BVA9505767 DOCKET NO. 93-07 135 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable disability rating for lumbar strain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James L. March, Associate Counsel INTRODUCTION The veteran had active service from August 1978 to June 1987. This appeal comes to the Board of Veterans' Appeals (Board) from a July 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In August 1993, the Board remanded the case for additional development which has been accomplished. CONTENTIONS OF APPELLANT ON APPEAL The veteran alleges that he is entitled to a compensable evaluation for his service-connected low back disability. He contends that his back has been painful since early in his period of service. He maintains that he loses two to three weeks of work each year as a result of low back pain. 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 supports a 10 percent disability evaluation for the veteran's lumbar strain. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran's lumbar strain is manifested by slight limitation of motion of the lumbar spine. CONCLUSION OF LAW The criteria for a 10 percent rating for lumbar strain have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.10, Part 4 Diagnostic Codes 5292, 5295 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all available relevant evidence has been obtained regarding the claim, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2 (1993), and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's lumbar strain. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations, except as noted below, which would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. In September 1987, the RO granted service connection for lumbar strain and assigned a noncompensable disability evaluation. VA outpatient medical records dated from August 1987 to June 1992 reveal that the veteran has received medication for low back pain since shortly after his separation from service. In his Substantive Appeal received in January 1993, the veteran alleged that a 20 percent disability rating is warranted for his lumbar strain due to back pain and limitation of motion. A radiology report dated in May 1993 from the Hialeah Hospital was later submitted. X-rays revealed no abnormalities of the lumbar spine. A CT scan showed that the bony structures were grossly normal. There was a slight element of spinal stenosis at the L4- L5 interspace with a slight midline bulge. Thus, the radiologist concluded that there was a possibility of a small herniated disc at the L4-L5 level. A hearing was conducted at the Board in June 1993. The veteran testified that he was entitled to a compensable disability evaluation for low back disability, because his back had been painful since early in his period of service. He stated that he originally injured his back early in service when he jumped in a foxhole and landed on a root or stump. He alleged that his motion was limited and that he lost two to three weeks of work each year as a result of low back pain. A letter dated in October 1993 was received from Valerio J. Toyos, M.D., the veteran's family physician. Dr. Toyos stated that he had treated the veteran since August 1991. He indicated that the veteran had come to him complaining of low back pain, and that he had recommended a lumbar spine X-ray and CT scan. He noted that this was accomplished at Hialeah Hospital and attached a copy of the radiology report discussed above. He stated that the veteran should see an orthopedist for evaluation and treatment. A VA orthopedic examination was conducted in September 1993. The history as described by the veteran was reported. The history was essentially the same as the veteran had reported at his hearing. The veteran stated that his duties at work were mainly administrative, and he complained of an almost constant low back pain. He stated that the pain frequently awakened him from sleep and that it was aggravated by prolonged sitting or standing. Physical examination revealed a short, obese individual, who walked with a normal gait with no evidence of a limp. He stood with good posture, and there was no evidence of a spinal tilt. Examination of the low back revealed that he had a full range of hyperextension, lateral bending to both sides, and rotation to both sides. He lacked 10 to 15 degrees of forward flexion. Straight leg raising was possible through a full range, bilaterally, without pain. There was no sensory loss in either lower extremity. The examiner noted that the veteran demonstrated almost no physical findings. He indicated that the veteran's complaints seemed far out of proportion to the physical findings. He also noted that the mechanism of injury as described by the veteran was not the usual mechanism for producing a disc injury. The examiner recommended a weight reduction program and an intensive exercise program. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1994). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. The veteran's service-connected lumbar strain has been rated noncompensably disabling under Diagnostic Code 5295. That code provides that a noncompensable evaluation is warranted for lumbosacral strain where there are only slight subjective symptoms. A 10 percent evaluation requires characteristic pain on motion. A 20 percent evaluation is warranted 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, 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. As the RO noted in the Statement of the Case, the veteran's disability also could be rated under Diagnostic Code 5292. That code provides that slight limitation of motion of the lumbar segment of the spine warrants a 10 percent evaluation. A 20 percent evaluation requires moderate limitation of motion, and a 40 percent evaluation requires severe limitation of motion. The Board finds that a 10 percent disability rating is warranted for the veteran's lumbar strain under Diagnostic Code 5292. The VA examination revealed that the veteran had slight limitation of flexion of the lumbar spine, despite almost no physical findings. The VA examiner noted an inconsistency between the described mechanism of the veteran's injury and possible disc trauma; however, the veteran is service-connected for lumbar strain and not a herniated disc. The Board further finds that the criteria for a 20 percent evaluation under either Code 5292 or 5295 are not met. The evidence does not establish moderate limitation of motion, and there is no evidence of muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. The Board has given due consideration to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, the Board finds that the evidence discussed above does not suggest that the veteran's service-connected disorder presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The disorder in question has not recently required frequent hospitalization, nor has it caused marked interference with employment. ORDER A disability evaluation of 10 percent is granted for lumbar strain, subject to the applicable criteria governing the payment of monetary benefits. J.J. SCHULE 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.