Citation Nr: 0006525 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 94-00 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability evaluation in excess of 10 percent for a lower back disability diagnosed as a lumbosacral strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Acosta, Counsel INTRODUCTION The veteran served on active duty from August 1956 to March 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1991 rating decision of the Department of Veterans Affairs (VA) St. Petersburg, Regional Office (RO), which denied the veteran's claim for a disability evaluation in excess of 10 percent for a low back syndrome. It was remanded in November 1995 and September 1997 for additional development and is now back at the Board, for appellate review. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the matter on appeal has been obtained and developed by the agency of original jurisdiction. 2. The preponderance of the evidence of record reveals that the functional impairment currently caused by the service- connected lower back disability is essentially manifested in the form of pain, tenderness and moderate limitation of motion. CONCLUSION OF LAW A 20 percent schedular rating for the service-connected lower back disability is warranted. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Part 4, Diagnostic Code 5292 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that, in accordance with 38 U.S.C.A. § 5107(a) (West 1991), and Murphy v. Derwinski, 1 Vet. App. 78 (1990), the veteran has presented a well- grounded claim for an increased rating. The facts relevant to this appeal have been properly developed and VA's obligation to assist the veteran in the development of his claim (not to be construed, however, as shifting from the claimant to VA the responsibility to produce necessary evidence, per 38 C.F.R. § 3.159(a) (1999)), has been satisfied. Id. Disability evaluations are based upon the average impairment of earning capacity as determined by VA's Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1, Part 4 (1999) (Schedule). Separate rating codes identify the various disabilities. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2 (1999). 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. 38 C.F.R. § 4.10 (1999). 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. 38 C.F.R. § 4.7 (1999). A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 38 C.F.R. § 4.40 (1999); see, also, DeLuca v. Brown, 8 Vet. App. 202, 205-206 (1995). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to abnormal movement (due to a variety of reasons, to include ankylosis, contracted scars, flail joints, etc.), weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, swelling, deformity, atrophy of disuse, as well as instability of station, disturbance of locomotion and interference with sitting, standing and weight-bearing. 38 C.F.R. § 4.45 (1999). When, after consideration of all evidence and material of record in a case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue that is material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991). By reasonable doubt is meant one which exists because of an approximate balance of the positive and the negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability, as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102 (1999); see, also, 38 C.F.R. § 4.3 (1999). In other words, when a veteran seeks benefits and the evidence is in relative equipoise, the law dictates that the veteran prevails. This "unique standard of proof" is in keeping with the high esteem in which our nation holds those who have served in the Armed Services. Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). A review of the record reveals that the service-connected lower back disability, also referred to in the record as a "low back syndrome," has been rated as 10 percent disabling since March 1987 under the provisions of Diagnostic Code 5295 of the Schedule, which provides for such a rating when a lumbosacral strain is productive of characteristic pain on motion. See, 38 C.F.R. § 4.71a, Part 4, Diagnostic Code 5295 (1999). The Board notes that a similar rating is also warranted when there is evidence of slight limitation of the motion of the lumbar spine (Diagnostic Code 5292), and when there is a mild intervertebral disc syndrome (Diagnostic Code 5293). See, 38 C.F.R. § 4.71a, Part 4, Diagnostic Codes 5292 and 5293 (1999). A 20 percent schedular rating is warranted when there is evidence of moderate limitation of the motion of the lumbosacral spine (Diagnostic Code 5292); moderate intervertebral disc syndrome, with recurring attacks (Diagnostic Code 5293); or lumbosacral strain, with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in the standing position (Diagnostic Code 5295). 38 C.F.R. § 4.71a, Part 4, Diagnostic Codes 5292, 5293, 5295 (1999). A 40 percent schedular rating is warranted when there is evidence of favorable ankylosis of the lumbar spine (Diagnostic Code 5289); severe limitation of the motion of the lumbar spine (Diagnostic Code 5292); severe intervertebral disc syndrome, with recurring attacks and only intermittent relief (Diagnostic Code 5293); or severe lumbosacral strain, with listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo-arthritic changes or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion (Diagnostic Code 5295). 38 C.F.R. § 4.71a, Part 4, Diagnostic Codes 5289, 5292, 5293, 5295 (1999). A 50 percent schedular rating is warranted when there is evidence of unfavorable ankylosis of the lumbosacral spine (Diagnostic Code 5289), while a 60 percent schedular rating is warranted when there is evidence of residuals of a fractured vertebra, without cord involvement, but with abnormal mobility requiring neck brace or jury mast (Diagnostic Code 5285); complete bony fixation (ankylosis) of the spine, at a favorable angle (Diagnostic Code 5286); or a pronounced intervertebral disc syndrome, with 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, and with little intermittent relief (Diagnostic Code 5293). 38 C.F.R. § 4.71a, Part 4, Diagnostic Codes 5285, 5286, 5289, 5293 (1999). A 100 percent (total) rating is warranted when there is evidence of the residuals of a fractured vertebra, with cord involvement and the veteran being bedridden or in need of long leg braces (Diagnostic Code 5285); or complete bony fixation (ankylosis) of the spine, at an unfavorable angle, with marked deformity and involvement of the major joints (Marie-Strumpell type) or without other joint involvement (Bechterew type) (Diagnostic Code 5286). 38 C.F.R. § 4.71a, Part 4, Diagnostic Codes 5285, 5286 (1999). The Board's review of the record further shows that the RO denied the benefit sought on appeal after a review of the evidence that was of record as of October 1991, which included the report of a VA medical examination that the veteran underwent in September 1991. On appeal, the veteran has claimed that the severity of the service-connected lower back disability warrants a rating higher than 10 percent, and it is noted that he initially claimed that the September 1991 VA medical examination was inadequate for rating purposes. The record shows that, shortly after the veteran's claim that the September 1991 VA medical examination was inadequate, the RO scheduled him for another VA medical examination, which was conducted in November 1992, and that the veteran thereafter underwent yet another VA medical examination, in December 1998, per instructions from the Board. Also, it is noted that, during the pendency of this appeal, additional evidence was added to the file, some of it (to be discussed in the following paragraphs) pertinent to this matter. Before discussing the evidence of record and reviewing the issue on appeal, the Board would point out at this time that the issue of service connection for degenerative joint disease and disc disease was denied by the RO in a February 1992 rating decision, after a finding to the effect that such disabilities of the lower back were first noted after suffering severe trauma to his lower back at his job in 1980 (i.e., more than 20 years after service). Since the veteran is not service-connected for either disc or joint disease, of the lower back the Board is of the view that it would not be appropriate, under the facts of this case, to review the present appeal under the diagnostic codes addressing degenerative joint disease (i.e., arthritis, addressed in Diagnostic Codes 5003 and 5010 of the Schedule) and disc disease (addressed in Diagnostic Code 5293 of the Schedule, as intervertebral disc syndrome). The report of the November 1992 VA medical examination reveals a history of inservice low back pain following a fall, complaints of pain radiating to the right leg, down to the toes, with weakness, and objective findings including paraspinal muscle spasm, slight scoliosis, probably due to the muscle spasm, positive objective evidence of pain on motion, and the following ranges of motion: forward flexion to 30 degrees, backward extension to 20 degrees, lateral flexion to 20 degrees, bilaterally, and rotation to 45 degrees, also bilaterally. The diagnosis was listed as chronic low back pain, with right sciatica, probable discogenic disease and degenerative joint disease of the spine. The report of VA X-Rays of the veteran's lumbosacral spine that were obtained in November 1992 reveals a "stable examination," when compared with a prior one in May 1991, with "[c]hanges of lumbar spondylosis ... again noted." A September 1993 private medical record reflects a consultation due to the veteran's "severe problems with his low back," and the examiner's comment to the effect that X- Rays had revealed a small amount of arthritis at the L4-5 level, with normal interspace heights for the veteran's age. An addendum to this note reveals that the veteran was administered a lumbar facet block. According to an April 1994 entry in the above mentioned private medical record, the veteran had moved to live with his daughter due to his problems with his cervical spine, with the second problem being his lower back, where he was "having more and more pain." Again, it was noted that he was administered a lumbar facet block. The report of a private MRI that was obtained in May 1994 reveals the following findings: mild annular disc bulging at L1-2; normal L2-3; mild annular disc bulging and mild disc dehydration at L3-4; disc dehydration, diffuse annular disc bulging, small herniated nucleus pulposus (HNP) centrally extending slightly towards the right, with potential irritation of both L5 roots, along with moderate associated spinal stenosis and bilateral facet arthropathy at L4-5; and minimal annular disc bulging, with no evidence of focal disc herniation at L5-S1. According to a June 1994 private medical record, the veteran's lumbar MRI had shown a small herniated disc at the L4-5 level, with moderate spinal stenosis, and, while these findings were not considered severe, it was noted that "the [veteran] needs aid for walking as he exhibits extreme pain." The report of November 1998 VA X-Rays of the veteran's lumbosacral spine reveals the following findings and impression: FINDINGS: Diffuse marginal hypertrophic spurring is identified throughout the lumbar spine. There is preservation of the vertebral body height and disk space height throughout. No spondylolisthesis or focal lytic lesion identified. Posterior facet hypertrophic degenerative changes are identified at the L5-S1 level. Impression: Mild, diffuse degenerative changes throughout the lumbar spine. No spondylolisthesis, focal compression fractures of focal lytic lesions identified. According to the report of the December 1998 VA medical ("spine") examination, the veteran complained of chronic lower back and left lower extremity pain, and said that he had been using a brace in the lumbosacral region for the last four months. It was noted that X-Rays obtained in November 1998 had revealed diffuse marginal hypertrophic spurring throughout the lumbar spine, with preservation of vertebral body height and disc space height throughout, and no identifiable spondylolisthesis or phacolytic lesion. Posterior facet hypertrophic degenerative changes were identified at the L5-S1 level. The overall impression, according to the subscribing examiner, was of mild diffuse degenerative changes throughout the lumbar spine without spondylolisthesis or any evidence of focal compression fracture or phacolytic lesions. It was also noted that a myelogram obtained in May 1991 had revealed a mild ventral defect of the thecal sac at the level of L4-5, likely representing a disc bulge. The above report also reveals that the veteran said that the back pain was ongoing down to the lumbosacral area, with an increasing shooting pain down his left lower extremity, which he noted when the pain was exacerbated. Exacerbations were consistent with walking excessive distances, or with excessive sitting. The veteran also said that the pain was most difficult in the morning when getting out of bed, but it was noted that he was able to remain independent. It was further noted that the veteran had a history of using non- steroidal anti-inflammatory drugs, as well as steroid injections, which he said gave him relief at the time of the injection and controlled his pain in a limited way. Otherwise, he said that he had been using the brace for the last four months for relief of his back pain, and that he was therefore independent and able to ambulate without difficulty or assistance, and take care of himself and his activities of daily living. Also according to the above report, on objective examination, the lumbosacral spine had rotation to 30 degrees, bilaterally, with forward flexion accomplished to only 30 degrees before tenderness set in. Lower back extension was accomplished to approximately 15 degrees before tenderness set in, greater [i.e., with more tenderness] on the left, and rotation was accomplished to 40 degrees, bilaterally. On palpation, there was no tenderness, palpable abnormality, spasm, or postural abnormality, and the musculature was intact. The brace was in place, and the veteran remained with good posture after the removal of the brace. Neurologic abnormalities were "not identified," and X-Rays of the spine were noted to show mild degenerative changes, being otherwise normal. The assessment/plan was listed as follows: Status post back sprain with chronic back pain. No evidence of instability. There is no evidence of weakened movements, excessive fatigability or incoordination in this examination. There is evidence of tenderness with specific movements; specifically forward flexion or back extension. Otherwise, lateral flexion and rotation appear to be with minimal limits. The [veteran]'s C-file ... [was reviewed] in its entirety with specific attention to the [instructions in the] remand ... . The Board notes that the record also contains the transcript of an RO hearing that was conducted in June 1992, at which time the veteran restated his contentions of record to the effect that he believes that the service-connected lower back disability should be rated higher than 10 percent disabling. As shown above, the record does not show that the service- connected lower back disability currently is manifested by the residuals of a fractured vertebra, any type of ankylosis, lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in the standing position, or what could reasonably be characterized as severe lumbosacral strain. As noted in the above discussion of the medical evidence in the file, there is no evidence of weakened movements, excessive fatigability, palpable abnormalities, spasms or incoordination, and the lumbosacral spine is able to move in all planes (i.e., it is not ankylosed), having essentially normal rotation and lateral flexion. A rating exceeding 10 percent is therefore not warranted under the provisions of Diagnostic Codes 5285, 5286, 5289 or 5295 of the Schedule. Consideration of an increased rating under the provisions of Diagnostic Code 5293 is not warranted either because, as explained earlier, service connection for the diagnosed disc disease has previously been denied. The record does show, however, that there is chronic pain, tenderness and some limitation in the lumbosacral spine's ability to forward flex and extend. While pain is already accounted for in the 10 percent rating that is currently in effect under Diagnostic 5295 and the current symptomatology may also partly be a manifestation of the nonservice- connected degenerative joint disease and disc disease, the Board believes, resolving any reasonable doubt in favor of the veteran and taking into consideration the provisions of §§ 4.40 and 4.45, as well as the holding in the above cited case of DeLuca, that the pain, tenderness and limitation of flexion and extension warrant a 20 percent rating under the provisions of Diagnostic Code 5292 of the Schedule, on account of what is reasonably shown to be moderate limitation of motion of the lumbosacral spine. A higher rating under the same diagnostic code is not warranted because the preponderance of the evidence of record does not show that the limitation of the motion, which must necessarily include consideration of not only flexion and extension, but also rotation and lateral flexion, is currently severe in nature. In view of the above, the Board concludes that a 20 percent schedular rating for the service-connected lower back disability is warranted. Finally, the Board notes that the record appears to show that the RO has not considered the question of a referral of the above matter to the Chief Benefits Director or the Director, Compensation and Pension Service, for the assignment of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) (1999). This regulation provides that, to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extra- schedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The United States Court of Appeals for Veterans Claims ("the Court") has held that, while the Board is precluded by regulation from assigning an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Regarding the above, the Board also notes that the Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the evidentiary record with these mandates in mind, the Board is of the opinion that a referral for extra-schedular consideration is not warranted in the present case, due to the lack of a reasonable basis for further action on this question. See, VAOPGCPREC. 6-96 (1996). ORDER A 20 percent disability evaluation is granted for the service-connected lower back disability, this grant being subject to the pertinent VA laws and regulations addressing the disbursement of VA funds. JEFF MARTIN Member, Board of Veterans' Appeals