BVA9506034 DOCKET NO. 91-55 543 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an increased rating for chronic lumbosacral strain with degenerative changes, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD R. T. Jones, Counsel INTRODUCTION The veteran served on active duty from March 1959 to February 1961. This matter comes to the Board of Veterans' Appeals (Board) from a January 1989 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which denied an increased rating for the veteran's service-connected low back disability. The case was remanded by the Board in April 1991 for additional development and was returned to the Board in January 1995. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected low back disability is more disabling than reflected by the current rating. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence favors a 40 percent rating for chronic lumbosacral strain with degenerative changes. FINDING OF FACT The veteran's service-connected chronic lumbosacral strain with degenerative changes is manifested by nearly severe limitation of motion of the lumbar spine, loss of lateral motion with osteoarthritic changes, muscle spasms, and narrowing of the joint space, without signs of intervertebral disc syndrome. CONCLUSION OF LAW The criteria for an evaluation of 40 percent for chronic lumbosacral strain with degenerative changes have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.71a and Part 4, Codes 5010-5292, 5293, 5295 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran served on active duty from March 1959 to February 1961. The RO granted service connection for chronic lumbosacral strain in September 1961, noting that the service medical records showed the veteran injured his back in service in July 1959. Initially, a zero percent rating was assigned, but it was thereafter increased, based on pain at the extremes of bending, to a 10 percent rating effective from his discharge from service. In January 1980 the RO increased the rating for the low back disability to 20 percent, effective from January 1979, when the veteran was seen at St. Vincent's Hospital at Worchester, Massachusetts, for the onset of low back pain after pulling a hose while working as a fire fighter. There was spasm and some limitation of motion. The 20 percent rating has been continuously in effect since that time. The current claim for an increased rating for the service- connected low back disability was received in May 1988. In August 1988 Nicholas Cappello, M.D., reported the veteran had persistent muscle spasm, rigidity, and pain, and X-rays showed osteoarthritic changes which had progressed since 1985. An August 1988 VA examination notes the veteran was 5 feet 4 inches tall and weighed 252 pounds and presented a severely painful mien. He had almost complete restriction of range of motion studies and reported agonizing pain on extremely light finger pressure or light touch at the lumbosacral juncture. Knee jerks and ankle jerks were equal and brisk. Peripheral motor power and sensation were normal. He had completely unrestricted and painless straight leg raising sitting over the side of the examining table, but straight leg raising in the supine position was not permitted to even a couple of degrees, and he allowed no bent leg raising at all, even though he could obviously sit with 90 degrees of hip flexion. The veteran brought a CAT scan and magnetic imaging resonance (MRI) study with him which the examiner referred for interpretation by specialists. The examination report contains a November 1988 notation that the MRI brought in by the veteran was negative, and that with the negative scan and the very equivocal extreme picture presented in the veteran's examination, it was impossible to accurately account for possible disability. In December 1989 Dr. Cappello reported the veteran complained of severe low back pain on an October 1989 examination and had difficulty walking, getting in and out of a car, and ascending and descending stairs. Dr. Cappello reported the veteran had degenerative joint disease of the spine, and his prognosis was "guarded due to functional improvement and recovery." In January 1990 Mario Moretti, M.D., reported that, due to his back injury, the veteran was on anti-inflammatory medications which caused a gastric ulcer (the RO later granted secondary service connection for a duodenal ulcer). VA outpatient treatment records show intermittent visits for complaints including low back pain for many years. In February 1988 it was noted he was not attending physical therapy after his first visit in October 1986 and that he was on leave from his job with the fire department because of a fracture in his right hand. It was reported the veteran was extremely obese and had not complied with previous recommendations. At a December 1989 hearing at the RO, the veteran reported the medications he was taking for low back pain. He said the pain was increasing and worse in cold and damp weather. He stated he had gained weight because his back was getting worse. His wife testified that she had been forced to perform more of the household chores because of the veteran's back problems. She stated the veteran could not sit more than one-half hour or 45 minutes without having to get up and walk around. At a December 1990 hearing at the RO, the veteran testified primarily regarding a pending claim for secondary service connection for an ulcer. He stated he had been taking anti- inflammatory medications for his back problems. He did not describe specific low back symptoms. On a February 1991 VA examination, it was reported the veteran was 5 feet 4 1/4 inches tall and weighed 258 pounds. His gait was regular and careful. He stated he could not walk on his toes or heels or squat. He was too large to palpate the erector muscles. On very light finger dabbing over the back, he seemed to have severe pain at the lumbosacral junction. He was able to bend so that his fingers reached to the middle to lower third of his thighs. He had zero backward bending and zero degrees of right and left bending all with complaints of pain. In the supine position he stated he could hardly maintain his position. He stated active and passive straight leg raising was extremely painful after 1 to 2 degrees. However, he bent forward much better sitting on the table with his legs outstretched, getting his fingers at least to the midleg and showing about 70 degrees of straight leg raising. Knee jerks were equal and very brisk. Ankle jerks were equal and sluggish. Getting on the table over the side, straight leg raising looked to be about 90 degrees and was obviously painless. Exquisite tenderness was reported on very light finger pressure at the lumbosacral junction and sacroiliac joints. The diagnosis was a history of low back pain with an unremarkable examination. Outpatient treatment records from a VA clinic beginning in November 1992 show the veteran received physical therapy in May 1993. There was an assessment of chronic, severe back pain secondary to arthritis resulting in limited mobility and a decreased ability to do activities. The examiner stated the veteran was only able to perform about one-quarter of the range of all movements secondary to severe pain. There was spasm of the lower lumbar paraspinous muscles, bilaterally. In July 1993 there was bilateral spasm, and trunk mobility was "very limited." In November 1993 the veteran complained that his back pain had increased for the last two weeks and he was unable to do physical exercises due to pain. It was reported he wanted to have weight reduction, but had not been successful in this regard. The impression was chronic low back pain syndrome. On a September 1994 VA intestinal examination, it was reported that the veteran had diffuse back spasm and difficulty standing or lying flat on his back. The diagnoses included history of low back pain. On a September 1994 VA orthopedic examination, the veteran reported he was taking pain medication and used a TENS unit 2 to 3 times a week for pain relief in the low back area. He brought a copy of an X-ray report and a MRI. The X-ray showed retroversion of the 5th lumbar vertebra and the 1st sacral segment which was usually associated with muscle spasm. There were arthritis and moderate narrowing of the L5 - S1 interspace. There was minimal disc space narrowing of L4-L5. A 1993 MRI showed a small herniated nucleus pulposus at the L5 - S1 interspace and at L4-L5 on the right without apparent involvement of the nerve root. Examination showed the veteran was very obese. He was 5 feet 6 inches tall and stated he currently weighed 285 pounds. It was noted that his weight in December 1993 was 301 pounds and earlier examination showed his weight ranged from 280 to 300 on various occasions. He walked with a rather flat-footed, side-to-side gait which could be related to his very protuberant abdomen. He reported tenderness along the lumbosacral spine and in the paravertebral musculature. There was no sciatic tenderness. Range of motion was flexion to 24 degrees; extension to 5 degrees; lateral bending 14 degrees, bilaterally; and rotation to 10 degrees, bilaterally. There was no apparent paravertebral muscle spasm; however, due to the obesity, the paravertebral musculature could not be well visualized. Reflexes were one plus at both knees and two plus at both ankles. There was no sensory disturbance in the lower extremities. Motor function was within normal limits. The diagnosis was degenerative disc disease and osteoarthritis of the lumbar spine without neurological change and marked obesity. VA X-rays taken in September 1994 were interpreted by the radiologist as showing mild degenerative change involving the lower thoracic and upper lumbar vertebral bodies. Alignment, vertebral body height and disc space height were maintained. II. Analysis The veteran has presented a well-grounded claim; that is, it is not inherently implausible. 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet.App. 78 (1990). Following the 1991 VA remand, the VA has fulfilled its duty to assist the veteran in development of his claim. Id. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Traumatic arthritis is rated as degenerative arthritis. Diagnostic Code 5010. Degenerative arthritis will generally be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Diagnostic Code 5003. Where there is moderate limitation of motion of the lumbar spine, a 20 percent evaluation is assigned, and a 40 percent evaluation is assigned for severe limitation of motion of the lumbar spine. Diagnostic Code 5292. A 20 percent evaluation is warranted for moderate intervertebral disc syndrome with recurrent attacks. A 40 percent evaluation requires severe intervertebral disc syndrome with recurring attacks with intermittent relief. 38 C.F.R. Part 4, Code 5293. 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 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 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. Part 4, Code 5295. Factors of disability of the musculoskeletal system include excursion, strength, speed, coordination, and endurance. Functional loss may be due to absence or deformity of a structure, or due to pain, supported by adequate pathology. Weakness is as important as limitation of motion. 38 C.F.R. § 4.40. Other factors include swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. The veteran injured his low back in service many years ago and now has arthritis and disc disease in the low back. His limitations have obviously been greatly affected by his extreme obesity, and a number of examiners appear to suggest that the veteran has exaggerated his symptoms. For example, on the August 1988 VA examination, the doctor stated that because of the equivocal extreme picture presented by the examination, he was unable to assess "possible" disability, and on the February 1991 VA examination, when the veteran was able to do no extension or side bending and only 1 to 2 degrees of straight leg raising, the examiner diagnosed only a history of low back pain and stated the examination was "unremarkable". Nevertheless, on the September 1994 VA orthopedic examination, the veteran had limitation of flexion to 24 degrees; extension to 5 degrees; lateral bending to 14 degrees, bilaterally; and rotation to 10 degrees, bilaterally. A normal range of motion of the lumbar spine is forward flexion to 95 degrees, backward extension to 35 degrees, flexion to 40 degrees and rotation to 35 degrees. See Physician's Guide for Disability Evaluation Examinations, § 2.23 (March 1995). This amount of restriction more closely approximates "severe" limitation of motion and "marked" limitation of forward bending. For an evaluation in excess of 20 percent under Diagnostic Code 5294, there must be at least severe lumbosacral strain, as described above. In this regard the evidence does not show listing of the whole spine to the opposite side or a positive Goldthwait's sign. However, the September 1994 VA orthopedic examination does show marked limitation of forward bending and loss of lateral motion with osteoarthritic changes, as well as equivocal narrowing of the lumbosacral joint space (the most recent X-rays indicate disc space height was maintained). There was no report of abnormal mobility on forced motion. Muscle spasm is amply demonstrated by the outpatient records. Thus, enough of the criteria are met so that, with application of 38 C.F.R. § 4.7, a 40 percent rating is warranted under Diagnostic Code 5294. For an evaluation in excess of 20 percent under Diagnostic code 5293, there must be at least severe intervertebral disc syndrome with recurring attacks with intermittent relief. The current evidence does not show radiculopathy or neurological symptoms showing low back disc pathology. In this regard, on the September 1994 orthopedic examination (and earlier VA examinations), the veteran had no sensory disturbance in the lower extremities and motor function was within normal limits. He has not been seen for recurring attacks of intervertebral disc syndrome. Thus an increased rating is not warranted under Diagnostic Code 5293. The circumstances in this case are not so exceptional or unusual as to render impractical the application of the regular schedular standards. Frequent hospitalizations or marked interference with employment are not suggested by the record. See 38 C.F.R. § 3.321(b). At last report, the VA examination in February 1991, the veteran had been employed as a firefighter for 20 years and had lost no time from work in the last 12 months. ORDER A 40 percent rating for chronic lumbosacral strain with degenerative changes is granted. J. E. DAY 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.