Citation Nr: 0002123 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 92-00 613A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an increased evaluation for chronic muscular strain of the low back superimposed on degenerative instability with bilateral lumbosacral radiculopathies at L5 on the left and S1 on the right, currently evaluated as 40 percent disabling. 2. Entitlement to an increased evaluation chronic muscle strain of the cervical spine superimposed on some stiffness from July 1, 1993, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Associate Counsel INTRODUCTION The veteran had active service from May 1986 to February 1988. Initially, the Board of Veterans' Appeals (Board) notes that in his original claim on appeal that was remanded by the Board in October 1992, the veteran sought an evaluation in excess of 10 percent for his service-connected chronic low back strain, and a compensable rating for his chronic cervical strain. Thereafter, rating decisions of the regional office (RO) have resulted in a 40 percent evaluation for the low back disorder, effective from October 1990, and a 20 percent evaluation for the cervical spine disorder, effective from December 1996. As there is no clear indication in the record that the veteran has withdrawn either of these issues from his appeal, the Board finds that both issues continue to be proper subjects for appellate review. However, in view of the veteran's February 1998 specific written election to withdraw the issue of entitlement to a rating in excess of 20 percent for his cervical strain for the period of August 9, 1990 to June 30, 1993, the veteran's claim for increase as to his cervical spine disorder will be restricted to the period commencing from July 1, 1993. The Board also notes that the development addressed in the Board's remand of October 1992 has been completed to the extent possible, and that this claim, and all remaining issues related thereto, are ready for appellate consideration FINDINGS OF FACT 1. The veteran's low back disorder is manifested by symptoms in an unexceptional disability picture that are productive of severe but not pronounced impairment. 2. For the period of July 1, 1993 to December 12, 1996, the veteran's cervical spine disorder was manifested by symptoms in an unexceptional disability picture that were not productive of more than slight limitation of motion of the cervical spine or mild intervertebral disc syndrome; since December 13, 1996, the veteran's cervical spine disorder has been manifested by symptoms in an unexceptional disability picture that are not productive of more than moderate limitation of motion of the cervical spine or moderate intervertebral disc syndrome. CONCLUSIONS OF LAW 1. The schedular criteria for a rating in excess of 40 percent for the veteran's service-connected low back disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5285, 5286, 5289, 5292, 5293, 5295 (1999). 2. The schedular criteria for an increased evaluation for the veteran's cervical spine disorder from July 1, 1993 have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5285, 5286, 5287, 5290, 5293 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background The Board notes that the claim is well grounded and adequately developed. 38 U.S.C.A. § 5107(a); Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board again notes that the development addressed in the Board's remand of October 1992 has been completed to the extent possible, and that this claim, and all remaining issues related thereto, are ready for appellate consideration. Disability evaluations are determined by the application of a schedular rating 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. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Some factors considered include pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Degenerative arthritis, including post-traumatic arthritis, which is established by X-ray findings will be rated based on limitation of motion of the specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. The veteran's low back disability is currently evaluated as 40 percent as severe intervertebral disc syndrome under 38 C.F.R. § 4.71a, Diagnostic Code 5293, effective from October 17, 1990. Under Diagnostic Code 5293, a 10 percent evaluation is assigned for mild intervertebral disc syndrome, a 20 percent evaluation is assigned for moderate intervertebral disc syndrome with recurring attacks, a 40 percent evaluation is assigned for severe disc syndrome with recurring attacks with intermittent relief, and a 60 percent evaluation is assigned for pronounced intervertebral disc syndrome with persistent symptoms 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. Diagnostic Code 5295 provides for the evaluation of lumbosacral strain. Where there are slight symptoms only, a noncompensable evaluation is provided. Where there is characteristic pain on motion, a 10 percent evaluation is provided. Where there are muscle spasms on extreme forward bending, with loss of lateral motion unilaterally in a standing position, a 20 percent evaluation is provided. Where there are severe symptoms with listing of the whole spine to the opposite side, 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 joint space, or some of the above with abnormal mobility on forced motion, a 40 percent evaluation is provided. The veteran's cervical strain disorder is currently rated as 20 percent disabling by analogy to Diagnostic Code 5295 and under 38 C.F.R. § 4.71a, Diagnostic Code 5290, which provides for the evaluation of the cervical spine, effective from December 13, 1996. Where there is slight limitation of motion, a 10 percent evaluation is provided. Where there is moderate limitation of motion, a 20 percent evaluation is provided. Where there is severe limitation of motion, a maximum evaluation of 30 percent is provided. The appellant's low back disorder can also be evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5292, which provides for the evaluation of limitation of motion of the lumbar spine. Where limitation of motion is slight, a 10 percent evaluation is provided. Where limitation of motion is moderate, an evaluation of 20 percent is provided. When limitation of motion is severe, an evaluation of 40 percent is provided. 38 C.F.R. § 4.71a, Diagnostic Code 5292. Additionally, the Board acknowledges that the service- connected disabilities include a disability that is normally, in the absence of degenerative disc disease (DDD), rated based on limited range of motion, that is, degenerative joint disease (DJD). 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. A 40 percent evaluation is the maximum rating provided for severe limitation of the lumbar spine under 38 C.F.R. § 4.71a, Diagnostic Code 5292. A 40 percent evaluation is also the maximum rating provided under 38 C.F.R. § 4.71a, Diagnostic Code 5295 for severe lumbosacral strain with listing of the whole spine to the opposite side, a positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. However, in view of the fact that 40 percent is the maximum evaluation available under these Diagnostic Codes, once a 40 percent evaluation is assigned, these Codes would not afford the veteran an alternative basis for an increased evaluation. It has been held that even when the Board erred in failing to consider functional loss due to pain, if it did so when the current rating was the maximum disability rating available for limitation of motion, remand was not appropriate. Johnston v. Brown, 10 Vet. App. 80 (1997). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999, hereafter "the Court") has held that where a Diagnostic Code is not predicated on limited range of motion alone, the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1998), with respect to pain, do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). However, General Counsel for the Department of Veterans Affairs (VA) has issued an opinion in which it was held that 38 C.F.R. § 4.71a, Diagnostic Code 5293, intervertebral disc syndrome, involves loss of range of motion because the nerve defects and resulting pain associated with injury to the sciatic nerve may cause limitation of motion of the cervical, thoracic, or lumbar vertebrae. Therefore, pursuant to Johnson v. Brown, supra, 38 C.F.R. §§ 4.40 and 4.45 must be considered when a disability is evaluated under this Diagnostic Code. VAOPGCPREC 36-97 (Dec. 12, 1997). This opinion further noted that in evaluating a veteran's disability under Diagnostic Code 5293 based upon symptomatology which includes limitation of motion, the rating schedule indicates that consideration must be given to 38 C.F.R. §§ 4.40 and 4.45, notwithstanding the maximum rating available under a different Diagnostic Code. Section 4.14 of title 38, Code of Federal Regulations, states that the evaluation of the same disability or manifestation under various diagnoses is to be avoided. See also VAOPGCPREC 23- 97, paragraph 3. The Court has also indicated that the same symptomatology for a particular condition should not be evaluated under more than one Diagnostic Code. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Section 4.7 of title 38, Code of Federal Regulations, states that, "[w]here 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 required for that rating." The above-noted General Counsel Opinions are binding on the Board which is constrained to follow their holdings. 38 U.S.C.A. § 7104(c) (West 1991). 38 C.F.R. § 4.71a, Diagnostic Code 5285 applies to residuals of fracture of the vertebra and provides a 10 percent additional evaluation in cases with definite limited motion or muscle spasm and demonstrable deformity of a vertebral body. As there is no competent medical evidence in the record of a demonstrable deformity of a vertebral body of the cervical or lumbar spine, the Board finds that this Diagnostic Code is not applicable to the veteran's cervical spine or low back disability. Clearly, there is no ankylosis of the cervical and lumbar spine, and thus, 38 C.F.R. § 4.71a, Diagnostic Codes 5286, 5287, and 5289 are also not applicable. A review of the history of these disabilities shows that service connection for both the veteran's low back and cervical spine disorders was granted and each disorder assigned a 10 percent rating, effective February 1988, based on service medical records and VA examination. Service medical records revealed that the veteran was involved in a motor vehicle accident in July 1986, as a result of which he complained of neck and lower back pain. He was also noted to have complained of lower back pain in February 1987, with some radiation into the left buttock but with no hard radiographic finding. It was indicated that he was seen thereafter a number of times complaining of lower back pain. VA examination in August 1988 revealed that the veteran reported that his lower back was chronically bothersome. Examination of the back revealed that the veteran could flex forward and reach to 12 inches from the floor with some back pain. Lumbar bending was 20 degrees right and left. The low back and buttock areas were nontender and neck motion was slightly impaired but not painful. Thereafter, in response to a subsequent claim for an increased evaluation as to his service-connected disabilities, the veteran was again examined in August 1990, at which time he described his lower back as painful, with pain radiating into both buttocks. Examination of the lumbar spine revealed flexion to 85 degrees, extension to 10 degrees, rotation of 30 degrees bilaterally, and lateral extension to 10 degrees bilaterally. There was also mild lumbosacral tenderness. On examination of the neck, sensation and intrinsic muscle functions were intact in both hands, and the neck and trapezius muscle area was nontender. The examiner reported the veteran having lower lumbar back pain, but that the cervical strain was well-healed and asymptomatic. Consequently, in a rating decision in November 1990, while the RO found that the veteran had characteristic pain on motion in order to maintain a 10 percent evaluation, the most recent VA examination revealed that his cervical strain disability was manifested by less than slight disability, and that the veteran was therefore entitled to a reduction of the evaluation of this disability to noncompensable, effective from August 1990. An April 1991 private medical report from M. O. Group reflects complaints of pressure grinding in the lower back and numbness in the buttocks. The veteran reported a history of a back injury during a parachute jump while in the military, and that he was now experiencing pain in the low back with any of his usual activities. Examination revealed that the veteran was in moderate discomfort and that there was an antalgic aspect to the right. Toe and heel walk increased pain and full squat and rise produced less discomfort. There was also some decreased lumbar lordosis most likely secondary to painful spasm. Increased pain was noted with any forward flexion, and the veteran was able to flex forward by supporting his weight with his hands on his legs and knees. Extension was negative 20 degrees and there was marked discomfort with sideward rotation and bending. There was 3+ tenderness over the L1 area and slight tenderness of the paraspinous musculature at the same level with positive muscle spasm. Neurological examination revealed symmetrical knee jerks at 2+ and asymmetrical ankle jerk with 2+ on the left and absent on the right. X-rays of the lumbar spine were indicated to be unremarkable. The diagnosis was recurrent acute and chronic strain of the lumbar spine. May 1991 private physical therapy records from H. W. reflect that the veteran reported complaints of pain in the lumbosacral area that began while he was a paratrooper in the military in 1987. The veteran further reported periodic episodes of severe pain over the previous four years and that he had reinjured himself three to four weeks earlier. Over that period he had severe pain and stiffness in his lumbosacral area with complaints of radiating symptoms into the left buttocks and somewhat into the left anterior thigh. On observation, the veteran carried his lumbosacral spine quite stiffly and was guarded in the entire low back area. Tight hamstrings were noted on the left during straight leg raising at approximately 70 degrees and there was also tightness in the quadriceps and hip flexor musculature pulling his low back into a flattened position. Extension was indicated to be reduced by approximately 90 percent with complaints of pain at L3, 4 and 5 central; lateral flexion to the right was reduced approximately 50 to 60 percent with complaints of pain as mentioned; lateral flexion to the left was reduced by approximately one third; forward flexion was reduced by approximately one half with complaints of pain; rotation with extension both left and right was reduced approximately 50 to 60 percent with complaints of pain as mentioned. The veteran indicated that his pain was of a stabbing nature and had now become like a deep toothache feeling in the center of the spinal column. Strength in the lower extremities was found to fall within normal limits, and the only movement found to increase pain with resisted motion was adduction of the left and right hips and abduction of the right and left legs. The diagnosis was lumbosacral sprain/strain, and the goal included the reduction of the flexion position of the lumbosacral spine and to increase lumbar lordosis and curve reversal. At the end of May 1991, it was noted that the veteran had increased flexibility and mobility. Progress notes from M. O. Group for the period of May to July 1991 reflect that at the end of May 1991, further evaluation for lumbar strain revealed that the veteran reported some increasing pain with sneezing, but that he had returned to his baseline degree of pain with greater looseness. It was also noted that a corset had helped, particularly after therapy. Examination of the lumbar spine revealed that tilting to the right caused moderate pain. Flexion was restricted to 60 degrees with significant pain, and extension was restricted to 30 degrees with significant pain. The impression was that the veteran had shown satisfactory improvement but was still symptomatic. In July 1991, the veteran reported a few minor episodes of low back pain, but that these resolved once he got back into therapy. Physical examination revealed that the veteran was moving comfortably and demonstrating good range of motion without pain. The impression was satisfactory resolution of lumbar strain, with some chronic residual. A progress note from H. W., dated in July 1991, indicates that the veteran was able to move through full range of motion in the lumbosacral spine and was feeling minimal to no pain. It was noted that the veteran was being released from formal physical therapy in the clinic unless there was exacerbation or referral by his physician. Private progress notes from M. O. Group, dated in April 1992, reflect that the veteran presented with recurrence of the lumbar strain, stating that the pain with rotation of the lumbar spine was much more of a problem than it had ever been in the past, in addition to pain with flexion and extension. Onset reportedly began two weeks earlier, with no antecedent accident or change of activity. Since his treatment in the previous summer, he had had intermittent episodes of pain but nothing as severe or long lasting. Examination of the lumbar spine revealed that the veteran was markedly restricted in his motion and quite painful. The impression was recurrent strain of the lumbar spine, and that since the symptoms had recurred and he had never been symptom free, the examiner believed that there might be more involved. In a letter directed to the VA by the M. O. Group, dated in April 1992, it was indicated that the veteran would benefit from evaluation with physical medicine and rehabilitation. A May 1992 medical report from Dr. G. reflects that he examined the veteran in connection with physical medicine and electrodiagnostic evaluation regarding his chronic low back and left lower extremity difficulties. At this time, the veteran reported that his problems began with parachute jumping in the Army, and specifically in a night jump reaching for the ground while landing with transfer of the reactive force to the extended low back area. There was also a history of possible compression fracture and degenerative disc changes, and the veteran remembered a diagnosis of facet syndrome. It was also noted that the veteran actually received a medical discharge from the Army because of his back problem. Although he continued to be very active and athletic, he had had to cut down somewhat because of his intermittent and constant problems. The veteran described pain in the low central back radiating into the left hip/buttock area. This occasionally occurred on the right side, and there was pain down in the left posterolateral thigh to the knee. He reported numbness and tingling in a similar distribution in the buttock region on the left. He noted that coughing and sneezing increased the pain and he had to support himself during these activities. His problems tended to be fairly episodic with an underlying and more lower level constant pain. The episodes would last anywhere from one to three weeks, and more recently, he noted increased severity, frequency, and duration of the episodes. The veteran indicated that he had a lumbosacral corset which he wore in the morning and at night. Throughout the day the veteran wore a Neoprene belt. On physical examination, the veteran had tenderness on the left greater than the right lumbosacral paraspinal and left hip musculature. Trigger points, muscular rigidity, and dermatographia were all noted in the left hip and lower lumbosacral area. No muscular spasm was noted. He had significantly positive quadrant loading on the left greater than the right sides. Lumbosacral range of motion revealed 70 degrees of flexion (hands on thighs for support), 0 degrees extension (very painful in attempting this), and 20 degrees of bilateral lateral bending. Deep tendon reflexes were 2+ at the knees and slightly asymmetric at the ankles with the right being 1+ and the left being trace (with enhancement). Straight leg raising was negative in a seated position, but there was moderate tightness of the hamstrings bilaterally. Gait was found to be normal, and he was able to toe and heel walk without pain or weakness. No atrophy, fasciculations, or deformities were seen in either lower extremity. On electrodiagnostic evaluation, Dr. G. could delineate no specific neurophysiologic abnormalities to correlate with his difficulties. Left lower extremity electromyogram (EMG) was interpreted to reveal no acute, chronic, or old changes of the muscle cell membranes or motor units. Left lumbosacral paraspinal EMG was negative, as was bilateral H reflex examination. The impression was chronic lumbosacral facet syndrome with intermittent acute exacerbations-currently in one with most of the pain complaints in the left posterolateral thigh probably a referral from the facet syndrome, no left lumbosacral radiculopathy, plexopathy, or other neurophysiologic abnormality identified by electrodiagnostic evaluation, chronic myofascial/muscular low back and left greater than right lower extremity pain syndrome secondary to above, and that the above problems were believed to be secondary to the veteran's service-connected injury while parachuting. Medical records from C. Physical Therapy for the period of June to August 1992 reflect that in June 1992, the veteran reported that his most recent aggravation of his service injury occurred six weeks earlier. Specifically, the veteran reported rather continual, chronic pain in the low back that increased in intensity with activities and seemed to be separate from the pain in his leg. These pains had been rather persistent before his latest aggravation, but at a milder level. He further reported left lower extremity tingling and numbness that extended from the sacroiliac through the gluteals and down the side of the leg to the knee that was intermittent. Physical examination revealed active lateral flexion of 20 degrees on the right and 15 degrees on the left, rotation of 14 degrees on the right and 23 degrees on the left, flexion of 32 degrees, extension of 23 degrees, hamstrings at negative 58 degrees on the right and negative 60 degrees on the left, quadriceps at 14 degrees on the right and 18 degrees on the left, hip flexion of 36 degrees on the right and 124 degrees on the left, and internal rotation of the hip of 18 degrees on the right and 20 degrees on the left. The examiner was unable to test the psoas muscle as examination elicited a rather immediate increase in pain both anteriorly and in the lumbar spine, although the examiner was able to slightly increase lumbar rotation passively. Palpatory evaluation revealed that although there was little surface tenderness, the veteran was quite tender deep in the gluteus maximus, the lumbar paraspinals, the left much greater than the right deep hip external rotator muscles, and the psoas and pectineus muscles anteriorly. The assessment was the veteran's symptoms appeared to have a strong correlation to the very tight and inflexible muscles and soft tissues seen on evaluation. It was further noted that the veteran presented with pain, decreased range of motion, soft tissue muscular hypertonus and deep tenderness, aggravating postures, probable poor pacing techniques and little application of needed independent self-care techniques. The goals included decreased pain and increased active mobility. A medical report from C. Physical Therapy, dated in August 1992, reflects that the veteran's symptoms were continuing but less than before. The veteran also reported more flexibility and decreased problems with most activities of daily living. Objectively, the veteran was noted to exhibit much less guarding and to have increased quality of movement with ambulation and most kinetic activities. Palpatory examination revealed decreased tenderness and muscular tension although his fascial tightness was still quite prevalent. Lumbar area lateral flexion was at 22 degrees on the right and 21 degrees on the left, rotation was at 32 degrees on the right and 35 degrees on the left, flexion was at 32 degrees, extension was at 20 degrees, hamstrings were at 25 degrees on the right and at negative 42 degrees on the left, hip flexion was at 146 degrees on the right and 142 degrees on the left, hip internal rotation was at 37 degrees on the right and 34 degrees on the left, and quadriceps (measured in prone lying heel to gluteals in inches) was 12 inches on the right and at 13 inches on the left. It was noted that in the initial evaluation, quadriceps measurement was given in degrees when it should have been given in inches, and that right hip flexion was listed as 36 degrees when it should have been 136 degrees. The psoas was found to becoming less tight bilaterally with the right significantly looser than the left. Overall, the veteran was found to have increases in range of motion, decreases in muscular tension and general soft tissue hypomobility, and increased body mechanics and activities of daily living movements. In October 1992, the Board remanded issues of entitlement to an evaluation in excess of 10 percent for chronic low back pain and a compensable rating for chronic cervical strain for further procedural and evidentiary development. A July 1993 letter from the veteran to the RO described the effect the veteran's back had on his daily activities with the veteran indicating that his back was often so rigid and sensitive, that it required hours or even days of extra slow motion, exercise and physical therapy just so he could sit upright, drive or walk. Generally he indicated that he was able to manage the usual everyday pain and discomfort associated with his back disorder, but there were times when his condition dictated his every action, and the pain, discomfort and basic mobility had steadily become worse over the previous several years. VA spinal examination in August 1993 revealed that the veteran was a paratrooper in 1987, and that after jump school, he began to have problems with his low back. These problems were a mild, dull, aching pain in his lower back, occasionally radiating into both hips and thighs, and following a night jump in 1987, he noticed severe low back pain. Thereafter, he underwent a computed tomography (CT) scan in service in addition to physical therapy and medication. The veteran was given a medical discharge for his low back problems and since that time, he had had complaints of low back pain which was chronic. He reported that he had a constant, dull, aching low back pain that radiated into both hips. With exertion or vigorous exercise, the pain became worse, and radiated into both thighs with tingling paresthesias over the lateral aspects of both thighs and paravertebral pain which radiated through the spine and occasionally resulted in a stiff neck. While previously an athletic and active man, he had curtailed his endeavors to casual bicycling. He reported that he had been hospitalized for intractable low back pain twice in the previous three years, once in 1991, and once in 1992. After both hospitalizations, he underwent to episodes of physical therapy lasting three months each. Neurological examination of the lower extremities revealed that the left glutei were 4+/5, and that otherwise, power was 5/5 throughout. The right ankle jerk was absent and the left was 1+. Examination of the back revealed prominent tenderness to palpation of both sacroiliac joints and mild tenderness to palpation over the spinous process in the lumbosacral region. Straight leg raising was positive with radiation into the left lumbosacral spine. Hip flexion and external rotation elicited prominent complaints, greater than straight leg raising. X-rays of the lumbosacral spine were interpreted to reveal significant disc space narrowing and bony spurring suggestive of DJD in the lumbosacral spine. The impression was DJD involving the lumbosacral spine, sacroiliac joints and probably hip joints, and probable right S1 radiculopathy and possible left L5 radiculopathy. An addendum to this report reflects that magnetic resonance imaging (MRI) findings were consistent with root impingement at L5 and/or S1, and that EMG/ nerve conduction velocity (NCV) studies indicated minimal degeneration at L5-S1 on the right with chronic demodeling at the L5 level on the left. The diagnosis was bilateral lumbosacral radiculopathies at L5 on the left and S1 on the right. An August 1993 VA joints examination revealed a history of a motor vehicle accident before the service in 1983, after which the veteran healed without residuals. He did experience neck and back symptoms from the accident in 1986 and the back worsened following a parachute incident in 1988. Activities were recently limited by back pain and then- current symptoms included some pain at the neck and left trapezius muscle, severe chronic pain at the lower lumbar back, buttock pain bilaterally, and some occasional numbness in both thighs. Sneezing was bothersome to the back pain. His most bothersome problem in the previous three months was his back followed by his left shoulder and neck. Examination at this time revealed some mild limping with the left leg which was attributed by the veteran to his back pain. Percussion of the flexed spine was painful in the midline at L1 and L5 and back motion allowed flexion of 15 degrees, extension of 25 degrees, rotation of 30 degrees bilaterally, and lateral bending of 30 degrees bilaterally. There was moderate pain with these movements, and flexion was limited by severe pain if he went further. Calf circumference was equal and straight leg raising was easily tolerated to 80 degrees. There was no tenderness of the lumbar spine at this time. Past VA radiology reports were noted to indicate some facet degeneration of the lumbar spine in 1988 and some disc narrowing at L5-S1 in 1990. In the 1990 film, the examiner commented that he believed the disc narrowing was much worse than the radiologist described. The assessment was chronic pain in the thoracic and lumbar spine mostly at the lower lumbar spine, and diagnosed as chronic muscular strain superimposed on degenerative instability, and chronic back pain. A March 1994 rating decision increased the evaluation for low back strain to 20 percent, effective from October 17, 1990, and denied a compensable rating for cervical strain. VA spine examination in December 1995 revealed that the veteran reported a history of injuring his neck and back in a parachuting accident in 1987. At this time, he complained of constant low back pain which was described as moderate, radiating down both legs, the left greater than the right. The pain was constant in the left leg with radiation to the toes of the left foot. The right leg pain was intermittent and radiated to the knee. He experienced numbness and tingling in both legs in the distribution of the pain and indicated that both legs were weak. His symptoms were noted to increase with any strenuous activity and he was unable to walk even short distances. Sitting also increased his discomfort. His exercise was limited to swimming and bicycling. Physical examination revealed mild bilateral paraspinal muscle spasm on palpation, and there was also tenderness over the paraspinal musculature in the lumbosacral area. His range of motion revealed forward flexion of 80 degrees, lateral bending of 20 degrees bilaterally, extension of 10 degrees, and rotation of 35 degrees, and the veteran experienced low back pain with these movements. Deep tendon reflexes were +2/4 at the knees and ankles. Straight leg raising was 45 degrees bilaterally, with low back pain on the tested side. Sensory and motor examination was +5/5 throughout. The diagnosis was degenerative disc disease of the lumbosacral spine. A January 1996 rating decision continued the 20 percent evaluation for low back strain. VA outpatient records for the period of July to December 1996 reflect that in December 1996, the veteran complained of problems with his neck, which was noted to have been worse over the previous three years. He noted morning stiffness and increasing pain with range of motion of the neck, and there would also be increasing pain with chopping wood or riding a bike. It was also noted that the veteran had a history of low back pain for the previous six to seven years, and compression of the lumbar area. Physical examination revealed that the range of motion of the cervical spine was 45 degrees to the right and left. Flexion/extension was approximately 70 percent of normal, as was lateral bending to the right and left. A review of X-rays revealed mild degenerative arthritis with spurring, with no foraminal encroachment in the mid-cervical spine. The assessment was degenerative arthritis of the neck, with muscular component. The veteran was provided a soft cervical collar for his neck pain when the stiffness and pain became severe. VA outpatient records from March 1997 reflect that the veteran complained of back and neck pain, and was prescribed the use of a transcutaneous electrical nerve stimulation (TENS) unit. An April 1997 CT scan of the lumbosacral spine revealed findings of moderate diffuse circumferential disc protrusion at the L3-4 and L4-5 levels, which compressed the thecal sac somewhat, but did not cause any nerve root compression. Bilateral facet disease was also noted at the L5-S1 level, left worse than the right, and all of the above findings were indicated to be essentially unchanged from the MRI performed in August 1993. A June 1997 rating decision increased the evaluation for the veteran's cervical strain disorder to 10 percent, effective from August 9, 1990. A July 1997 VA outpatient record reflects the veteran's history of cervical DJD and some lumbar spine disease related to injuries suffered while in the service as a paratrooper. It was noted that he had been originally evaluated at this clinic in March 1997, and evaluated as having degenerative disease with some paraspinous neck muscle spasm at that time. The veteran was prescribed a TENS unit and had been using it for his back complaints. It was not as helpful for his neck. Warmer weather helped the pain, but motorcycle and bicycle riding would exacerbate his pain episodically. He was also using a soft collar around the house. Physical examination revealed that movement of the neck was limited to approximately 45 degrees rotation to the right and left. Neck flexion and extension were approximately 60 percent of normal and upper extremity reflexes were plus 1 and symmetric. He had no evidence of muscle spasm and was noted to have excellent muscle bulk of the trapezius muscles. The assessment was mild DJD of the neck, which was symptomatically improved on a regimen including a nonsteroidal muscle relaxer, local application of heat and whirlpool. In a February 1998 written statement in support of his claim on appeal, the veteran indicated that his neck and back pain had become much more noticeable and consistent since spring of 1993. VA spine examination in February 1998 revealed that the veteran reported that his neck and back pain began in the military, and that one year after separation, the neck pain had improved but he was still having back pain. When seen in 1990 by the examiner, his neck was okay, however, neck symptoms reportedly returned in about 1993. Current symptoms consisted of pain in the neck and both trapezius muscles, pain in the upper and lower back, worst on the low back, and thigh, knee, and left lower leg and foot numbness. The most bothersome problem in the previous three months was noted to be neck and back pain. Physical examination revealed some limping, which he attributed to pain, and that the veteran could flex forward and reach to the lower tibia. Percussion of the flexed spine revealed some pain at L5 and back motion permitted flexion of 95 degrees, extension of 20 degrees, rotation of 40 degrees bilaterally, and lateral bending of 40 degrees bilaterally. There was some moderate pain associated with these movements. The entire spine was nontender, and reflexes were normal at the knees and ankles. Calf circumference was equal and straight leg raising was easily tolerated to 80 degrees. Neck motion allowed rotation of 60 degrees on the right and 50 degrees on the left, lateral bending of 30 degrees bilaterally, flexion of 30 degrees, and extension of 25 degrees. There was some pain with these movements. X-rays of the neck were interpreted to reveal facet joint degeneration at C4-5, including degeneration at the joints of Luschka. There was no visible disc narrowing. The back was noted to have had a MRI in 1993, and this showed some small disc protrusion at L4-5 and degeneration at multiple levels. Previous lumbar X-rays in 1990 were noted to reveal disc degeneration at several levels. It was noted that the neurology clinic believed that there was evidence of some lumbar nerve root irritation in about 1993 and their studies included an EMG. It was further noted that this had never turned into a really definite lumbar nerve root problem, however, rheumatology consultation in 1996 mentioned the degenerative changes in the neck and "muscular component." The assessment included chronic pain in the neck diagnosed as chronic muscular strain superimposed on some degenerative stiffness with cervical nerve roots found to be okay, chronic back pain involving the thoracic and lumbar areas with current symptoms diagnosed as chronic muscle strain superimposed on degenerative instability, with neurology finding some lumbar nerve root irritation but nothing found on current examination, and lower extremity symptoms associated with low back mainly found to involve numbness and diagnosed as some probable mild lumbar nerve root irritation, plus some probable peripheral nerve irritation, plus some probable referred distress from the low back. The February 1998 examiner commented that the degenerative changes in the back and neck probably did not result from muscular strain in the military. However, the lumbar spine was noted to have shown definite degenerative problems when seen by this examiner in 1990, which was shortly after the veteran left the military, so the examiner believed that the veteran probably had some degeneration in the military, whether military radiology mentioned it or not. As the veteran was also exhibiting some definite degenerative changes in the neck by 1996, the examiner believed that he probably would have shown some neck degeneration on sophisticated studies such as a MRI even in the military. It was therefore this examiner's opinion that degenerative changes in the lumbar spine existed in the military and were worsened by an injury in the military. It was also his opinion that degenerative changes were also present in the neck, but that there were not enough radiologic studies to confirm this. With respect to limitation related to weakness, easy fatiguing, and impaired coordination, it was the examiner's opinion that a symbolic loss of motion to represent these subjective symptoms would be a 20 percent decrease in the motion of the neck and back. The examiner further indicated that a symbolic loss of motion to represent the veteran's reported monthly flare-ups would be a 15 percent decrease in the motions of the neck and back. VA February 1998 X-rays of the cervical spine were interpreted to reveal that facet joints appeared essentially normal. Obliques were not optimally positioned but suggested at least a moderate neural foraminal narrowing, greater on the right side. The impression noted that neural foramina were not optimally demonstrated on these oblique views and that a better positioned examination might be useful to reassess neural foramina. A private MRI of the cervical spine in April 1998 revealed that the veteran reported a history of chronic neck pain with the recent onset of tingling in the left arm. The conclusion was that there was right-sided disc and spur combination at C3-4, and that the veteran's left-sided symptoms might be due to foraminal narrowing at either C4-5, C5-6, or C6-7. A private CT scan of the lumbar spine in April 1998 reflected a history of low back pain for months with radiation of pain to both the left and right legs. The impression was six non- rib-bearing lumbar vertebral bodies consistent with lumbarization of S1, broad-based bulge and focal disc protrusion at L4-L5 and L5-S1, unable to exclude possible bilateral nerve root impingement at these levels, and in particular, there was left neural foraminal narrowing at L5- S1 and thecal sac effacement at these levels, mild focal disc protrusion posteriorly and centrally at S1-S2 and neural foraminal narrowing on the left, unable to rule out possible left nerve root impingement at this level, and bilateral facet arthropathy at L5-S1 also noted. In an addendum report with respect to the April 1998 CT scan of the lumbar spine, the April 1998 study was compared with the previous CT scan of April 1997, and it was noted that the more recent study revealed six non-rib-bearing lumbar vertebral bodies, consistent with lumbarization of S1, and this was evidently not noted on the prior CT from the VA hospital dated April 1997. It was further noted that what was labeled as the level of L4-L5 on the study of April 1998 was labeled as "L3-L4" on the study from the VA hospital dated April 1997. At this level, both disc bulge and disc protrusion was found to be probably similar to what was previously documented, comparing the two studies, and possible bilateral nerve root impingement could not be excluded. The level labeled "L5-S1" on the April 1998 CT was labeled "L4-L5" on the VA study of April 1997; again at this level, it was noted that there was marked broad-based disc bulge and focal disc protrusion, which was probably similar, comparing the two examinations. Again, it was noted that there might be bilateral nerve root impingement at this level as described on the original report from April 1998. The April 1998 addendum report further noted that in the April 1998 study, the level labeled "S1-S2" was compared with what was labeled "L5-S1" on the April 1997 study, and found to again be suggestive of mild focal disc protrusion posteriorly centrally, and neural foraminal narrowing on the left, which might have progressed since the April 1997 CT scan. Again, the examiner was unable to exclude the possibility of nerve root impingement at this level. A March 1999 VA emergency care record reflects that the veteran reported a history that his back "went out," that he had a history of chronic neck and back pain secondary to an injury approximately 10 years earlier, and that the pain had increased over the previous month. When the veteran recently stood after sitting on a couch, his legs became weak for a period of ten to fifteen seconds. He also had been experiencing intermittent numbness down the lateral aspects of his thighs. The pain was indicated to be mainly in the lower back with radiation into his hips, the pain greater on the right. A CT scan of April 1997 was noted to reveal disc protrusion at L3-4/L4-5, which compressed the thecal sac without root compression. Facet disease was also demonstrated at the L5-S1 level. Cervical spine X-rays in December 1996 were interpreted to reveal mild degenerative disc changes. Physical examination at this time revealed that the veteran walked into the examination room with a cane, and had pain to palpation over the spine at about the L4 level down. There was also muscle spasm lateral to these areas. Deep tendon reflexes were 2+ in all extremities and strength was 5+ in the lower legs bilaterally. Pain was noted with straight leg raising to about 30 degrees bilaterally. Pain was also noted to radiate in the back and into the hips bilaterally, the right greater than the left. There was no radiation below the buttocks. The neurology clinic requested that the veteran be seen at that clinic within the next one to two months. The diagnosis at this time was discopathy with radiculopathy. A June 1999 rating decision increased the evaluation for chronic muscular strain of the low back superimposed on degenerative instability with bilateral radiculopathies at L5 on the left and S1 on the right, to 40 percent, effective October 17, 1990. The evaluation for chronic muscle strain of the cervical spine superimposed on some degenerative stiffness, was increased to 20 percent, effective from December 13, 1996. Analysis The Low Back Disorder The Board has reviewed the evidence related to the veteran's low back disability since October 1990, and notes that in order to assign an evaluation in excess of 40 percent for this period, there would have to be evidence of symptoms that were productive of pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, an absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. In this regard, while the Board is in agreement with the RO's most recent determination that the veteran's low back symptoms were compatible with severe intervertebral disc syndrome and a 40 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5293, the veteran's symptoms throughout this period exemplified by intermittent episodes of radiculopathy and/or absent or diminished ankle jerk were at best indicative of possible nerve root irritation, and did not constitute the type of pronounced neurological symptoms to support the highest evaluation of 60 percent under Diagnostic Code 5293. As the veteran's 40 percent evaluation is the maximum rating available under Diagnostic Codes 5292 and 5295, neither of these Codes would afford a basis for an increased rating for this disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5292 and 5295. The Board has also considered that the veteran has episodes of radiating leg pain and that DJD is also associated with his low back disability, however, rating the veteran's disability on the basis of nerve damage or DJD would not result in an evaluation of higher than 40 percent, inasmuch as DJD is rated based on limitation of motion, and a 40 percent evaluation is the highest schedular rating available for lumbar spine limitation of motion, absent ankylosis (which is clearly not shown). 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5292. In addition, the Board finds that the primary basis for the assignment of a 40 percent evaluation from October 1990 is due to findings of intermittent radiating leg pain, absent or diminished ankle jerks, numbness of the extremities, and some limitation of motion, such that a separate rating for DJD or nerve damage would certainly result in a reduction of the 40 percent evaluation currently assigned. A separate compensable rating for nerve damage or DJD of the lumbar spine during this period would clearly constitute pyramiding, if limitation of motion was considered for purposes of both ratings. 38 C.F.R. § 4.14. In addition, the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59, however, while the Board again does not doubt the presence of pain during this period, the Board finds the veteran's low back pain to be anticipated and compensated within the parameters of Diagnostic Code 5293, and the evaluations assigned by this decision. The Board has considered a higher rating for this disability under 38 C.F.R. § 3.321, and finds that the veteran's disability was not manifested by symptoms that were so unusual or exceptional, with such related factors as frequent hospitalization and marked interference with the veteran's employment, as to prevent the use of the regular rating criteria. 38 C.F.R. § 3.321. The Cervical Spine Disorder from July 1, 1993 First, with respect to entitlement to an increased evaluation for the period of July 1, 1993 to December 13, 1996, the Board initially notes that there is no medical evidence of actual treatment for neck complaints, and that the level of disability associated with the veteran's cervical spine disorder for this period is therefore left to consideration of a report of neck pain in August 1993, a report of neck complaints for three years prior to 1996 by the veteran in December 1996, and the more recent medical opinion linking degenerative changes in the cervical spine to the veteran's period of service. Consequently, based on the lack of contemporaneous evidence of treatment for neck pain during this period, the Board finds that any rating would have to be primarily based on the acceptance of the veteran's report of pain, and that this is appropriately measured by a 10 percent evaluation for slight limitation of motion under 38 C.F.R. § 5290. As there is no evidence of limitation of motion during this period or intervertebral disc syndrome productive of more than mild impairment, there is no basis for a rating in excess of 10 percent during this period for this disability under either 38 C.F.R. § 5290 or 38 C.F.R. § 5293. As for the period following December 13, 1996, the Board is in agreement with the RO's position that the clinical evidence of increased symptoms and treatment together with diagnostic findings of disc syndrome warranted a higher evaluation of 20 percent. The question that remains is whether the additional medical evidence further supports an evaluation in excess of 20 percent from December 1996. Although not specifically considered by the RO, the Board again notes that under 38 C.F.R. § 4.71a, Diagnostic Code 5293, a 40 percent evaluation is assigned for severe disc syndrome with recurring attacks with intermittent relief, and a 60 percent evaluation is assigned for pronounced intervertebral disc syndrome with persistent symptoms 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. The veteran's cervical spine disorder can also be rated under 38 C.F.R. § 5290, which provides a maximum rating of 30 percent where there is severe limitation of motion, and it should again be noted that DJD is rated based on limitation of motion of the affected joint under Diagnostic Codes 5003, 5010. VA outpatient consultation in December 1996 revealed that the veteran complained of increasing pain with range of motion of the neck, and there would also be increasing pain with chopping wood or riding a bike. Physical examination revealed that the range of motion of the cervical spine was 45 degrees to the right and left, and flexion/extension was approximately 70 percent of normal, as was lateral bending to the right and left. A review of X-rays revealed mild degenerative arthritis with spurring, with no foraminal encroachment in the mid-cervical spine. The assessment was degenerative arthritis of the neck, with muscular component. The veteran was provided a soft cervical collar for his neck pain when the stiffness and pain became severe. Thereafter, a July 1997 VA outpatient record reflects that movement of the neck was limited to approximately 45 degrees rotation to the right and left. Neck flexion and extension were approximately 60 percent of normal and upper extremity reflexes were plus 1 and symmetric. He had no evidence of muscle spasm and was noted to have excellent muscle bulk of the trapezius muscles. The assessment was mild DJD of the neck, which was symptomatically improved on a regimen including a nonsteroidal muscle relaxer, local application of heat and whirlpool. VA February 1998 examination then revealed that symptoms consisted of pain in the neck and that neck motion allowed rotation of 60 degrees on the right and 50 degrees on the left, lateral bending of 30 degrees bilaterally, flexion of 30 degrees, and extension of 25 degrees. There was some pain with these movements. X-rays of the neck were interpreted to reveal facet joint degeneration at C4-5, including degeneration at the joints of Luschka. As the veteran was also exhibiting some definite degenerative changes in the neck by 1996, the examiner believed that he probably would have shown some neck degeneration on sophisticated studies such as a MRI even in the military. It was therefore this examiner's opinion that degenerative changes were present in the neck were present in the military, but that there were not enough radiologic studies to confirm this. With respect to limitation related to weakness, easy fatiguing, and impaired coordination, it was the examiner's opinion that a symbolic loss of motion to represent these subjective symptoms would be a 20 percent decrease in the motion of the neck and back. The examiner further indicated that a symbolic loss of motion to represent the veteran's reported monthly flare-ups would be a 15 percent decrease in the motions of the neck and back. A March 1999 emergency care record reflects a history of neck and back pain for the previous 10 years, but no complaints or treatment for neck pain at this time. Thus, since December 13, 1996, the Board finds that even with the additional evidence of limitation of cervical motion with pain, in view of the lack of objective neurological manifestations referable to the veteran's cervical spine disability, the rating of 20 percent from December 13, 1996 is consistent with moderate limitation of motion under 38 C.F.R. § 5290 or moderate intervertebral syndrome under 38 C.F.R. § 5293. The Board does not, however, find that the manifestations of this disability since December 13, 1996 constituted severe motion limitation or severe or pronounced intervertebral disease so as to justify a higher rating under either Diagnostic Code 5290 or 5293. As was the case with the veteran's low back disability, were the Board to grant a higher or separate rating for nerve damage or arthritis, this would not confer the benefit sought on appeal, as the veteran's X-ray findings of degenerative changes and functional motion limited by pain together support the 20 percent evaluation from December 13, 1996. The Board has also considered a higher rating for this disability under 38 C.F.R. § 3.321, and finds that the veteran's cervical spine disability was not manifested by symptoms that were so unusual or exceptional, with such related factors as frequent hospitalization and marked interference with the veteran's employment, as to prevent the use of the regular rating criteria. 38 C.F.R. § 3.321. ORDER Entitlement to an evaluation in excess of 40 percent from October 17, 1990 for chronic muscular strain of the low back superimposed on degenerative instability with bilateral lumbosacral radiculopathies at L5 on the left and S1 on the right, is denied. Entitlement to an increased evaluation for chronic muscle strain of the cervical spine superimposed on some stiffness from July 1, 1993, is denied. Richard B. Frank Member, Board of Veterans' Appeals