Citation Nr: 0001454 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 98-16 509 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased evaluation for a low back disability, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service ATTORNEY FOR THE BOARD Michael F. Bradican, Associate Counsel INTRODUCTION The veteran served on active duty from August 1955 to May 1976. This case arises before the Board of Veterans' Appeals (Board) on appeal from a rating decision of July 1997, from the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. The veteran was granted service connection for a chronic low back disability in July 1997. He disagreed with the 20 percent evaluation assigned by that rating decision. 3. The current medical evidence of record shows that the veteran's low back disability is manifested by mildly diminished range of motion, complaints of constant moderate pain, and some loss of sensation in the right foot. CONCLUSION OF LAW The criteria for an increased evaluation for a low back disorder, in excess of 20 percent, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.71a Diagnostic Codes 5292, 5203 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Generally, claims for increased evaluations are considered to be well grounded. A claim that a condition has become more severe is well grounded where the condition was previously service connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board is satisfied that all relevant facts pertaining to the low back disability have been properly developed. There is no indication that there are additional pertinent records which have not been obtained. No further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. The appellant claims that his low back disability has worsened and warrants an increased disability rating. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The percentage ratings in the SCHEDULE FOR RATING DISABILITIES represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (1999). Each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (1999). 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 (1999). 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 absence of part, or all, of the necessary bones, joints and muscles', or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 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. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) Excess fatigability; (e) Incoordination, impaired ability to execute skilled movements smoothly; (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. 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 nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. 4.59. A review of the current medical evidence of record shows no complaints related to the veteran's service connected back disability on VA outpatient treatment records dated between September 1994 and February 1998. Records from Dwight D. Eisenhower Army Medical Center, dated between June 1997 and February 1999 are likewise negative for treatment of this condition, however, treatment notes dated in August 1998 show the veteran giving a history of status post diskectomy twelve years prior with some permanent residual pain, sciatic in nature. The report of a VA examination, conducted in March 1998, shows the veteran complaining of pain in the lower back and right hip. The pain was very variable in nature. He reported occasional night and rest pain. He stated he has occasional sharp pain down to his right foot. It is very intermittent. He denied any bowel or bladder dysfunction. There was no change with ambulation or with posture. He could not relate it to any specific activities. Examination showed range of motion mildly diminished with forward flexion to 60 degrees, extension of 20 degrees, lateral bending to 25 degrees, and rotation to 25 degrees. Rotation was not painful. There was no tenderness to palpation. Reflexes were 2+ at the quads and not present at the Achilles. Babinski was downward. There was no evidence of clonus. Fabere test was positive. Strength was 5/5. He had some loss of sensation in the distribution of the right foot. X-ray examination showed some spondylosis with degenerative disc disease at L4-5 and L5-S1. Mild loss of lordosis was also evident. The diagnostic impression was chronic low back pain with some sensory residual right foot radiculopathy. It was noted that sensation on that foot most likely will not contribute to any significant extent. The veteran was able to move very well and did not appear to have any significant pain on evaluation. Range of motion was mildly diminished, and early fatigue should be minimal. The Board has considered whether an evaluation greater that 20 percent could be assigned for the appellant's low back disability under the criteria for limitation of motion of the lumbar spine or under the criteria for intervertebral disc syndrome. Under Diagnostic Code 5292, limitation of motion in the lumbar spine is assigned a 40 percent evaluation when severe, a 20 percent evaluation when moderate, and a 10 percent evaluation when slight. The veteran's current limitations in lumbar spine motion, shown to be 60 degrees of flexion, 20 degrees of extension, 25 degrees of lateral bending, and 25 degrees of rotation, demonstrate no more than moderate limitation of motion, which does not warrant an evaluation greater than 20 percent. When intervertebral disc syndrome is pronounced, as manifested by 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 for which there is little intermittent relief, a 60 percent evaluation is assigned. If intervertebral disc syndrome is severe, with symptomatology indicating recurring attacks with intermittent relief, a 40 percent evaluation is assigned. When intervertebral disc syndrome is shown to be moderate with recurring attacks, a 20 percent evaluation is assigned. If intervertebral disc syndrome is mild, a 10 percent evaluation is assigned. 38 C.F.R. 4.71a, Diagnostic Code 5293. The evidence in this case does not demonstrate that the veteran currently has a low back disability manifested by severe or pronounced intervertebral syndrome. Although the March 1998 VA examination noted absent ankle jerk and some residual sensory radiculopathy, the veteran's disability picture as a whole more clearly reflects the criteria for a 20 percent evaluation. The Board is unable to identify a basis to assign an evaluation greater than 20 percent under the criteria for intervertebral disc syndrome. There is no indication that the veteran's disability is manifested by severe recurring attacks with intermittent, or little intermittent relief. The veteran has made no complaints regarding severe recurring attacks of disabling back pain, and has instead reported a disability manifested by a continuous level of moderate pain and occasional sharp pain. Consideration has also been given to the provisions of 38 C.F.R. 4.40 and 4.45, See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995), as well as to 38 C.F.R. 4.59. While the appellant complains of constant pain in his low back, the Board does not find that such pain has resulted in functional disability in excess of that contemplated in the 20 percent evaluation which this decision grants. The evidence indicates that the appellant's low back symptoms cause mildly reduced range of motion in the lumbar spine. Sciatic symptoms were noted to not be significant, and it was noted that early fatigue should be minimal. He has not required any treatment during recent years. The Board does not find that a higher disability evaluation is warranted for the appellant's low back disability on the basis of functional disability. ORDER Entitlement to an increased evaluation for a low back disability, in excess of 20 percent, is denied. M. W. GREENSTREET Member, Board of Veterans' Appeals