BVA9504649 DOCKET NO. 93-05 761 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased rating for low back strain, currently evaluated as 10 percent disabling. 2. Entitlement to an increased (compensable) evaluation for a left knee disability. ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from June 1980 to June 1992. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a September 1992 rating decision of the Regional Office (RO) which granted service connection for low back and left knee disabilities and assigned evaluations of 10 percent and noncompensable, respectively. This case was previously before the Board in June 1993, at which time it was remanded for additional development. After developing additional evidence in this case, the Board, in accordance with Thurber v. Brown, 5 Vet.App. 119 (1993), informed the appellant in a December 1994 letter of the additional evidence (a listing of the normal variations of lumbar spine motion from the VA Physician's Guide for Disability Evaluation Examinations) obtained subsequent to the issuance of the October 1993 supplemental statement of the case, and provided him a copy thereof and an opportunity to respond. No response was received from the appellant within the specified 60-day time period, and the Board will proceed with its review of the case. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that a higher rating should be assigned for his service-connected low back disability. He reports that he experiences pain and muscle spasm, and states that he is unable to lift many things due to his back disorder. The veteran also argues that his left knee gives way. He claims that walking and standing cause the knee to feel stiff. Thus, he maintains that a compensable evaluation should be assigned for it. 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 weight of the evidence is against the claim for an increased rating for low back strain, but that the record supports the assignment of an increased rating of 10 percent for a left knee disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's service-connected low back disability is manifested by slight limitation of lumbar spine motion and complaints of pain, without evidence of muscle spasm on recent Department of Veterans Affairs (VA) examination. 3. The veteran's service-connected left knee disability was found on recent VA examination to manifest mild crepitation of the patella on motion and x-ray evidence of minor degenerative change. CONCLUSIONS OF LAW 1. A rating in excess of 10 percent for chronic low back strain is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, Part 4 Code 5295 (1993). 2. Resolving the benefit of the doubt in the veteran's favor, a 10 percent evaluation for left knee disability is warranted. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, Part 4 Code 5257 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The initial question before the Board is whether the veteran has submitted well-grounded claims as required by 38 U.S.C.A. § 5107. The United States Court of Veterans Appeals (the Court) has held that a well-grounded claim is one which is plausible, that is, one which is capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In this case, the veteran's statements concerning the severity of the symptoms of his service-connected disabilities that are within the competence of a lay party to report are sufficient to conclude that his claims are well- grounded. Proscelle v. Derwinski, 2 Vet.App. 629; Espiritu v. Derwinski, 2 Vet.App. 492 (1992). All relevant facts have been developed and no further assistance is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). These include 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40. The requirements set forth in these regulations for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report, and to enable the VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet.App. at 593-94. I. An Increased Rating for a Low Back Disability The service medical records show that the veteran was seen in April 1986 and reported low back pain which had begun while doing sit-ups that morning. He felt a pop in his back. He denied any previous back injury. An examination disclosed full range of motion of the lumbosacral spine. It was tender with extension, side-bending and rotation. Straight leg raising was negative. An X- ray of the lumbosacral spine showed a mild mid-lumbar convex curvature, which was probably positional or muscular in nature. There was no significant abnormality seen otherwise. He again began complaining of back pain in 1991, and these complaints continued throughout the remainder of his service. An X-ray of the lumbosacral spine in January 1991 disclosed a minor fusion defect, arch S-1; otherwise the lumbar spine was normal. He was seen in the orthopedic clinic in April 1992. He complained of low back pain with any motion. On examination, there was moderate flattening of the lumbar lordosis. He was able to flex forward to his knees. By rating action in September 1992, the RO granted service connection for low back strain, and assigned it a 10 percent rating under the provisions of Diagnostic Code 5295 of the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4. A 20 percent evaluation may be assigned for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 10 percent evaluation is assignable with characteristic pain on motion. Code 5295. A 20 percent evaluation may be assigned for moderate limitation of motion of the lumbar spine. A 10 percent evaluation is assignable for slight limitation of motion of the lumbar spine. Code 5292. VA outpatient treatment records show that the veteran was treated for complaints of low back pain in 1992 and 1993. In January 1993, it was reported that he had not experienced any improvement with a TENS unit. An examination showed tenderness in the lumbar spine area with marked limitation of trunk flexion. On VA neurologic examination in September 1993, the veteran complained of low back pain which had become worse over the previous four years. He related that he had pain all the time. An examination disclosed back tenderness over the mid-lumbar region. Straight leg raising produced mild discomfort at about 60 degrees. X-ray studies of the lumbosacral spine revealed very minor degenerative change, but was otherwise normal. The examiner interpreted the X-ray films as showing spina bifida occulta at S1. The impression was chronic low back pain secondary to back strain. No neurological deficits were noted by the examiner at the time of that examination. The veteran was also afforded a musculoskeletal examination by the VA for his low back disability in September 1993. He complained of continued pain and stiffness in his lower back. An examination disclosed no significant tenderness on palpation of the paraspinous muscles of the dorsolumbar spine. Forward flexion was to 85 degrees; extension backward was to 30 degrees; lateral flexion was to 30 degrees; and rotation was to 35 degrees. Straight leg raising was negative, bilaterally. There was no evidence of spasm in the dorsolumbar paraspinous muscles. There was no evidence of any structural deformities or atrophy. The diagnosis was, by history, chronic lumbar strain and chronic lumbar myofascitis. The VA Physicians Guide for Disability Evaluation Examinations (IB 11-56, March 1985) has established the average normal range of motion of the lumbar spine as follows: Lumbar Flexion forward 95 degrees Extension backward 35 degrees Lateral flexion 40 degrees Rotation 35 degrees The examination findings establish that the veteran has no more than slight limitation of motion of the lumbar spine. No muscle spasm was documented by the examining physician. The only evidence in support of the veteran's claim consists of his own statements. While the veteran, as a lay person, is competent to report his symptoms, he is not competent to characterize or evaluate them. Espiritu v. Derwinski, 2 Vet.App. 492. Since the examination findings clearly demonstrate only slight limitation of lumbar spine motion, with none of the symptoms necessary for a higher rating evident, the Board finds that the preponderance of the evidence is against the veteran's claim for an increased rating for his low back disability. II. An Increased Rating for a Left Knee Disability The service medical records show that the veteran was seen for complaints of left knee pain in June 1980. He stated that he first experienced the pain two weeks earlier when he was running. An examination showed no edema or effusion. Crepitus and laxity were noted. The assessments were ligament strain and chondromalacia. He was seen for similar complaints the following month. An X-ray study of the left knee disclosed no fracture. The veteran received additional treatment for left knee complaints in 1981 and 1987. On orthopedic evaluation in December 1987, the veteran reported that his knee gave way. The assessment was that the examiner suspected a lateral meniscus tear. In May 1988, he underwent a arthroscopy of the left knee. The diagnosis was minimal chondromalacia of the left patella. When he was seen approximately four weeks following the surgery, it was noted that he had no complaints, an examination disclosed swelling, but no effusion, and a full range of motion. By rating action in September 1992, the RO granted service connection for retropatellar pain syndrome of the left knee. A noncompensable evaluation was assigned pursuant to the provisions of Diagnostic Code 5257. A 10 percent evaluation may be assigned for recurrent subluxation, lateral instability or other impairment of the knee which is slight. Moderate recurrent subluxation or lateral instability warrants a 20 percent disability evaluation. Code 5257. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. When the veteran was examined by the VA in September 1993, he reported recurrent pain and stiffness of his left knee. He denied any significant swelling. An examination showed no evidence of swelling or ligamentous instability on valgus/varus stress test. Anterior and posterior drawer's tests were negative, as was Lachman's test. He had very mild crepitation over the patella through range of motion with subjective complaints of pain. An X-ray of the left knee disclosed a minor degenerative change. The diagnosis was mild chondromalacia of the left patello-femoral join, status post arthroscopic surgery of the left knee. The examiner commented that the veteran's primary and subjective complaint was pain during range of motion testing. As noted above, in order to assign a 10 percent rating for the veteran's left knee disability, it must be demonstrated that it results in slight disability. While the current examination findings reveal no swelling or instability of the left knee, positive findings include documented mild crepitation with complaints of pain on motion of the left knee and x-ray evidence of minor degenerative change of the knee. Resolving the benefit of the doubt in favor of the veteran as to whether his left knee disability results in slight impairment, the Board finds that the claim for an increased rating to 10 percent is warranted. However, the disability picture in this case, relative to the veteran's left knee, does not more nearly approximate the criteria required for the next higher rating of 20 percent. In addition, the evidence does not show that the veteran's low back or left knee disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). VA outpatient treatment records dated in December 1992 disclose that the veteran enjoyed an "[a]ctive outdoor lifestyle" and was a manager of a fast food restaurant. Thus, the evidence fails to show that his service-connected disabilities have produced marked interference with employment. The record does not show that he has required recent hospitalization as a result of his low back or left knee disorders. Accordingly, an extraschedular evaluation is not warranted. ORDER An increased rating to 10 percent for retropatellar pain syndrome of the left knee is granted, subject to the law and regulations governing the payment of monetary awards. An increased rating for chronic low back strain is denied. J. F. GOUGH 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.