Citation Nr: 0005510 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 97-09 929A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased evaluation for low back strain, avulsion fracture spinous process L-2, currently evaluated as 40 percent disabling. 2. Entitlement to a disability evaluation in excess of 10 percent for low back strain, avulsion fracture spinous process L-2 prior to August 31, 1998. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Hinton, Associate Counsel INTRODUCTION The veteran served on active duty from December 1968 to November 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO), which assigned the veteran's service- connected low back disability a 10 percent evaluation, effective from April 24, 1996. The veteran appealed with respect to that rating. The case was received by the Board and remanded to the RO in April 1998 for further development. Subsequently during the course of appeal, a May 1999 rating decision assigned the veteran's service-connected low back disability a 40 percent evaluation. That rating decision denied an evaluation in excess of 10 percent prior to August 31, 1998. The case has since been returned to the Board for further appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the present appeal has been obtained. 2. The veteran's claim for increased evaluation of his service connected low back strain, avulsion fracture spinous process L-2 was received by the RO on June 24, 1996. 3. The veteran's low back strain, avulsion fracture spinous process L-2 is currently manifested by severe restricted limitation of motion of the lumbosacral spine. 4. An August 31, 1998 VA examination report is the earliest dated medical evidence of record that contains factually ascertainable evidence warranting an evaluation in excess of 10 percent for low back strain, avulsion fracture spinous process L-2. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for low back strain, avulsion fracture spinous process L-2 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Codes 5289, 5292, 5293, 5295 (1999). 2. An effective date earlier than August 31, 1998, for the assignment of an evaluation in excess of 10 percent for low back strain, avulsion fracture spinous process L-2, is not warranted. 38 U.S.C.A. §§ 1155, 5110(b)(2) (West 1991); 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.10, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Codes 5289, 5292, 5293, 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the veteran's claim is plausible and, thus, well grounded within the meaning of 38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet.App. 629 (1992) (a claim of entitlement to an increased evaluation for a service-connected disability is a well- grounded claim). The Board is also satisfied that all relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The veteran has been provided recent Department of Veterans Affairs (VA) examinations to evaluate his back disorder and various treatment records have been obtained. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (1999) and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the veteran's service medical records as well as all other evidence of record pertaining to the history of his service-connected back disability. The Board has identified nothing in this historical record which suggests that the current evidence is not adequate to fairly determine the rating to be assigned for this disability. A July 1973 RO rating decision granted service connection for low back strain, which was assigned a noncompensable evaluation. The decision to grant service connection was based in part on service medical records showing that the veteran injured his back during service. An October 1971 service medical report contains an impression of compression fracture at L3, L2 spinous process. The report of the veteran's May 1972 separation examination records an avulsion fracture, spinous process of L2, healed without sequelae. An August 1996 rating decision increased the assigned evaluation for the veteran's service-connected back disability from a noncompensable level to 10 percent, effective from April 1996. That decision was based on a determination that recent VA clinical records showed findings in April 1996 sufficient to warrant an increase. The RO determined that medical records showed complaints of chronic recurrent back pain, with findings of mild tenderness of paraspinal muscles, absent right deep tendon reflex, and congenital spinal stenosis at L3-L4 as shown on Computed Tomography (CT) scan of the lumbar spine. The veteran appealed as to the assigned rating. The Board remanded the case in April 1988, and after further development, a May 1999 rating decision assigned a 40 percent evaluation effective from the date of a VA examination on August 31, 1998. The recent evidence for consideration in assessing the severity of the veteran's back disability includes reports of private and VA treatment records and of VA examinations in August 1998 and April 1999. The report of a May 1996 magnetic resonance imaging (MRI) examination noted that findings were moderately compromised secondary to the veteran's morbid obesity, causing graininess of the images. No definite disc bulge or protrusion was noted at L3-4. Congenital spinal stenosis was demonstrated with the thecal sac narrowed to 7 mm. The neural exit foramina were patent bilaterally. At L4-5, the epidural fat had become effaced by soft tissue density. It appeared that the thecal sac was displaced posteriorly and was somewhat narrowed. The neural exit foramina were patent bilaterally. At L5-S1, the epidural fat was effaced by soft tissue density, which was displacing the thecal sac posteriorly. The thecal sac was not narrowed. The impression was that the apparent soft tissue density effacing the epidural fat at L4- 5 and L5-S1 may have been related to disc herniation, protrusion or extrusion. The report also contains an impression of congenital spinal stenosis at L3-4. The report of a November 1996 VA examination of the spine noted complaints of chronic pain, which was continuous and variable in intensity. On examination, the veteran demonstrated a slow deliberate gait. On forward bending he was able to touch his toes and he had a reasonably good range of lumbosacral motion. The report recorded flexion to 90 degrees, extension to 20 degrees, and right and left lateral flexion to 25 degrees, bilaterally. No spasm or deformity was found. Neurologic testing in the lower extremities showed active and symmetrical deep tendon reflexes, normal manual muscle strength, a normal sensory examination, and negative straight leg raising bilaterally. The report noted that X-ray examination of the lumbosacral spine showed residuals of an apparent spinous process fracture at L2; and some mild degenerative changes throughout the lumbar spine. The report contains a diagnosis of chronic lumbosacral strain. The examiner concluded that the objective evaluation showed a good range of lumbosacral motion, with no signs of radiculopathy; and that X-rays showed possible residuals of an L2 spinous process fracture and some very mild degenerative changes. The examiner noted that the veteran appeared to have mechanical low back pain, which was complicated by a rather substantial obesity problem. The veteran testified at a November 1996 hearing regarding the severity and symptomatology of his service-connected low back strain disability. He testified that he had severe, constant pain affecting his lower back, and sometimes radiating into his legs; and that his arms and hands go numb. He further described his symptoms and the effect on his abilities and work. An April 1997 private medical report contains findings from magnetic resonance imaging (MRI) examination. That report contains an impression of disc degeneration at L3-L4 with facet hypertrophy, causing mild central stenosis and impingement on the thecal sac by facet arthrosis mainly on the right side. The veteran testified at a November 1997 Travel Board hearing regarding the severity and symptomatology of his service- connected low back strain disability, and its effect on his abilities. He described a constant pain in the lower back, which radiates into his legs and into his arms causing numbness in the arms and legs. Although constant, the pain became more intense during the course of the day when he worked. He had daily muscle spasms, difficulty sleeping, stiffness in the morning, and other symptoms and difficulties due to his back condition. The report of an August 1998 VA orthopedic examination of the spine noted complaints of chronic lower back pain with variable intensity. The veteran reported that his activity level had been reduced rather substantially and he could barely walk 100 yards. He reported that lower back pain radiated into both lower extremities. Examination revealed that the veteran demonstrated a slow deliberate gait. On forward bending, he could not touch his toes and his range of lumbosacral motion was quite restricted. Lumbosacral flexion was to 15 degrees, extension was to 5 degrees, right and left lateral flexion were both to 5 degrees. No spasm or deformity was found on inspection. Neurologic testing in the lower extremities showed active and symmetrical deep tendon reflexes, normal manual muscle strength, a normal sensory examination, and negative straight leg raising bilaterally. X-ray examination of the lumbosacral spine was normal. The report contains a diagnosis of chronic lumbosacral strain with apparent MRI evidence of spinal stenosis. The report of an April 1999 VA orthopedic examination of the spine noted that during the August 1998 VA examination, lumbosacral X-rays were normal, with no evidence of residuals of an L2 compression fracture or of disk degeneration at L3- 4, as suggested by an earlier MRI in April 1997. The veteran reported complaints of chronic mechanical lower back pain with stiffness. He reported having prominent pain daily and denied any episodes of more severe pain. The report noted that the veteran worked as an automobile mechanic, and tries to adjust his work activities to allow work in spite of his chronic prominent lower back pain. He reported that the pain radiated into both lower extremities, and that occasionally his knees and legs would give out. On examination, the examiner noted that the veteran was morbidly obese, demonstrated a normal gait and did not require ambulatory aids. On forward bending, there was very little motion. Lumbosacral flexion was to 15 degrees, extension to 5 degrees, and right and left lateral flexion was to 5 degrees, bilaterally. The report contains a diagnosis of chronic lumbosacral strain with L3-4 mild degeneration and facet hypertrophy and mild central stenosis. The April 1999 VA examination report concluded with comments and opinion regarding the veteran's back disability. The examiner indicated that the veteran was a 50 year old morbidly obese man with chronic back pain, which was certainly adversely affected by his weight of 325 pounds. The examiner noted that the back symptoms and obesity had led to very restricted lumbosacral motion. The examiner noted that an April 1997 MRI scan of the lumbosacral spine showed disk degeneration at L3-4 with facet hypertrophy. The examiner opined that these degenerative changes were probably related to the aging process and the veteran's obesity. The examiner did not believe that these degenerative changes were a direct result of the L2 compression fracture, which was part of the service connected condition. The examiner noted that the veteran did not have flare-up episodes but the pain was constant and severe. The examiner opined that the veteran's marked limitation of lumbosacral motion was evidence of functional loss due to pain, and that the functional loss and limitation of motion were related both to the pain as well as to morbid obesity. The examiner noted that the veteran did show some mild incoordination, weakened motion, and fatigability during examination. The examiner opined that the fatigability was not excessive but rather what would be expected, considering the mechanical lower back pain and morbid obesity. The examiner concluded with an opinion that the disk degeneration of L3-4 causing mild central stenosis was not related to the prior compression fracture at L2, which was not apparent on recent lumbosacral X-ray examination. The claims file includes VA clinical records of recent treatment from 1995 and thereafter, showing treatment for various complaints and conditions. Under the laws administered by VA, disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). However, the Board must also consider the history of the veteran's injury, as well as the current clinical manifestations of its residuals and the overall effect that the disability has on the earning capacity of the veteran. See 38 C.F.R. § 4.2. 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (1999). The United States Court of Appeals for Veterans Claims (Court) has emphasized that when evaluating disabilities of the musculoskeletal system, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, pain on movements, and weakness. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The Board notes that under 38 C.F.R. § 4.40, the rating for an orthopedic disorder should reflect functional limitation which is due to pain which is supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. See 38 C.F.R. § 4.45. 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. Moreover, it is the intention of the rating schedule to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joints. See 38 C.F.R. § 4.59. Under Diagnostic Codes 5285-5295, the veteran's low back strain, avulsion fracture spinous process L-2 is currently evaluated as 40 percent disabling, and prior to August 31, 1998, as 10 percent disabling. Under Diagnostic Code 5292, the criteria for a 10 percent evaluation include findings reflective of a slight limitation of motion of the lumbar spine. Moderate limitation of motion warrants a 20 percent evaluation, and severe limitation of motion of the lumbar spine warrants a 40 percent evaluation. The veteran may also be evaluated under Diagnostic Code 5295. Under that diagnostic code, the criteria for a 10 percent evaluation requires findings reflective of lumbosacral strain with characteristic pain on motion. A 20 percent evaluation is warranted for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 40 percent evaluation requires findings reflective of a severe lumbosacral strain, manifested by listing of the whole spine to the opposite side, a positive Goldthwaite's sign, a marked limitation of forward bending in the standing position, a loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. The veteran's service-connected low back strain disability may also be rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5289 or 5293. Under Diagnostic Code 5289 the criteria for a 40 percent evaluation contemplate findings reflective of favorable ankylosis of the lumbar spine. The criteria for the next higher 50 percent evaluation contemplate findings reflective of unfavorable ankylosis of the lumbar spine. However, ankylosis (bony fixation) has not been clinically demonstrated or diagnosed. Under Diagnostic Code 5293,the criteria for a 10 percent evaluation contemplate findings reflective of intervertebral disc syndrome, with mild symptoms. A 20 percent evaluation is warranted for moderate symptoms with recurring attacks. A 40 percent evaluation contemplate findings reflective of intervertebral disc syndrome, with severe, recurring attacks, with intermittent relief. The criteria for the next higher 60 percent evaluation requires findings reflective of a 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. Evaluation in Excess of 40 Percent for Low Back Strain Disability The veteran is already assigned a 40 percent evaluation, which is the highest rating allowed under Diagnostic Codes 5292 and 5295. Consequently, evaluation of his service- connected low back strain, avulsion fracture spinous process L-2 under either of those diagnostic codes would not yield a higher evaluation for the veteran. There is no evidence of symptoms of intervertebral disc syndrome that would warrant a higher evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5293. The clinical evidence shows that motion of the lower back does result in pain, but the symptoms are not reflective of a 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. VA's General Counsel has determined that intervertebral disc syndrome involves loss of range of motion. Therefore, pursuant to Johnson v. Brown, 9 Vet. App. 7 (1996), 38 C.F.R. §§ 4.40 and 4.45 must be considered when a disability is evaluated under Diagnostic Code 5293. See VAOPGCPREC 36-97 (December 1997). 38 C.F.R. § 4.45 provides that the factors of disability regarding joints reside in reduction of their normal excursion of movements in different planes. Inquiry will be directed to considerations of less or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, deformity or atrophy of disuse. See 38 C.F.R. §§ 4.10, 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). However, even considering the veteran's complaints of pain, the preponderance of the evidence is against a finding of more than severe intervertebral disc syndrome. Moreover, while there is clearly limitation of motion, the reported findings as to range of motion do not show more than severe loss of motion, even when consideration is given to additional loss of motion due to pain, weakness, fatigue and incoordination. Findings in the April 1999 VA examination indicate that there was severe limitation of lumbosacral motion that was evidence of functional loss due to pain. However, the functional loss and limitation of motion were related not only to pain, but also to the veteran's morbid obesity. Those findings also indicated that the veteran only showed some mild incoordination, weakened motion and fatigability. The fatigability was not felt to be excessive, but as expected considering the mechanical lower back pain and morbid obesity. Under Diagnostic Code 5285, residuals of a fracture of a vertebra with cord involvement, bedridden, or requiring long leg braces is rated 100 percent. Without cord involvement but with abnormal mobility requiring a neck brace (jury mast) warrants a 60 percent evaluation. In other cases the disability is rated in accordance with definite limitation of motion or muscle spasm, adding 10 percent for demonstrable deformity of a vertebral body. 38 C.F.R. § 4.71a, Diagnostic Code 5285. The evidence does not reflect any residuals reflective of the criteria necessary for a 60 or 100 percent evaluation under Diagnostic Code 5285. Nor does the evidence show any demonstrable deformity of a vertebral body at L2. The examiner in the recent VA examination of April 1999 opined that degenerative changes at L3-4 were probably related to the aging process and the veteran's obesity, and not believed to be a direct result of the service-connected L2 compression fracture. Therefore, an added 10 percent under Diagnostic Code 5285 for demonstrable deformity of a vertebral body, is not warranted. In conclusion, on reviewing the evidence of record, the Board does not find a basis for an increase in excess of 40 percent for the veteran's service-connected low back strain disability. The most recent clinical evidence shows that the veteran was reporting that he experienced prominent daily, chronic mechanical lower back pain with stiffness, which radiated into both lower extremities, and which was without episodes of more severe pain. The veteran had severe limitation of lumbosacral motion and impairment due to his lumbar disability. The veteran's service-connected back disability therefore does not show the criteria necessary for a higher evaluation under any of the relevant diagnostic codes. The Board has also considered possible entitlement to an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b) (1999). However, the Board has not been presented with such an exceptional or unusual disability picture, with related factors including frequent hospitalizations or marked interference with employment, as to render impractical the application of the regular schedular standards. The evidence of record shows that the veteran has not been hospitalized recently for treatment of his low back condition. Although he has had to make adjustments to work due to his chronic prominent lower back pain, the evidence shows that he is able to work full time as an auto mechanic. Based on this information, the Board finds that the RO did not err in failing to refer this claim to the Director of the Compensation and Pension Service for an initial determination. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996). Evaluation in Excess of 10 Percent Prior to August 31, 1998 The veteran's reopened claim for an increased rating for his low back disability was received on June 24, 1996. The August 1996 rating decision assigned a 10 percent evaluation effective from April 24, 1996, based on clinical evidence from this date, which the RO determined to show symptomatology warranting an increase to 10 percent. The effective date of an increased evaluation will be the date of receipt of the claim or the date entitlement arose, whichever is later, unless specifically provided otherwise. 38 C.F.R. § 3.400, 3.400(o)(1). The applicable laws also provide that the effective date of an increased rating "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application or claim is received within one year from such date." 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Additionally, 38 C.F.R. § 3.157(b) provides that the date of a relevant outpatient or hospital examination or admission to a VA or uniformed service hospital will be accepted as the date of receipt of an informal claim for increased benefits with respect to disabilities for which service connection has been granted. Accordingly, the issue is whether between June 24, 1995, a year prior to the receipt of the reopened claim, and August 31, 1998, the effective date for a 40 percent evaluation, it was factually ascertainable that the service-connected back disability had undergone an increase in severity such as to warrant an evaluation in excess of 10 percent. The evidence of record prior to August 31, 1998, however, does not show that the veteran manifested symptomatology that approximated or more nearly approximated those necessary for a higher evaluation under the rating criteria. Although the veteran was seen at a VA outpatient clinic on occasions during this period, he was treated for other unrelated disorders as well as for low back pain complaints. Relevant findings included that the veteran had degenerative disk disease at L3-L4, which caused mild central stenosis and impingement. Most related clinic visits concluded with assessments of low back pain. In May 1996, the examiner found no tenderness in the lumbosacral vertebrae; mild tenderness of the paraspinal area with no palpable spasm. Straight leg raising was negative. The assessment was chronic low back pain with no exacerbation. As indicated above, the November 1996 VA examination found that the veteran manifested a good range of lumbosacral motion, with no signs of radiculopathy or spasm. X-rays showed possible residuals of an L2 spinous process fracture and some very mild degenerative changes. Although the veteran appeared to have mechanical low back pain, the examiner indicated that this was complicated by an unrelated, rather substantial obesity problem. The evidence prior to August 31, 1998 does not reflect more than slight limitation of motion of the lumbar spine; or a lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position; or other criteria that would warrant an evaluation in excess of 10 percent. There is simply no competent medical evidence to show that an increased level of disability was shown during this period. The earliest evidence of such an increase in severity is not shown until the VA orthopedic examination of the spine performed on August 31, 1998. At that time, the veteran was shown to manifest a quite restricted limitation of motion of the lumbosacral spine as compared with earlier findings, a significantly increased level of pathology. The Board finds that the orthopedic evaluation of August 31, 1998, is the first instance when symptomatology was documented that warrants the 40 percent evaluation currently in effect. As there is no medical evidence of an increase in disability warranting an increased evaluation prior to that date, the Board finds that an effective date prior to August 31, 1998 for the assignment of an evaluation in excess of 10 percent for the veteran's low back disability is not in order. 38 U.S.C.A. §§ 1155, 5110(b)(2); 38 C.F.R. §§ 3.400(o). In reaching the foregoing determinations, the Board has considered the complete history of the veteran's low back strain disability. The Board has also considered the current clinical manifestations of this disability and its effect on the veteran's earning capacity, as well as the effects upon his ordinary activity. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41. The functional impairment which can be attributed to pain or weakness has also been considered, see 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca, 8 Vet.App. at 206. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not applicable, and the increased rating claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An increased rating for low back strain, avulsion fracture spinous process L-2 is denied. An effective date prior to August 31, 1998 for the assignment of an evaluation in excess of 10 percent for low back strain, avulsion fracture spinous process L-2 is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals