Citation Nr: 0006833 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 96-31 905A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to an increase in the 20 percent evaluation currently assigned for service-connected chronic lumbosacral strain. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The veteran had verified active service from March 1990 to December 1992, and more than three years and 10 months of prior active. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1995 decision by the RO which denied an increased rating for the veteran's service- connected low back disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's lumbosacral strain is manifested by symptomatology analogous to severe and no greater limitation of motion; there is no unfavorable ankylosis or pronounced intervertebral disc syndrome. CONCLUSION OF LAW The criteria for an increased rating to 40 percent for service-connected chronic lumbosacral strain are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Part 4, including Diagnostic Codes 5292-5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background By rating action in January 1994, service connection was established, in part, for chronic lumbosacral strain, rated 20 percent disabling, effective from December 22, 1992, based on a diagnosis of lumbosacral strain during service and similar diagnosis on VA examination in December 1993. The examination report indicated that there was no evidence of radiculopathy or neurological abnormalities. The complaints of numbness in the right foot were without dermatomal pattern, and it was concluded that neuropathy or radiculopathy as the cause were doubtful. The 20 percent rating has remained in effect ever since. In March 1994, the veteran complained of a throbbing pain in the left mid-back of one week's duration associated with abdominal complaints. The impression was NSAID induced gastritis. An x-ray of the lumbosacral spine showed no evidence of fracture, malalignment, or significant degenerative changes. The examiner noted that the study was compared with x-rays taken in November 1993 and showed no interval change. In June 1994, a Statement of the Case was issued on the matter of entitlement to a rating in excess of 20 percent for service connected back disability. There was no substantive appeal. When examined by VA in June 1995, the veteran complained of chronic back pain since service in the early 1980's. She reported aching pain in her lower back radiating upward into the interscapular region, bilaterally. The veteran reported that her symptoms were exacerbated with prolonged sitting, standing or when lifting her son. The veteran indicated that she received some relief with heat and 6 extra-strength Tylenol tablets a day, and that she occasionally attempted some stretching exercises. The veteran denied any bowel or bladder disturbance, but reported that she had a uterine fibroid and questioned whether it could be aggravating her back symptoms. The veteran reported some occasional "numbness" in the lateral aspect of her right foot, but stated that an EMG in March 1994 was reportedly normal. On examination, the veteran was well developed and in no acute distress. Her back showed evidence of accentuated lumbar lordosis. Palpation of the spine revealed tenderness over the vertebral spine extending along the thoracic spine from the interscapular area to the lumbar spine. There was tenderness in the sacroiliac joints bilaterally. There was no step-off felt along the vertebral spine but accentuated lumbar lordosis was again noted. There was no evidence of muscle atrophy along the lumbosacral spine. Forward flexion was from 0 to 40 degrees with backward extension from 0 to 5 degrees. Left and right lateral flexion was from 0 to 20 degrees, bilaterally, and rotation was from 0 to 10 degrees, bilaterally. Straight leg raising on the right produced right lumbar pain at 15 degrees, without any evidence of radicular pain in the lower extremities. Straight leg raising on the left produced pain in the left lumbar region at 10 degrees without any radicular pain. Seated straight leg raising was negative, bilaterally. Strength was 5/5 in the quadriceps and hamstrings, bilaterally, and 4/5 in the ankle and great toe dorsiflexors, bilaterally. Heel and toe walking was normal. There was normal pinprick sensation in the lateral, medial and dorsal aspects of both feet. Deep tendon reflexes were 2+, bilaterally with negative Babinski. The examiner noted that x-ray studies taken in March 1994 were normal, and that additional studies were not indicated. The diagnosis was chronic lumbosacral strain. In a substantive appeal dated in August 1996, the veteran reported that she was unable to stand for extended periods of time. She also reported discomfort when sitting for a long time. She noted constant problems bending and difficulty performing household chores. She indicated that muscle spasms interrupted her sleep. When examined by VA in March 1999, the examiner noted that he had reviewed the claims file prior to the examination. He noted the veteran's medical history and her current complaints of intermittent low back pain which was aggravated by increased physical activity. The veteran also reported the onset of radiating pain into the left lower extremity with associated numbness and weakness in the left foot while lifting laundry at home two weeks earlier. On examination, the veteran walked without a limp and exhibited normal lumbar lordosis when standing. There was no evidence of a listing of the spine or spasm of the paraspinal musculature. The veteran complained of tenderness on palpation over the lumbosacral juncture and exhibited limited range of motion. Forward flexion was from 0 to 30 degrees, with extension from 0 to 10 degrees. Right and left lateral flexion was from 0 to 15 degrees, and rotation was from 0 to 20 degrees, bilaterally. The iliac crests were level, and leg lengths were equal without any measurable circumferential atrophy of either thigh or calf. Straight leg rasing in the sitting position was possible to 90 degrees, bilaterally. Deep tendon reflexes were 1+ and symmetrical, bilaterally at the knees and ankles. There was hypesthesia to light touch over the dorsum of the left foot with grade 4 muscle power in the left extensor hallucis longus. The veteran had normal extensor hallucis longus power in the right foot. Sensation was normal in the lateral aspect of the left calf and the plantar aspect of the left foot. X-ray studies of the lumbosacral spine showed no evidence of posttraumatic osteoarthritic changes. The diagnoses included chronic lumbosacral strain and degenerative disc disease at the lumbosacral juncture. The examiner indicated that he was unable to comment on the veteran's disability except at the time his examination without pure speculation. Analysis The Board finds the veteran's claim for increased compensation benefits is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). 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") has held that, when a veteran claims a service- connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Court has also stated that 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 (1994). In this case, the veteran has asserted that her service-connected low back disability is more severe than currently evaluated. Therefore, she has established well- grounded claim. The Board is satisfied in this case that all relevant facts have been properly developed. The veteran has undergone a VA examination and VA outpatient records have been obtained. The record is complete and the Board finds that there is no further duty to assist the veteran in the development of this claim as mandated by 38 U.S.C.A. § 5107(a). The veteran is currently assigned a 20 percent evaluation under DC 5295, which provides as follows: Lumbosacral strain: Severe; with listing of whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, 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.............................. 40 With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position......................................... 20 With characteristic pain on motion.............................................................. 10 With slight subjective symptoms only........................................................ 0 Other possible provisions of the Rating Schedule under which the veteran may be evaluated include the following: 5292 Spine, limitation of motion of, lumbar: Severe....................................................... .............................................. 40 Moderate..................................................... ............................................ 20 Slight....................................................... ............................................... 10 5293 Intervertebral disc syndrome: Pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief........................................................................................ 60 Severe; recurring attacks, with intermittent relief........................................ 40 Moderate; recurring attacks....................................................................... 20 Mild......................................................... ............................................... 10 Postoperative, cured................................................................................. 0 The medical evidence of records shows that the veteran reports chronic pain in her lower back. At the latest VA examination, the examiner specifically indicated that there was no listing of the whole spine or any evidence of muscle spasm. Furthermore, there was no evidence of loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space. As such, there is no basis to grant a 40 percent rating under the criteria for lumbosacral strain. With regard to the criteria for limitation of motion, the Board finds that the latest VA examination has demonstrated chronic pain and limitation of motion. The two VA examinations conducted during the pendency of this appeal have shown the veteran's range of motion of the lumbar spine, in all directions, was significantly limited. In fact, the Board finds that the limitation of motion is most closely analogous to the criteria for a 40 percent rating under Diagnostic Code 5292. This represents severe limitation of motion. In this regard, 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. 38 C.F.R. § 4.7 (1999). However, in the instant case, the Board finds that a rating in excess of 40 percent is not warranted. There is no evidence unfavorable ankylosis of the spine which would warrant a 50 percent rating under Diagnostic Code 5289. In addition, consideration has been given to a higher rating under Diagnostic Code 5293. In this regard on the March 1999 VA examination, the diagnoses included degenerative disc disease at the lumbosacral juncture. Assuming for the sake of argument that degenerative disc disease is a manifestation of the veteran's service-connected low back strain, the current findings do not warrant a rating higher than 40 percent under the criteria for intervertebral disc syndrome discussed above. (DC 5293). There is no evidence of pronounced intervertebral disc syndrome. Muscle spasm has not been noted on VA examination; reflexes are present and symmetrical and muscle power is grade 4. The Board notes that the VA physician in March 1999 indicated that except for what he observed on examination, he could not comment on the veteran's back disability without resorting to speculation. The Board is cognizant of the need to assess functional loss due to pain involving a joint under the ruling in DeLuca v. Brown, 8 Vet. App. 202 (1995). However, as the examiner indicated that he could not offer an opinion without resorting to speculation, the Board is unable to engage in a DeLuca analysis as it relates to the veteran's low back disability. ORDER An increased rating to 40 percent for service connected chronic lumbosacral strain is granted under Diagnostic Code 5292, subject to VA regulations pertaining to the payment of monetary benefits. Iris S. Sherman Member, Board of Veterans' Appeals