BVA9501197 DOCKET NO. 93-08 181 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an increased rating for lumbosacral strain with transitional lumbosacral joints with bone spurs and space narrowing, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. A. Dowdell, Associate Counsel INTRODUCTION The veteran served on active duty from February 1961 to August 1961, from February 1963 to July 1971, and from January 1973 to December 1979. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from an August 1992 rating decision from the Muskogee, Oklahoma, Regional Office (RO), which increased a 20 percent evaluation for lumbosacral strain with transitional lumbosacral joints with bone spurs and space narrowing to 40 percent effective from March 31, 1992. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected back disability has worsened and he should be entitled to an increased evaluation. It is maintained that there is severe limitation of motion, neurologic irritation, right buttock numbness and that the leg falls asleep. It is maintained that he has severe pain; that medication is of little value; and that the disorder more closely reflects the next higher criteria. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is in favor of a 60 percent evaluation for lumbosacral strain with transitional lumbosacral joints with bone spurs and space narrowing. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's lumbosacral strain with transitional lumbosacral joints with bone spurs and space narrowing is manifested by complaints of chronic back pain, severe limitation of motion, positive straight leg raising, and little relief. 3. Neither an unusual nor exceptional disability picture has been demonstrated so as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW Lumbosacral strain with transitional lumbosacral joints with bone spurs and space narrowing is 60 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b), Part 4, §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5289, 5292, 5293, 5294, 5295 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board notes that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107. That is, the Board finds that he has presented a claim which is plausible. We are also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Service connection for lumbosacral strain with bilateral transitional lumbosacral joints was granted by a rating action dated in May 1980, following a review of the evidence then of record, a noncompensable evaluation was assigned effective from December 8, 1979. By a rating action dated in January 1981, the veteran's back disability was increased from noncompensable to 10 percent effective from June 30, 1980. By a rating action dated in September 1981, the veteran's back disability was assigned a 20 percent evaluation effective from June 30, 1980. By a decision of September 1982, the Board of Veterans' Appeals denied entitlement to an evaluation in excess of 20 percent for the veteran's service-connected lumbosacral strain. This decision noted that severe lumbosacral strain had not been demonstrated. By a rating action dated in August 1992, the veteran's back disability, which was now reclassified as lumbosacral strain with transitional lumbosacral joints with bone spurs and space narrowing, was increased from 20 percent to 40 percent effective from March 31, 1992. Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The severity of lumbosacral strain with transitional lumbosacral joints with bone spurs and space narrowing is determined, for VA rating purposes, by application of the provisions of Parts 3 and 4 of the Code of Federal Regulations, and in particular 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, (1993) and Diagnostic Codes 5289, 5292, 5293, 5294, 5295 of the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1993). It is recognized that disability of the musculoskeletal system is primarily the inability, due to damage or an infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (1993). Functional impairment due to pain must be considered. 38 C.F.R. § 4.59 (1993). Ankylosis of the lumbar segment of the spine at a favorable angle warrants a 40 percent evaluation. A 50 percent evaluation requires fixation at an unfavorable angle. 38 C.F.R. Part 4, Diagnostic Code 5289. Severe limitation of motion of the lumbar segment of the spine warrants a 40 percent evaluation. 38 C.F.R. Part 4, Diagnostic Code 5292. A 40 percent evaluation is warranted for severe intervertebral disc syndrome with recurring attacks with intermittent relief. A 60 percent evaluation requires pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy (i.e., with characteristic pain and demonstrable muscle spasm and an absent ankle jerk or other neurological findings appropriate to the site of the diseased disc) and little intermittent relief. 38 C.F.R. Part 4, Diagnostic Code 5293. A 40 percent evaluation is warranted for severe sacroiliac injury and weakness or lumbosacral strain manifested by listing of the whole spine to the opposite side, a 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 the joint space. A 40 percent evaluation is also warranted if only some of these manifestations are present if there is also abnormal mobility on forced motion. 38 C.F.R. Part 4, Diagnostic Codes 5294, 5295. We note that the VA outpatient treatment records dated from March 1991 to April 1992 demonstrate that the veteran received treatment for his service-connected lumbosacral strain with transitional lumbosacral joints with bone spurs and space narrowing. The veteran's complaints of chronic back pain are indicated throughout the records. The veteran was last evaluated in April 1992 and an examiner noted that a CT dated in June 1990 diagnosed spinal stenosis on the lumbar spine. The report of Department of Veteran's Affairs (VA) examination performed in July 1992 noted the veteran's complaints of belt line pain aggravated by standing and walking. The veteran stated that his belt line pain causes him to develop flexion of his back and walk stooped over. He stated that his right buttock stays numb and his right leg goes to sleep. He also reported that occasionally his left foot goes to sleep and that he has lateral left thigh tingles. On physical examination, the veteran's straight leg raising was positive bilaterally at 50 degrees. Postural abnormalities included kyphosis of the thoracic and lumbosacral spine, and loss of lordosis of the lumbar spine. There was no fixed deformity. Musculature of the back had decreased. Forward flexion of the lumbar spine was possible to 45 degrees. Backward extension of the lumbar spine was possible to 5 degrees. Lateral flexion of the lumbar spine was possible to 5 degrees, bilaterally. Rotation of the lumbar spine was possible to 5 degrees, bilaterally. All these motions produced some back pain. The examiner noted that the veteran had spinal stenosis of lumbar spine in 1990. He reported that the veteran has neurological irritation of the nerves at L3, L4, and L5 nerve root level with facet syndrome indicated on examination by loss of motion of spine. X-rays of the lumbar spine revealed spinal stenosis and minor anatomic variant at L5. There was evidence of change since previous films of June 1990. A CT scan of the lumbar spine showed spinal stenosis. There was no appreciable change since the last previous scan of June 1990. At L4-5, there was also a good deal of what appeared to be fibrous scarring almost obliterating the spinal canal and there may have been a very narrow laminectomy on the right at that level. The examiner's diagnostic impressions included spinal stenosis lumbar, with facet syndrome L3, L4, and L5. Based on a review of all the evidence of record, the Board finds that an evaluation of 60 percent for the veteran's lumbosacral strain with transitional lumbosacral joints with bone spurs and space narrowing is warranted. We note that the rating currently in effect is the maximum schedular rating that can be assigned for limitation of motion of the lumbar spine (Diagnostic Code 5292) or severe sacroiliac injury and weakness or lumbosacral strain (Diagnostic Codes 5294, 5295). Neither this report nor any other medical evidence demonstrates that the veteran has unfavorable lumbar spine ankylosis or the functional equivalent of unfavorable ankylosis. The evidence establishes that the veteran has severe limitation of motion. He has spinal stenosis and symptoms of neurologic irritation. He receives medication and there has been only some relief with use of a TENS unit. At times he walks stooped over and physical activity aggravates the complaints. At this time, there appears to be little relief. We believe that the disorder is pronounced. Accordingly, a 60 percent evaluation is granted. In reaching this decision, the Board has considered the complete history of the disabilities in question as well as the current clinical manifestations and the impact the disabilities may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2 (1993). In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation may be awarded commensurate with average earning capacity impairment due exclusively to the service-connected disability. 38 C.F.R. § 3.321. We do not find that this case presents such an exceptional or unusual disability picture inasmuch as there has been no demonstration of such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. ORDER A 60 percent evaluation for lumbosacral strain with transitional lumbosacral joints with bone spurs and space narrowing is granted, subject to the controlling regulations applicable to the payment of monetary benefits. H. H. SCHWARTZ Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.