BVA9507541 DOCKET NO. 93-12 543 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for status post crush injury, lumbar region, with muscle damage (Muscle Group XX), currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Daniel J. McTavish, Associate Counsel INTRODUCTION The veteran served on active duty from July 1954 to April 1958, and from January 1961 to December 1963. He had a period of active duty for training beginning in August 1978. This matter came before the Board of Veterans' Appeals (Board) on appeal of a February 1992 rating decision by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA), confirming, in pertinent part, the denial of an increase in the current 20 percent evaluation for injury residuals to the lumbar region. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in substance, that the 20 percent evaluation assigned for his crush injury residuals with muscle damage to the lumbar region does not reflect the true extent of disability. He asserts that he wears a transcutaneous electrical nerve stimulation (TENS) unit and takes medication to manage his back pain. The veteran's representative has argued that recent VA examinations have not addressed the veteran's complaints of pain and the case should be remanded for a comprehensive evaluation of his pain in the lumbar region. 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 against the veteran's claim for an increased rating for his status post crush injury, lumbar region, with muscle damage (Muscle Group XX). 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 postoperative residuals of a crush injury to the lumbar region, with muscle damage (Muscle Group XX), include slight limitation of motion and complaints of pain, and are productive of no more than moderate disability. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for residuals of a status post crush injury, lumbar region, with muscle damage (Muscle Group XX), have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.40, 4.41, Part 4, Code 5320 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim for an increased evaluation for status post crush injury, lumbar region, with muscle damage (Muscle Group XX), is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, we find that he has submitted sufficient evidence to justify a belief by a fair and impartial individual that the claim 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 him mandated by 38 U.S.C.A. § 5107(a). Although regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history, 38 C.F.R. §§ 4.1, 4.2, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet.App. 55 (1994). In evaluating the veteran’s claim, all regulations which are potentially applicable through assertions and issues raised in the record have been considered, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Records show the veteran was in a period of training in August 1978, when he sustained an accidental injury. He had been riding in a bulldozer that was knocking down trees. A tree came over its blade and he was struck in the lower chest and upper abdomen. He was compressed between the tree and the seat, which broke. X- rays of the lumbar and dorsal spine were reported to be negative. Subsequent medical records, including private medical reports, described the veteran's complaints and findings of back pain. In June 1981, the RO granted service connection for status post crush injury, lumbar region, with muscle damage (Muscle Group XX), under VA's Schedule for Rating Disabilities (Rating Schedule), Diagnostic Code 5320. 38 C.F.R. Part 4 (1994). A 20 percent evaluation was assigned effective from August 31, 1979. In April 1989, a VA examination reported chronic back pain syndrome. He was able to walk without assistance and there was low back pain on straight leg raising, however no radiation down either leg. Range of back motion was essentially normal with some low back pain. It was reported that he had low back strain for which he was being treated with conservative measures. Decreased sphincter control was also noted and this disorder was subsequently service connected. On a VA examination in June 1990 chronic lumbar myofascial pain, with no evidence of significant lumbar nerve root entrapment and mild degenerative arthritis of the lumbar spine was reported. In December 1991, the veteran submitted a claim for an increased evaluation for his service-connected residuals of a crush injury to the lumbar region, with muscle damage (Muscle Group XX). VA outpatient treatment records from June 1990 to July 1992 indicated that the veteran received treatment primarily for bowel incontinence and also complained of increasing back pain. He was also seen every 6 months for a prescription refill and checkup for his chronic low back pain secondary to the crush injury to the lumbar region. It was noted that he wore a TENS unit. In March 1992, he submitted numerous medical reports, only one of which referred to his service connected low back disability. A chiropractic physician reported that he had treated the veteran for low back and leg pain from October 1989 to February 1992 on an as needed basis with temporary relief only. The physician reported seeing little or no improvement in the veteran's overall condition, but reported no objective findings referable to the lumbar region. VA treatment records covering the period from December 1991 to July 1992 are on file. A special orthopedic examination was undertaken by the VA in August 1992. The veteran reported having a constant, dull aching pain. He had no new complaints. Evaluation of his muscle bulk and tone of the lumbar spine was within normal limits. There was no evidence of marked muscle atrophy or fasciculations and there were no fixed deformities of the spine. His lumbar range of motion revealed forward flexion of 75 degrees, extension backward 35 degrees, lateral flexion 35 degrees, and rotation 30 degrees. Bilateral straight leg raise was negative and the veteran was able to walk on his heels and toes. There was no evidence of fasciculations or atrophy of the lower extremities. Motor strength testing revealed giveaway secondary to pain in examination of all muscle groups except for the distal examination. It was noted that the examination was somewhat influenced by subjective pain. There was some decreased pin prick to the inferior aspect of the calf. Impression was chronic low back pain with subjective findings. It was noted that there was no evidence of herniated disk or spinal stenosis, and no evidence of spinal cord impairment. In general, disability evaluations are assigned by applying a schedule of ratings which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In this regard, moderate disability to the lumbar region of Muscle Group XX warrants a 20 percent evaluation. A 40 percent evaluation is warranted if there is moderately severe disability. 38 C.F.R. Part 4, Code 5320 (1994). Where there is a question as to which of two evaluations should 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 (1994). The history and findings associated with the veteran's lumbar area injury referred to above depict a disability which is not more than moderately disabling. Although the veteran reports that he experiences constant pain and occasional radiating pain, there is no medical or other evidence to establish that the level of disability involving Muscle Group XX is more than moderate. The most recent medical examination revealed no muscle atrophy or fasciculations and no more than moderate limitation of motion. The extensive findings, when considered in conjunction with the other evidence of record, does not reflect an increase in the residuals of the crush injury to the veteran's lumbar spine with muscle damage that would support an increased evaluation. The case does not otherwise present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (1994). Moreover, the Board recognizes that the veteran has low back pain and some loss of motion of the lumbar spine. Such recognition is evidenced by the percentage rating currently assigned, which reflects moderate disability and, in our view, provides adequate compensation based upon the history of the disability, the documented clinical findings and the resultant functional loss. See 38 C.F.R. §§ 4.40, 4.41. We have taken into account the contentions by the veteran and his representative, but find that the veteran's complaints of pain in the lumbar region were adequately addressed in the 1992 VA examination. We conclude that the objective clinical evidence shows that the damage to the veteran's lumbar area, Muscle Group XX, is no more than moderate, and that he is entitled to not more than a 20 percent disability rating. ORDER An increased evaluation for status post crush injury, lumbar region, with muscle damage (Muscle Group XX), is denied. S. L. COHN 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.