BVA9507251 DOCKET NO. 93-13 612 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased rating for lumbosacral strain with surgical residuals, currently rated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD George E. Guido Jr., Counsel INTRODUCTION The veteran-appellant had active military service from October 1976 to October 1980. This appeal to the Board of Veterans' Appeals (Board) arises from rating decisions of July 1991 and March 1993 of the St. Louis, Missouri, Department of Veterans Affairs (VA) Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that, with resolution of reasonable doubt and the application of 38 C.F.R. § 4.7 (higher of two evaluations) and § 4.40 (functional loss due to pain), his low back disability is 60 percent disabling on the basis of an absent ankle reflex, sciatic pain and back pain and spasms with prolonged standing or walking with little or no relief with medication. He asserts that the disability jeopardizes his job. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), after review and consideration of all the evidence and material of record in the veteran's claims file and for the following reasons and bases, the Board decides that the preponderance of the evidence is against the claim for an increased rating. FINDINGS OF FACT 1. Lumbosacral strain with surgical residuals produces severe impairment, but the disability picture does not nearly approximate or equate to pronounced impairment 2. The veteran has not submitted evidence tending to show that his disability is unusual, e.g., requires frequent periods of hospitalization or causes unusual interference with work other than that contemplated within the schedular standards. CONCLUSION OF LAW The schedular criteria for a rating in excess of 40 percent for lumbosacral strain with surgical residuals have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.40, 4.71a, Diagnostic Code 5293 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION After a review of the record and of the veteran's arguments, the Board is satisfied that the relevant facts pertinent to the claim have been properly developed under VA's statutory duty to assist. 38 U.S.C.A. § 5107(a). 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. The recorded history is reviewed in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, but the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55-58 (1994). For this reason, in order to evaluate the disability in relation to its history, the Board briefly summarizes the recorded history under: Factual and Procedural Background Service medical records disclose that the veteran's low back pain was first documented in July 1977. When he was seen in November and December 1977, he complained of pain in the left lower back. In June 1980, he complained of low back pain radiating to the lower extremity. Medical examination for separation was not required. After service, reports of private medical treatment disclose that in December 1982 there was a two and one-half year history of intermittent low back pain with left leg discomfort. On initial VA examination in January 1983, the veteran complained of low back pain. The impression was chronic lumbosacral strain by history, intermittently symptomatic. On VA examination in July 1984, he complained of low back pain radiating to the left leg. In an August 1984 rating decision, the RO granted service connection for chronic lumbosacral strain and assigned a 10 percent rating under Diagnostic Code 5295 (lumbosacral strain). The 10 percent rating was confirmed after VA examinations in 1985 and 1987, in which the veteran complained of low back pain. Records of a private hospital disclose that in November 1987 the veteran was evaluated for low back pain, radiating to the left leg. Diagnostic studies revealed L4-5 spinal stenosis and herniated disc on the left side. Surgery consisted of L4-5 semihemilaminectomy, discectomy and foraminotomy. In a May 1988 rating decision, the RO amended the service- connected low back disability to include the surgical residuals. The ten percent rating was confirmed following a two month award of a temporary total rating for convalescence after the surgery. The 10 percent rating was also confirmed in an October 1990 rating decision. In April 1991, the veteran submitted a claim for increased compensation for his low back disability. In a July 1991 rating decision the RO increased the rating to 20 percent from October 1990. The veteran then initiated an appeal by filing a Notice of Disagreement. After further development of the claim, in a March 1993 rating decision, the RO increased the rating to 40 percent under Diagnostic Code 5293 (intervertebral disc syndrome) from October 1990. The veteran continued to pursue his appeal. Analysis Pursuant to 38 U.S.C.A. § 1155, the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5293 provides a 40 percent rating for intervertebral disc syndrome with severe impairment manifested by recurring attacks with intermittent relief. A 60 percent rating under the same Diagnostic Code requires pronounced impairment with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle reflex, or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. Current Status The evidence pertaining to the present level of disability consists of the following: In a December 1989 letter, the veteran was informed by his employer that any back injury or sickness resulting in time away for the job in the next 12 months could result in termination because of an unacceptable record of attendance, dating to 1982. On VA examination in June 1991, it was reported that there had been some improvement in the veteran's back condition but he still had moderate radiating pain, that he was on medication as needed and that he had not lost time from work in six months. The pertinent findings were: no tenderness or spasm; equal and active ankle jerks; normal gait, posture and carriage; normal muscular development of the lower extremities; negative X-ray study of the lumbosacral spine; negative straight leg raising test; and, he was able to walk on his toes and heels. While ranges of motion of the lumbar spine were limited, he had active motion in all planes. Records of the St. Louis VA Medical Center disclose that in July 1992 the veteran was seen for hypertension. In September 1992, he was seen for several problems including back pain for which he was taking pain medication. He was advised to continue with the medication and to return in six months. On VA orthopedic examination in August 1992, it was reported that since back surgery the veteran had some radiating pain to the left leg and that he wore a back brace for relief of his pain. He complained of a lot of pain with prolonged walking and sitting and that he had missed a lot of work because of his back problems. It was reported that he was currently working as a computer technician. The pertinent findings were: no postural or fixed deformities; significant muscle spasms; pain with ranges of motion; normal heel and toe standing; positive straight leg raising test; active deep tendon reflexes; and, normal X-ray study. Ranges of motion of the lumbar spine were limited, but active. On VA neurological examination in August 1992, the veteran described intermittent numbness in the distribution of the left sciatic nerve. The findings were absent left ankle jerk and diminished sensation of the posterior thigh to the popliteal space. On VA neurological examination in December 1992, the veteran complained of back pain. The pertinent findings were: no loss of movement in the lower extremities; no sensory loss; no loss of plantar or extensor flexion; and he could forward bend, walk on his heels and toes and squat and raise up adequately. The examiner found no neurological residuals due to surgery for the herniated disc. He also found no neurological significance in the reports of examinations. On VA orthopedic examination in December 1992, the veteran complained of left lower back pain with radiation to the left leg and decreased sensation in the left leg. The pertinent findings were: decreased sensation throughout the left leg; intact reflexes; mild paraspinal spasms; pain on motion; and, a negative straight leg raising test. Ranges of motion were limited, but there was no fixed deformity. The diagnosis was chronic low back pain with left leg sensory changes and no evidence of an ongoing herniated disc. Application of Law to Facts As in all disability ratings, the percentages represent as far as practicably can be determined the average impairment in earning capacity in civil occupations and the disability must be reviewed in relation to its history. 38 C.F.R. § 4.1. In evaluating disabilities of the musculoskeletal system, it is essential to trace the medical-industrial history. 38 C.F.R. § 4.41. As for industrial history, the record shows the veteran consistently complaining of low back pain (VA examinations from 1983 to 1987). He was working although he had experienced attendance problems over the years from 1982 to 1989 (employer's December 1989 letter), at least in part due to his back disability, particularly after surgery in 1987 (May 1988 rating decision, awarding a two month period of convalescence). Presently, the veteran had no missed work in six months (June 1991 report of VA examination) and he was currently working as a computer technician (August 1992 report of VA examination, although he did state that he had missed a lot of work). In other words, the veteran has been able to work and he has a good work record, notwithstanding attendance problems that were partially due to service-connected disability, for ten years, 1982-1992. As for the medical history, the Board considers the residuals of the 1987 surgery for a herniated disc central to evaluating the veteran's current level of disability. In developing the veteran's claim, he has been examined by VA on three separate occasions. On the 1992 examinations, both neurologic and orthopedic evaluations were performed. Reconciling the various reports in accordance with 38 C.F.R. § 4.2, the disability picture that emerges from these examinations consists of the following: The veteran definitely has back and radiating pain, muscle spasms, limited motion of the lumbar spine and sensory change in the left lower extremity. While radiating pain, muscle spasms and sensory changes are compatible with sciatic neuropathy, absent ankle reflex or other neurological findings appropriate to the site of the diseased disc have not been demonstrated. On the December 1992 neurological examination, the examiner found no neurological residuals due to surgery for the herniated disc. Moreover, he found no neurological significance in the reports of examinations. Also on orthopedic examination that same month the examiner found no evidence of an ongoing herniated disc. When the disability is reviewed in relation to its whole history, the clinical picture does not more nearly approximate, 38 C.F.R. § 4.7, or equate to pronounced impairment under Diagnostic Code 5293. Whether or not the veteran has little intermittent relief from his symptoms, including pain, a factor to be considered under 38 C.F.R. § 4.40, this alone does not elevate the impairment to pronounced in the absence of neurological residuals due to surgery for the herniated disc. The Board has also considered the disability on the basis of limitation of motion of the lumbar spine. The current 40 percent rating equates to severe limitation of motion of the lumbar spine under Diagnostic Code 5292 that is the maximum schedular rating based on limitation of motion. A 50 percent rating under Diagnostic Code 5289 requires that the lumbar spine be unfavorably ankylosed or fixed, which has not been shown. Nor does the evidence suggest that the disability picture presents such an exceptional or unusual case with related factors such as marked interference with employment or frequent periods of hospitalization so as to render impractical the schedular standards so as to warrant the assignment of an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1). The veteran has not submitted evidence tending to show that either the disability causes marked interference with work other than as contemplated within the schedular provisions or requires frequent periods of hospitalization. For the above reasons, the Board decides that the preponderance of the evidence is against the claim. ORDER An increased rating for lumbosacral strain with surgical residuals is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), 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 (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.