 259 (1994); Brady v. Brown, 4 Vet. App. 203, 206 (1993). Initially, the Board notes that the evidence does not support a finding of ankylosis of the lumbar spine. In the most recent VA examination, the veteran demonstrated essentially full range of motion in the lumbar spine, which the examiner remarked was "surprisingly good." Because the evidence does not show ankylosis of the lumbar spine, there is no basis under DC 5289 for an increased rating. If normal back motion on forward flexion is considered to be to the ability to touch toes, or 90 to 95 degrees, then the most recent VA examination reports indicated that the veteran had essentially full range of motion. Specifically, the most recent examination revealed flexion to 90 degrees. Backward extension was noted to be 30 degrees, lateral flexion to 40 degrees bilaterally, and rotation to 30 degrees bilaterally. Further, there was no objective evidence of pain on motion, although some tenderness of the back was noted. There was no opinion or other evidence offered that these ranges approximate even slight limitation of motion (which is already contemplated by the current rating). As moderate limitation of motion of the lumbar spine is not shown, there is no basis for a higher rating under DC 5292. As the veteran's disability evaluation is based on limitation of motion of the lumbar spine, a separate compensable rating for arthritis under DC 5003-5010 is not warranted. Moreover, while the examiner opined that the veteran probably had some bulging discs and suggested that it would be due to the veteran's age, there is no evidence of intervertebral disc syndrome. Specifically, there were no signs of muscle spasm, absent ankle jerk, or other neurologic findings compatible with sciatic neuropathy. In addition, the examiner observed that reflexes, strength, and sensation were intact. Significantly, disc pathology has not been reported, nor is there evidence of radiation of any pain into the extremities. In the absence of findings compatible with intervertebral disc syndrome, a higher than 10 percent evaluation for the disorder under DC 5293 is not warranted. Accordingly, there are no findings that would be consistent with assignment of a higher rating under this diagnostic code. Moreover, there is nothing to suggest that even if disc pathology was identified that it would be considered part of the service connected disorder. Finally, a 20 percent evaluation is warranted under DC 5295 with unilateral muscle spasm and extreme forward bending, loss of lateral spine motion in a standing position. The evidence of record establishes that the veteran's clinical disability does not approximate the criteria for a 20 percent rating under DC 5295, although it does approximate the criteria for a 10 percent rating. Specifically, the evidence reveals that the veteran complained of tenderness in the back but pain on motion was not reported. Further, there was no evidence of muscle spasms and no loss of lateral spine motion as evidenced by essentially full range of motion. Thus, a 10 percent rating, but no more, would be warranted under DC 5295. The Board has considered the veteran's written statements that his lumbar spine disability is worse than currently evaluated. Although his statements are probative of symptomatology, they are not competent or credible evidence of a diagnosis, date of onset, or medical causation of a disability. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Miller v. Derwinski, 2 Vet. App. 578, 580 (1992). As noted, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. The Board concludes that the medical findings, which directly address the criteria under which the service- connected disability is evaluated, are more probative than the subjective evidence of an increased disability. The VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran's working or seeking work. Moreover, 38 C.F.R. § 4.10 states that, in cases of functional impairment, evaluations are to be based upon lack of usefulness, and medical examiners must furnish, in addition to etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of the disability upon a person's ordinary activity. This evaluation includes functional disability due to pain under the provisions of 38 C.F.R. § 4.40. Special consideration is given to factors affecting function in joint disabilities under 38 C.F.R. § 4.45. These requirements for the consideration of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete or inaccurate report and to enable the VA to make a more precise evaluation of the level of disability and any changes in the condition. The Board has considered these provisions, taking into consideration the objective findings as well as the subjective statements, as well as the sworn testimony of the veteran, and finds that his lumbar spine disability warrants no more than a 10 percent evaluation. Again, it is noted that on recent examination it was not shown that there was any ankylosis, limitation of motion, neurological involvement, muscle spasm, or loss of lateral spine motion. (CONTINUED ON NEXT PAGE) ORDER The claim for entitlement to an increased evaluation for chronic lumbar strain, currently evaluated at 10 percent disabling, is denied. MICHAEL D. LYON Member, Board of Veterans' Appeal