Citation Nr: 0004137 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 98-17 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased (compensable) rating for low back strain, to include restoration of a 10 percent rating. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The veteran served on active duty from January 1968 to August 1969. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO) which increased the rating for low back strain to 10 percent effective January 15, 1997. Following additional development, the RO, in a September 1998 rating action, proposed a reduction in the disability evaluation from 10 percent to noncompensable. A rating action of March 1999 implemented the proposed reduction and reduced the rating for the low back strain, effective June 1, 1999. The issue on appeal was characterized as a claim for an increased rating; however, the Board notes that the propriety of the March 1999 reduction action must also be considered. See Peyton v. Derwinski, 1 Vet.App. 282, 286 (1991); Dofflemyer v. Derwinski, 2 Vet.App. 277, 279-80 (1992). Therefore, the issue on appeal has been characterized to include both the propriety of the reduction and the claim for an increased schedular rating. The record reveals that service connection for post traumatic stress disorder (PTSD) was denied by rating action in February 1996. That month, the veteran was provided notice of the adverse decision and of his appellate rights; however, he did not file an appeal. In a VA Form 21-4138, Statement in Support of Claim, dated in October 1997, the veteran requested service connection for "mental problems". In a March 1999 rating decision, the RO determined that new and material evidence had not been submitted to reopen the claim for service connection for mental problems, to include PTSD. As the veteran has not filed a notice of disagreement with this decision, the Board does not have jurisdiction to consider the claim. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. A September 1997 rating decision assigned a 10 percent disability rating, effective January 15, 1997, for low back strain on the basis that the evidence showed that the veteran's range of motion of the lumbosacral spine was limited due to pain. In March 1999, the rating was reduced to noncompensable, effective June 1, 1999. 3. The disability rating for the veteran's service connected low back strain had been in effect for less than five years at the time it was reduced. 4. At the time of the reduction in rating in 1999, the veteran's low back condition was manifested by subjective complaints of pain, slight limitation of motion, and degenerative changes in the low back. CONCLUSIONS OF LAW 1. The criteria for restoration of a 10 percent rating for low back strain have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5292, 5293, 5295 (1999). 2. The criteria for rating in excess of 10 percent for low back strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5292, 5293, 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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 The service medical records show that the veteran was seen on several occasions for complaint of low back pain beginning in December 1968. The impression was recorded as chronic low back strain. Spasm of the low back was noted on occasion and as late as June 1969 he had minimal spasm of the lumbosacral area and pain on all motions. X-rays were normal and the conclusion was chronic low back strain. In a September 1969 rating decision, the RO granted service connection for low back strain and assigned a 10 percent rating from August 16, 1969. VA examination in October 1970 revealed a slight increase in the thoracolumbar curvature. There were no muscular spasms, atrophy or weakness of the paravertebral muscles. The veteran did not complain of any tenderness to pressure over the spine or back muscles. He had normal range of motion in his back in all directions. There was no muscular atrophy or weakness in the lower extremities. In the supine position he was able to raise both lower extremities off the table at the same time without difficulty and also performed a sit-up readily. He stated that he would have some low backaching if he stood for a long time. He walked with a normal gait and was able to bend, stoop, squat and stand on his heels and toes without difficulty. In an October 1970 rating decision, the RO reduced the disability evaluation for the veteran's low back strain to noncompensable from January 1, 1971. VA examination in June 1994 revealed no deformity of the lumbosacral spine. There was no spasm of the paraspinal muscles. He had some tenderness over the lower part of the lumbosacral spine. Bilateral straight leg raising was normal. Neurological examination was nonfocal. X-rays of the lumbar spine were normal. The diagnosis was chronic lumbar strain, moderately symptomatic. In January 1997, the veteran sought an increased rating for his service-connected low back strain. A VA outpatient treatment record dated on January 15, 1997 indicated that the veteran was seen for complaint of low back pain for the past month. Examination revealed tenderness in the lumbosacral spine and decreased range of motion. There was lumbosacral spasm. X-rays of the lumbar spine revealed no major problem. The impression was low back pain. On VA examination in March 1997, the veteran reported that in the last four months he had had increased pain and symptoms in his back. He noted very mild improvement with medications, including Ibuprofen and Robaxin. He complained of numbness over the lateral aspect of the left thigh and noted some discomfort in that area. He noted that the pain did not extend past his knees however. He did complain of pain whenever he straightened out the right leg in the back area. On physical examination, he had decreased quadriceps strength on the left side with a mildly decreased deep tendon reflex noted in the patellar tendon area. He had a positive straight leg raising on the right side. Examination of the spine noted that he had flexion of 30 degrees with full extension of his back to 0 degrees with flexion of the lumbar spine to 75 degrees before he started to experience pain. The examiner noted that on looking at the X-rays, he did have some mild arthrosis at L5-S1 with a mild decrease in disc space in this area. Otherwise, the remaining disc spaces appeared to be well maintained. The examiner concluded that the veteran had a herniated lumbar disc of moderate severity and symptoms. In September 1997, the RO increased the disability evaluation for the service-connected low back strain to 10 percent from January 15, 1997. Received in January 1998 were VA outpatient treatment records dated from February 1995 to October 1997. The records show that on examination in May 1997 range of motion of the lumbar spine was limited secondary to pain. Muscular spasm was noted. There was positive straight leg raising bilaterally, greater on the right side. Sensory impairment was noted in the left lower extremity. EMG nerve conducted studies conducted in July 1997 were interpreted to show evidence of sensory polyneuropathy. An MRI revealed degenerative joint disease of the lumbar spine with L5 narrowing bilaterally. Physical examination resulted in a diagnosis of chronic mechanical low back pain and degenerative joint disease. Clinical evaluation in October 1997 showed mild tenderness at L5. On VA examination in April 1998, the veteran complained of intermittent low back pain. He had achiness with difficulty bending and some intermittent sensory difficulties in the lower extremities. He denied any radicular type pain or difficulty controlling his bowel or bladder. Examination of the lumbar spine revealed good range of motion with forward flexion to 60 degrees, backward extension to 10 degrees and side bending to 20 degrees bilaterally. No palpable spasm was noted. Toe and heel walking was normal. Neurological evaluation revealed intact reflexes at the knees and zero reflexes at the ankles. Straight leg raising was negative. Strength was normal. Sensation was diminished in a patchy distribution. Internal and external rotation of the hips was normal. Pulses were normal. X-rays of the lumbar spine showed arthrosis at the L5-S1 facets. The disc spaces were otherwise well maintained with the exception of some slight loss of disc height at L5-S1. The diagnosis was low back pain by history, including service-related lumbar strain resolved. The examiner noted that the veteran's claims file was available and reviewed in its entirety. The examiner commented that in light of the veteran's negative EMG/NCV study and negative examination at separation, he did not believe that the veteran's current symptoms were related to any injury suffered to his lumbar spine while in the service. A VA treatment record dated in August 1998 showed that the veteran was seen for complaint of back pain for 1 1/2 years. He indicated that the pain radiated to both legs. Sensory examination revealed impairment in the left lower extremity. The impression was multi-level lumbar degenerative joint disease. In September 1998, the RO issued a rating decision which proposed to reduce the disability rating for the service- connected low back strain from 10 percent to noncompensable. The veteran was advised of the proposed reduction that month. See 38 C.F.R. § 3.105(e). In March 1999, the RO issued a rating action implementing the proposed reduction, effective from June 1, 1999. The veteran was notified of this reduction by letter dated in April 1999. 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. 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 service-connected low back strain is currently rated under Diagnostic Code 5295. Under this code, a noncompensable evaluation is assigned for a lumbosacral strain with slight subjective symptoms only. A 10 percent evaluation requires a lumbosacral strain with characteristic pain on motion; a 20 percent evaluation requires a lumbosacral strain accompanied by muscle spasm on extreme forward bending, with unilateral loss of lateral spine motion in a standing position; and a 40 percent evaluation requires 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 the standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint spaces, or with some of these characteristics with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295. The veteran's back disability may also be rated by analogy to Diagnostic Code 5292 (limitation of motion of the lumbar spine) where a 10 percent evaluation requires slight limitation of motion, a 20 percent evaluation requires moderate limitation of motion, and a 40 percent evaluation requires severe limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5292. Alternatively, the Board notes that under Diagnostic Code 5293 intervertebral disc syndrome warrants a noncompensable evaluation when it postoperative, cured. A 10 percent evaluation is assigned when it is mild. Moderate symptoms with recurring attacks of pain are assigned a 20 percent evaluation. Severe symptoms, with recurring attacks and intermittent relief are assigned a 40 percent evaluation. Pronounced symptoms, that are persistent and 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, with little intermittent relief are assigned a 60 percent evaluation. 38 C.F.R. § 4.71a, 5293. In evaluating the veteran's condition, the Board considers all of the applicable regulations, including consideration of the limitation of function imposed by pain. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). 38 C.F.R. § 4.40 allows for VA to take functional loss into consideration when rating a disability of the musculoskeletal system, due to the inability to perform the normal working movements of the body with the normal excursion, strength, speed, coordination and endurance. This loss may be due to any of a number of factors, such as absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology. Functional loss may also be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Id. 38 C.F.R. § 4.45 directs consideration of joint disability due to less movement of the joint than normal, more movement than normal, weakened movement, excess fatigability, incoordination or impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity or atrophy of disuse. This criteria also considers instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing. I. Restoration As noted above, the RO, in September 1997, increased the rating for low back strain to 10 percent effective January 15, 1997. The veteran appealed this decision. The 10 percent rating remained in effect until the RO, by means of a March 1999 rating action, determined pursuant to the provisions of 38 C.F.R. § 3.105(e) that a noncompensable evaluation was more appropriate, effective as of June 1, 1999. After a review of the record, the Board finds that the reduction was improper and that restoration of the 10 percent rating is warranted. Initially, the Board notes that the 10 evaluation for the veteran's low back strain had been in effect since January 15, 1997, or less than five years, at the time the reduction took effect, June 1, 1999. Because the 10 percent rating had been in effect for less than five years, the provisions of 38 C.F.R. § 3.344(a) and (b) are not for application in this case because those provisions "apply to ratings which have continued for long periods at the same level (5 years or more)" and not to disabilities which have not become stabilized and are likely to improve. 38 C.F.R. § 3.344(c); Smith v. Brown, 5 Vet.App. 335, 339 (1993). All that is required to warrant a reduction in the veteran's rating is re-examination that shows improvement in the service- connected condition. There is no question that a disability rating may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet.App. 277, 280 (1992). The United States Court of Appeals for Veterans Claims (Court) (formerly known as the United States Court of Veterans Appeal) in Brown v. Brown, 5 Vet.App. 413 (1993), has interpreted the provisions of 38 C.F.R. § 4.13 to require that in any rating reduction case, it must be ascertained, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Moreover, 38 C.F.R. §§ 4.2 and 4.10, provide that in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that improvement in a disability actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. The Board notes that it is arguable that the April 1998 VA examination showed improvement in the veteran's low back condition. There was palpable spasm noted and strength was normal. Neurological evaluation was negative as was straight leg raising. However, the examination did note subjective complaints of low back pain and X-rays revealed degenerative changes in the lumbar spine. In addition, while the examiner noted good range of motion of the lumbar spine, range of motion was not full. As such, the evidence appears to show decreased range of motion in the veteran's low back due to pain. See DeLuca v. Brown, 8 Vet.App. 202 (1995). After a careful review of the evidence and resolving all doubt in favor of the veteran, the Board finds that evidence of record as of March 1999, the date of the RO rating action which reduced the disability evaluation, was insufficient to show improvement in the veteran's low back condition. Therefore, the RO improperly determined that a noncompensable evaluation was for assignment, and restoration of the 10 percent evaluation is warranted. II. Increased Rating As for an increased rating, the Board does not find muscle spasm on extreme forward bending, with unilateral loss of lateral spine motion. Although muscle spasms were noted on a May 1997 VA outpatient treatment record, no palpable spasm was noted on VA examination in April 1998. In addition, there are no findings of loss of lateral spine motion. Thus, in the Board's judgment, when the disability is considered in light of the schedular criteria based on lumbosacral strain, there is simply no basis for the assignment of a rating greater than 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5295. When considering the disability under the criteria for limitation of motion, the Board notes that the most recent VA examination in April 1998 showed only slight limitation of motion of the back. Further while there is evidence of a herniated lumbar disc of moderate severity, there is no evidence that the symptoms associated the herniated disc are related to the service-connected low back strain, as indicated by the comments expressed by the VA examiner in April 1998. As such, service connection is not in effect for a herniated lumbar disc and thus the moderate degree symptomatology associated therewith may not be considered in establishing the service-connected evaluation in this case. Therefore, an increased evaluation in excess of 10 percent is not warranted under either Diagnostic Code 5292 or 5293. Accordingly, the Board finds that the veteran's service- connected low back strain is properly rated as 10 percent disabling under Diagnostic Code 5295. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.71a. 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 Restoration of a 10 percent rating for low back strain is granted, subject to the applicable laws and regulations concerning the payment of monetary benefits. A rating in excess of 10 percent for low back strain is denied. REMAND The record shows that service connection for schizophrenia was denied by rating action in January 1994. In November 1994, the veteran submitted VA Form 21-4138, Statement in Support of Claim, in which he referred to schizophrenia. The Board construes this as a timely notice of disagreement with the January 1994 RO decision to deny service connection for schizophrenia. The RO has not issued a statement of the case or supplemental statement of the case which addresses this issue and the Board finds that a remand for this action is necessary. See 38 C.F.R. §§ 19.9, 20.200, 20.201; see also Manlincon v. West, 12 Vet.App. 238 (1999). In order to ensure compliance with due process considerations, the veteran's claim for service connection for a cardiac disorder is accordingly REMANDED for the following: The RO should issue a statement of the case to the veteran and his representative concerning the issue of service connection for schizophrenia. This document should include reasons and bases for the holding. Thereafter, the veteran and his representative shall be afforded the appropriate period of time within which to respond. If a substantive appeal is received, then this case should be returned to the Board for appellative review. 38 U.S.C.A. § 7105. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. DEBORAH W. SINGLETON Member, Board of Veterans' Appeals