Citation Nr: 0004643 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 97-10 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an evaluation in excess of 20 percent for service-connected herniated nucleus pulposus at L4-5. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. A. Kultgen, Associate Counsel INTRODUCTION The veteran had active service from April 1988 to March 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 1996 rating decision from the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which granted an increased evaluation of 10 percent for service-connected herniated nucleus pulposus at L4-5, effective from December 13, 1995. By rating decision in July 1998, the RO granted an increased evaluation of 20 percent effective December 13, 1995. FINDING OF FACT The veteran's service-connected herniated nucleus pulposus at L4-5 is manifested by some tenderness, no muscle spasm, moderate limitation of motion with some pain, intact ankle jerk, and some diminished sensitivity to pain in the left lower extremity. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for service-connected herniated nucleus pulposus at L4-5 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5292, 5293 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran's service medical records note hospitalization in October 1991 with a diagnosis of herniated nucleus pulposus at L4-5, which did not exist prior to enlistment. Prior to hospitalization, the veteran had undergone unsuccessful physical therapy for back pain due to this disability. The veteran was found unfit due to his physical disability and was discharged from service. The veteran filed an initial claim for VA benefits for a herniated disc in February 1992. By rating decision in July 1992, the RO granted service connection for herniated nucleus pulposus at L4-5 with a noncompensable evaluation, effective from February 16, 1992. In April 1996, the veteran requested that his service-connected back condition be reevaluated. A VA outpatient treatment record in December 1995 noted a history of left lower extremity pain radiating from the left buttock down the lateral leg and ending at the lateral ankle. The veteran stated that the pain increased with prolonged standing, sitting or walking. Sensory examination was intact with slight hypalgesia of the lateral left foot. The examiner noted an impression of lumbar radicular pain and neurogenic claudication only with increased exercise. Magnetic resonance imaging (MRI) in February 1996 showed L4-5 disc herniation/spinal stenosis/impingement on the right L5 nerve root. In February 1996, improving radicular symptoms with bedrest were reported. Left lower extremity pain was noted in April 1996, with clinical L5 radiculopathy and herniated nucleus pulposus at L4-5. The examiner stated that the veteran should benefit from a diskectomy. In his VA Form 9, substantive appeal, received in March 1997, the veteran stated that he could not tolerate long periods of standing and could not lift more than 20 pounds. He stated that he had lost several jobs due to his back condition. VA treatment records in January 1997 noted that the veteran was evaluated for surgery approximately one year previously, but decided not to have the procedure at that time. A VA examination was conducted in February 1998, and the examiner noted review of the veteran's claims file. The veteran reported continuous low-grade pain in the lower lumbar region, which became more severe with standing, bending, stooping, twisting, and lifting. The veteran further noted left buttock, left lateral knee, and left lateral ankle pain, accentuated with standing, bending and flexing. He reported that he was no longer able to run, and his walking tolerance had decreased from approximately three miles to one mile over the previous year. The examiner noted that the veteran had a normal appearing gait and erect posture. Some tenderness to palpation of the left lumbar paraspinous muscles, left iliolumbar region, and the superior posterior gluteal muscle regions was noted. No true muscle spasm was demonstrated. Active range of motion testing revealed flexion to 40 degrees, extension to 10 degrees, lateral bending of 20 degrees bilaterally, and rotation of 30 degrees bilaterally. The veteran reported some pulling in the musculature of his back and buttock region and some pain on attempts of movement. Ankle jerk was 2+ bilaterally. The examiner noted some hypalgesia over the left lateral leg, left forefoot, and dorsum of the left foot. X-ray examination of the lumbosacral spine was within normal limits, except for a loss of lumbar lordosis with no perceptible disc space narrowing or spur formation. The examiner provided a diagnosis of lumbar intervertebral disc syndrome. II. Analysis In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In the instant case, there is no indication that there are additional records, which have not been obtained and which would be pertinent to the present claims. Thus, no further development is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1999). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). In determining the appropriate disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon 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, 595 (1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2, which require the evaluation of the complete medical history of the veteran's condition. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (1999). The Board recognizes that the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"), in DeLuca v. Brown, 8 Vet. App. 202 (1995), held that where evaluation is based on limitation of motion, the question of whether pain and functional loss are additionally disabling must be considered. 38 C.F.R. §§ 4.40, 4.45 (1999). The provisions contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination and impaired ability to execute skilled movement smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. Id. The VA Office of the General Counsel held that Diagnostic Code 5293, does in fact contemplate disability due to limitation of motion and thus must be considered together with 38 C.F.R. §§ 4.40, 4.45. See VAOPGCPREC 36-97. Under the Schedule, limitation of lumbar spine motion warrants a 20 percent evaluation if moderate, and a 40 percent evaluation if severe. 38 C.F.R. § 4.71a, Diagnostic Code 5292. Intervertebral disc syndrome warrants a 20 percent evaluation if moderate with recurring attacks. A 40 percent evaluation is warranted if severe with recurring attacks and intermittent relief. A 60 percent evaluation is warranted for pronounced symptomatology, 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 and with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293. The Board finds that the veteran's symptomatology more closely approximates the criteria for an evaluation of 20 percent. Range of motion testing on VA examination in February 1998 showed moderate limitation of motion. The VA examiner in February 1998 noted normal gait, some tenderness, no muscle spasm, moderate limitation of motion with some pain, intact ankle jerk, and some diminished sensitivity to pain in the left lower extremity. The Board finds that this symptomatology most closely approximates a moderate disability with recurring attacks. The evidence preponderates against a finding that the veteran's back condition is severe, as he continues to be able to walk one mile, and has normal gait and erect posture with only "some" tenderness and pain on movement. The veteran has reported pain in the low back, radiating to the left lower extremity, and stated that this pain was exacerbated by standing bending, stooping, twisting, running, or lifting. The veteran's complaints of pain and functional loss do not create a disability picture analogous to the criteria for an evaluation in excess of 20 percent. ORDER Entitlement to an evaluation in excess of 20 percent for service-connected herniated nucleus pulposus at L4-5 is denied. Heather J. Harter Acting Member, Board of Veterans' Appeals