Citation Nr: 0002122 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 94-31 913 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE The propriety of the staged ratings assigned for the service- connected lumbosacral strain: rated as 20 percent disabling, effective on January 4, 1993 through April 2, 1997; evaluated as 40 percent disabling, effective on April 3, 1997 through June 30, 1999; and currently evaluated as 20 percent disabling (to include restoration of a 40 percent rating). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Craven INTRODUCTION The veteran had active military service from April 1985 to April 1988 and January 1989 to January 1993. The Board of Veterans' Appeals (Board) initially received this case on appeal from a June 1993 decision of the RO, which, in part, granted service connection for lumbosacral strain and assigned a 10 percent rating, effective on January 4, 1993. In January 1997, the Board remanded the case for further development. In May 1997, the RO, in part, assigned a higher rating of 20 percent for the service-connected lumbosacral strain, effective on January 4, 1993, and assigned a higher rating of 40 percent, effective on April 3, 1997. In December 1997, the Board remanded the case for further development. In April 1999, the RO reduced the evaluation assigned for the veteran's service-connected lumbosacral strain to 20 percent, effective on July 1, 1999. Based on the development noted hereinabove, which reflects that the appeal has been pending since the initial grant of service connection, the Board will address the issue as noted on the preceding page. See Fenderson v. West, 12 Vet. App. 119 (1999). FINDINGS OF FACT 1. All relevant evidence for an equitable disposition of the veteran's appeal has been obtained. 2. During the period from January 4, 1993 through April 2, 1997, the veteran is shown to have no more than moderate functional limitation of the lumbar spine due to his service- connected lumbosacral strain; neither severe intervertebral disc syndrome nor functional limitation consistent with ankylosis is demonstrated. Forward flexion was to 50 degrees, there was minimal tenderness and X-ray study was essentially negative. 3. For the period beginning April 3, 1997 and ending June 30, 1999, the veteran is shown to have a severe functional limitation of the lumbar spine due to his service-connected lumbosacral strain; he was reported to have fairly significant muscle spasms, and forward flexion limited to 20 degrees. Neither pronounced intervertebral disc syndrome nor functional limitation consistent with ankylosis is demonstrated. 4. For the current period, beginning July 1, 1999, there is shown to be no more than moderate functional impairment, consisting of constant back pain, exacerbated on standing, occasional muscle spasm, no pain on palpation of the spine, forward flexion to 85 degrees, and no evidence of neurological symptoms. There is no indication of loss of time from work due to back symptoms, assessed by the VA examiner as mildly disabling. CONCLUSIONS OF LAW 1. The criteria for the assignment of a rating in excess of 20 percent, effective from January 4, 1993 through April 2, 1997, and a rating in excess of 40 percent, effective from April 3, 1997, through June 30, 1999 for the service- connected lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a including Diagnostic Codes 5286, 5289, 5292, 5293 5294, 5295 (1999). 2. Neither restoration of a 40 percent rating, nor assignment of a rating higher than 20 percent, for the service-connected lumbosacral strain is warranted, for the current period beginning July 1, 1999. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.344, 4.2, 4.10, 4.13, 4.71a including Diagnostic Codes 5292, 5294, 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background A careful review of the service medical records shows that, in May 1992, the veteran injured his back after being caught between a tank turret and turret shield door. In July 1992, a radiology report revealed an impression of right spondylolysis at L5. On a VA examination report form completed by the veteran in February 1993, he complained of a sharp pain over the lower section of his back when he bent over or twisted to the left or right. He was reported to use a back brace. On VA examination in March 1993, the veteran was reported to wear a back brace at all times and to be able to ambulate, lift and bend over without pain while wearing the brace. His coordination was reported to be intact and his reflexes, sensory and motor were reported to be normal. The veteran was diagnosed, in part, with lumbosacral spine sprain. On a VA spine examination in March 1993, the veteran was reported to complain of lumbosacral spine pain, status post injury where he had been squeezed in a tank turret in service. The veteran indicated that he had worn a back brace since June 1992. The veteran was reported to have a normal gait. There was reported to be minimal tenderness on palpation of the lumbosacral paraspinal muscles, but no atrophy. Straight leg raise was reported to be negative on the right and left. The veteran was reported to have flexion to 50 degrees, extension to 35 degrees, rotation to 30 degrees, bilaterally, left lateral flexion to 40 degrees and right lateral flexion to 30 degrees. Limitations of ranges of motion were reported to be secondary to pain. The veteran was diagnosed, in part, with lumbosacral back sprain. The veteran was reported to be maintained in a back brace and to have a negative bone scan. On a March 1993 VA radiology report of the lumbar spine, the impression was a minor degree of spina bifida at S1, of no importance clinically, and, otherwise, an unremarkable study. In April 1993, a VA radiology report of the lumbosacral spine revealed normal curvature and alignment of the vertebra and no evidence of arthritis, disc disease or other abnormalities, except for a small spina bifida occulta defect at S1. The impression was an essentially normal lumbosacral spine. During a hearing at the RO in March 1994, the veteran reported that he had flare-ups of back pain upon prolonged standing. He indicated that he worked for the police department and that he had to work with pain. He reported that he took medication and used a TENS unit for his back. He reported that he occasionally wore a back brace in the evening. He reported that he had back pain when he bent over and muscles spasms around the buttocks and lower part of the back. He reported that he had trouble putting on his shoes and socks because of the back pain. Received in March 1994 were VA outpatient treatment records, reflecting treatment from January 1993 to March 1994. During this time the veteran underwent a course of physical therapy, after which home back and abdominal muscle strengthening exercises were recommended. The reports reflect, on the whole, that the veteran had non-radiating pain and back stiffness. In August 1993, the veteran was assessed with chronic lower back pain. In December 1993 he sought medical treatment for muscle strain due to an automobile accident that month. Forward flexion was then to 70 degrees. Received in June 1996 was a VA Persian Gulf examination, which reported that the veteran's flexion of the spine was limited to 40 degrees. He was also reported to have limited range in lateral flexion and rotation and pain was objectively noted. His neurological examination was reported to be normal. On a VA spine examination in April 1997, the veteran was reported to be employed at the post office and to have lost approximately one week from work due to recurrent back spasms. The veteran was reported to complain of dull, constant pain in his low back that was exacerbated with bending and stooping associated with his employment. He reported that the pain would become sharp and radiate into his right buttock. An examination of the lower back revealed lumbar paraspinal muscular spasm from L3 to S1. Forward flexion was reported to be to 20 degrees, side bending to 10 degrees, extension to 10 degrees, and rotation to 0 degrees. The veteran was reported to complain of pain to palpation and pain with active range of motion through all plains. Straight leg raising was reported to be negative, but the veteran demonstrated bilateral tight hamstrings. Achilles reflexes were reported to be rated at 1+ and patellar reflexes at 2+. The veteran was reported to demonstrate 5/5 motor function for extensor hallucis longus, tibialis anterior and perineural muscular groups. There was reported to be no evidence of gross dermatomal sensory loss. The impression was chronic lumbosacral strain. A repeat examination of the back was reported to show increased lumbar spasm with associated guarding. The veteran was reported to have fairly significant muscle spasm and his physical findings were consistent with his complaints of having difficulty with his employment. The examiner indicated that the veteran would have difficulty with any type of job that would require repetitive bending, stooping or lifting of anything heavier than 25 pounds. On an April 1997 VA x-ray examination of the lumbar spine, the lumbar spine was reported to demonstrate good preservation of disc space height and no evidence of gross fracture, dislocation or degenerative changes. The veteran was reported to show radiolucency through the pars interarticularis at L5-S1, consistent with spondylolysis without listhesis. The impression was spondylolysis at L5- S1. In response to the Board's remand request, VA examinations were scheduled. In so doing, the RO advised the VA medical facility that the veteran's claims folder and a copy of the remand should be reviewed. It is noted that the veteran's claims file was transferred to the examining facility. While not specifically mentioned by the examiners, the summary of the veteran's history contained in their reports suggests that they did have access to the claims folder. On a VA peripheral nerves examination in June 1998, the veteran was reported to have had a history of chronic low back pain and back spasms since 1992. The veteran was reported to have continued to have dull, lumbar back pain which was pretty much constant throughout the day, every day. He was reported to have severe midback pains, at least four or five times a week, which were associated with tightness in the back and which had been diagnosed as back spasms in the past. He was reported to have had intermittent episodes of shooting pain into the posterior aspect of the right buttock, which had occurred approximately five times in the past year. He was reported to have never had these types of episodes prior to the previous one to two years. The veteran was reported to be currently working as a mail carrier and to be active. He was reported to have problems with sleeping at night and to have previously been treated with a TENS unit, which had not been as helpful in the last couple of years. He was also reported to be on muscle relaxants which did not appear to have helped him that much. The veteran was reported to have 5/5 strength on motor examination throughout, with normal fine finger movements. He was reported to have very tense, tight muscles in the paraspinous muscles in the lumbar area which were tender to palpation. He was reported to have very limited lateral motion of the spine and to experience severe pain on only 10 degrees of rotation laterally in either direction. Posteriorly, he was reported to be able to go back about 30 degrees and, anteriorly, to 40 degrees before he experienced pain. A sensory examination revealed that the veteran had a mild decrease in position sense of the right toe. Otherwise, sensory testing was reported to be normal, including pinprick, temperature sensation and vibratory sensation, throughout. Cerebellar testing was reported to reveal normal finger-to-nose, heel-to-shin and gait. Reflexes were reported to measure 2+ in the upper extremities. The veteran was reported to have 3+ knee jerks and 2+ ankle jerks that were symmetric. He was reported to have bilateral downgoing toes. The impression revealed that the veteran had a pretty severe lumbar back strain in 1992 and, since that time, had had continued chronic low back pain and back spasms. The veteran was reported to have an obvious decrease in flexibility of the back, which was hindered secondary to his experience of severe pain and tight muscles in the paraspinous area, which were consistent with back spasms. The neurological examination was reported to be otherwise intact. The veteran's reflexes were reported to be symmetric and there was no evidence of nerve root compression or spinal cord compression based on the examination. The examiner reported that mild arthritic changes in the spine could not be ruled out, although they may or may not be detected on x-ray studies and, at this time, there were no findings on examination to warrant a MRI of the back. On a VA spine examination in June 1998, the veteran was reported to have had low back pain since his injury in service and to have had four severe episodes of muscle spasms in his right buttock over the past year. His low back pain was reported to be constant and dull and to radiate into the lower extremities. He was reported to occasionally have exacerbations of his pain and, when he stood for 20 to 40 minutes, his low back pain would get worse. He was reported to have denied previous physical therapy, except for a TENS unit, and he had previously tried an orthotics brace that brought no relief. He was reported to be on medication that brought moderate relief. He indicated that he had had some difficulty in his job as a mail carrier because of the muscle spasms in his low back and buttocks. The veteran was reported to have forward flexion to 85 degrees, backward flexion to 10 degrees, left flexion to 25 degrees, right rotation to 25 degrees and rotation to 20 degrees, bilaterally. Motor examination was reported to measure 5/5 throughout and sensory examination was intact. Deep tendon reflexes were reported to measure +2 throughout. Toes were reported to be downgoing, bilaterally, and straight leg raise and crossed straight leg raise were negative. There was reported to be no pain on palpation of the lower back. The veteran was assessed with no evidence of lumbar sciatica, myelopathy or radiculopathy. He was reported to be neurologically intact and his symptoms were not correlated in any anatomic way to what was seen on his normal lumbar plain films. There was reported to be no evidence of degenerative spine disease or disc disease. His symptoms were reported to be mild and to be related to occasional muscle spasms. On a June 1998 VA radiology report of the lumbosacral spine, the intervertebral disc spaces and vertebral body heights were reported to appear to be generally well maintained. No spondylolisthesis or spondylolysis was reported to be detected and there was mild disc space narrowing at L5-S1. The impression was minimal disc space narrowing at L5-S1, which was slightly greater than expected for the veteran's age. In response to the Board's remand requests, the RO asked that the veteran provide information as to any insurance settlement or other monies he may have received as a result of the motor vehicle accident he had in December 1993, in which he injured his back. He was asked to provide documentary evidence from his employer concerning time lost from work due to his back disability, or other effects on his ability to do his job. He was asked to provide information about any medical care providers from whom he sought treatment for his back in recent years. The veteran responded to none of these requests. In December 1998, based upon the June 1998 VA examinations, and noting the veteran's failure to provide any of the requested information, the RO proposed to reduce the veteran's rating for the service-connected lumbosacral strain from 40 percent to 20 percent. In April 1999, the RO reduced the veteran's rating for the service-connected lumbosacral strain from 40 percent to 20 percent, effective on July 1, 1999. II. Analysis A. Propriety of the Initial Rating of 20 Percent Assigned for the Service-Connected Lumbosacral Strain, Effective January 4, 1993 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) (West 1991). The Court of Appeals for Veterans Claims (Court) has held that, when a veteran claims that a service-connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). 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 (West 1991). The regulations require that, in evaluating a given disability, that disability must be viewed in relation to its whole recorded history. 38 C.F.R. §§ 4.1, 4.2 (1999). An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45 (1999). See also DeLuca v. Brown, 8 Vet. App. 202 (1995). 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 (1999). The rating criteria that apply to the veteran's service- connected lumbosacral spine are as follows: Under 38 C.F.R. § 4.71a including Diagnostic Code 5286 (1999), complete bony fixation (ankylosis) of the spine, with unfavorable angle, marked deformity and involvement of major joints (Marie-Strumpell type) or without other joint involvement (Bechterew type) warrants a 100 percent rating. Complete bony fixation (ankylosis) of the spine of favorable angle warrants a 60 percent rating. Under 38 C.F.R. § 4.71a including Diagnostic Code 5289 (1999), favorable ankylosis of the lumbar spine warrants a 40 percent rating and unfavorable ankylosis of the lumbar spine warrants a 50 percent rating. Under 38 C.F.R. § 4.71a including Diagnostic Code 5292 (1999), a moderate limitation of motion of the lumbar spine warrants a 20 percent rating. A severe limitation of motion of the lumbar spine warrants a 40 percent rating. When intervertebral disc syndrome is 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, with little intermittent relief, a 60 percent rating is warranted. When intervertebral disc syndrome is severe, with recurring attacks, with intermittent relief, a 40 percent evaluation is assigned. When intervertebral disc syndrome is moderate, with recurring attacks, a 20 percent evaluation is assigned. When intervertebral disc syndrome is mild, a 10 percent evaluation is assigned. 38 C.F.R. § 4.71a including Diagnostic Code 5293 (1999). When sacroiliac injury and weakness or lumbosacral strain is severe, with listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above symptoms with abnormal mobility on forced motion, a 40 percent evaluation is assigned. When a sacroiliac injury and weakness or lumbosacral strain is accompanied with muscle spasm on extreme forward bending and lateral spine motion, a 20 percent evaluation is assigned. When a sacroiliac injury and weakness or lumbosacral strain is accompanied with characteristic pain on motion, a 10 percent evaluation is assigned. When a sacroiliac injury and weakness or lumbosacral strain is accompanied with slight subjective symptoms only, a noncompensable evaluation is assigned. 38 C.F.R. § 4.71a including Diagnostic Codes 5294, 5295 (1999). On a VA spine examination in March 1993, the veteran was reported to have minimal tenderness on palpation of the lumbosacral paraspinal muscles, but no atrophy. Straight leg raise was reported to be negative on the right and left. The veteran was reported to have flexion to 50 degrees, extension to 35 degrees, rotation to 30 degrees, bilaterally, left lateral flexion to 40 degrees and right lateral flexion to 30 degrees. Limitations of ranges of motion were reported to be secondary to pain. The veteran was diagnosed, in part, with lumbosacral back sprain. On an April 1993 VA radiology report, the impression was an essentially normal lumbosacral spine. During the initial part of the appeal period, beginning in January 1993, the veteran's service-connected lumbosacral strain, was rated as 20 percent disabling. Since then the RO has, on a number of occasions, considered the proper rating to be assigned, in effect assigning "staged" ratings, in accordance with the guidance provided by the Court in Fenderson v. West, 12 Vet. App. 119 (1999). In fact the 20 percent rating extended only to April 2, 1997, when a higher 40 percent rating was made effect. Based on the evidence noted hereinabove, the Board acknowledges the veteran's contentions of back pain and his limitations of motion secondary to pain during the period described above; however, the Board finds that the veteran's limitation of motion of the lumbar spine was no more than moderate in nature. In addition, the evidence does not demonstrate that the veteran's back disability was productive of ankylosis, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes or narrowing or irregularity of joint space. There was also no evidence of intervertebral disc syndrome, as demonstrated by the April 1993 radiology report. Consequently, the veteran was entitled to no more than a 20 percent rating, effective from January 4, 1993 through April 2, 1997, pursuant to 38 C.F.R. § 4.71a, including Diagnostic Codes 5289, 5292, 5293, 5294, 5295 (1999). See also DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45 (1998). B. Propriety of the Rating of 40 Percent Assigned for the Service-Connected Lumbosacral Strain, Effective April 3, 1997 The grant of an increased 40 percent rating was based on the finding of severe limitation of motion of the back, recorded on VA examination in April 1997. Forward flexion was to 20 degrees, side bending, extension and rotation were all to 10 degrees. That finding contrasted with the moderate limitation of motion found earlier. In addition the examination demonstrated that the veteran had symptoms of constant dull back pain, with sharp pain radiating into the right buttock. His muscle spasms were assessed as being "fairly significant." On the other hand, there was no showing of ankylosis, deformed vertebral body, or neurological impairment which would have warranted a higher rating than 40 percent. He reported losing only a week of time from work, and his assertion of interference with employability was not supported by any documentary evidence showing that he lost any significant time from work, was unable to perform any assigned duties, or required modification of duties as a result thereof. Thus the Board finds no basis for a rating higher than 40 percent, rather agrees with the assessment of the RO that the veteran's limitation of motion of the lumbar spine had become severe in nature and, thus, warrants the maximum schedular rating of 40 percent, effective on April 3, 1997, pursuant to 38 C.F.R. § 4.71a including Diagnostic Code 5292 (1999). See also DeLuca, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45 (1999). A higher rating under 38 C.F.R. § 4.71a including Diagnostic Codes 5292 and 5295, based on functional loss due to pain, is not warranted, as the maximum schedular rating has been assigned. See Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997). Also, as there is no medical evidence of record demonstrating that the veteran's back pain is so severe as to be comparable to ankylosis, the veteran is not entitled to a higher rating pursuant to 38 C.F.R. § 4.71a including Diagnostic Codes 5286, 5289 (1999). See DeLuca, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45 (1999). Nor was the veteran shown during this period to have neurological manifestations consistent with pronounced intervertebral disc syndrome. Accordingly, entitlement to a rating higher than 40 percent, effective on April 3, 1997, pursuant to 38 C.F.R. § 4.71a including Diagnostic Code 5293 (1999), is not assignable. The Board has also considered the benefit of the doubt under 38 U.S.C.A. § 5107 (West 1991) and 38 C.F.R. §§ 3.102, 4.3 (1999), but the evidence is not of such approximate balance as to warrant its application. The Board finds that the preponderance of the evidence is against the veteran's claim for higher rating for his service-connected lumbosacral strain. C. Restoration of a 40 percent Disability Rating for the Service-Connected Lumbosacral Strain and Entitlement to a Rating Higher than 20 Percent The Board finds that the issue of entitlement to restoration of a 40 percent rating, effective from April 3, 1997, for the service-connected lumbosacral strain is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board is also satisfied that all relevant facts have been properly developed and that no further assistance is required in order to comply with the duty to assist mandated in 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). The present case involves a reduction in the veteran's disability rating in which the veteran's 40 percent rating was not in effect for five years. Thus, the provisions of 38 C.F.R. § 3.344 (a) and (b) (1999), which address the stabilization of disability evaluations, are not applicable. See 38 C.F.R. § 3.344(c) (1999). Although the five year time frame is merely a guideline, and not a mandate, as to whether 38 C.F.R. § 3.344 applies in a given case, the United States Court of Appeals for Veterans Claims (Court) has indicated that a rating must be in effect for a time period that is very close to five years in order for 38 C.F.R. § 3.344 (a) and (b) to apply to a case involving restoration of a rating for a service-connected disability. See Brown v. Brown, 5 Vet. App. 413, 417 (1993); Lehman v. Derwinski, 1 Vet. App. 339 (1991) (38 C.F.R. § 3.344(c) satisfied where rating had been in effect for four years and either 363 or 364 days and the total period equaled five 365 day periods due to leap years); Smith v. Brown, 5 Vet. App. 335, 339 (1993) (38 C.F.R. § 3.344(c) was not satisfied by a rating that had been in effect for four years, ten months and 22 days). Here, the veteran's 40 percent rating was only in effect from April 3, 1997 through June 30, 1999, and, therefore, 38 C.F.R. § 3.344 is not applicable. However, even though the provisions of 38 C.F.R. § 3.344 do not apply to the present case, there are other regulations that must be applied to cases which involve rating reductions. In Brown v. Brown, 5 Vet. App. 413, 420-421 (1993), the Court interpreted the provisions of 38 C.F.R. §§ 4.1, 4.2 and 4.13 to require that, in any rating reduction case, it must be ascertained, based upon a review of the entire recorded history of a condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Moreover, 38 C.F.R. §§ 4.2 and 4.10 provide that, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that improvement in a disability actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. Brown, 5 Vet. App. at 421. In addition, a claim for restoration of a disability rating must be resolved in the veteran's favor unless a fair preponderance of the evidence weighs against the claim. That is, the burden of proof is on the adjudicator to establish that a rating reduction is warranted. Brown, 5 Vet. App. at 421; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 U.S.C.A. § 5107(b) (West 1991). As noted above, at the time of the assignment of the 40 percent rating, which became effective in April 1997, the medical evidence of record showed a level of disability due to lumbosacral strain which can be described as "severe." His degree of impairment due to muscle spasms was "fairly significant," and loss of time from work was reported. In contrast, on a VA spine examination in June 1998, the veteran was reported to have had four severe episodes of muscle spasms in his right buttock over the past year. His low back pain was reported to be constant and dull and to radiate into the lower extremities. He was reported to occasionally have exacerbations of his pain and, when he stood for 20 to 40 minutes, his low back pain would get worse. The veteran indicated that he had had some difficulty in his job as a mail carrier because of the muscle spasms in his low back and buttocks. The veteran was reported to have forward flexion to 85 degrees, backward flexion to 10 degrees, left flexion to 25 degrees, right rotation to 25 degrees and rotation to 20 degrees, bilaterally. Range of motion is thus shown to have markedly improved. There was reported to be no evidence of lumbar sciatica, myelopathy or radiculopathy. The veteran was neurologically intact and his symptoms were not correlated in any anatomic way to what was seen on his normal lumbar plain films. There was reported to be no evidence of degenerative spine disease or disc disease. Most importantly, the examiner reported that the veteran's symptoms were mild and related to occasional muscle spasms. VA peripheral nerves examination in June 1998, confirmed the continued complaints of dull, lumbar back pain which was pretty much constant throughout the day, every day, back spasms, and intermittent episodes of shooting pain into the posterior aspect of the right buttock, which had occurred approximately five times in the past year. The impression revealed that the veteran had had a pretty severe lumbar back strain in 1992 and, since that time, had had continued chronic low back pain and back spasms. A request to the veteran for further information on how the back disability impaired his functioning, especially on the job, remained unanswered. There is no evidence of current treatment, and the veteran remains employed. The report of the June 1998 examination, along with the absence of evidence of relating to impairment of on-the-job functioning, compels the conclusion that improvement has occurred, under the ordinary conditions of life, which, in the veteran's case, includes employment. Currently the veteran's back disability warrants no higher than a 20 percent rating, which is assigned for muscle spasm and loss of lateral spine motion under Diagnostic Code 5295. There is no showing of a level of disability which is commensurate with "severe," the spine does not "list" to the opposite side, there is clearly no "marked" limitation of forward bending, or osteoarthritic changes accompanying loss of lateral motion. Further, a finding of ankylosis is not demonstrated by the record, and the range of motion cannot be described as "severe." The Board has given careful attention to whether the veteran experiences additional functional loss due to pain, but on the basis of the record as it now stands cannot conclude that he does. Consequently a higher rating is not warranted on that basis. See 38 C.F.R. §§ 4.40, 4.45. The Board has also considered the benefit of the doubt under 38 U.S.C.A. § 5107 (West 1991) and 38 C.F.R. §§ 3.102, 4.3 (1999), but the evidence is not of such approximate balance as to warrant its application. The Board finds that the preponderance of the evidence is against the restoration of a rating of 40 percent for the service-connected lumbosacral strain for the period beginning in July 1999, or for a rating higher than the 20 percent assigned. ORDER A rating in excess of 20 percent, effective from January 4, 1993 through April 2, 1997, and a rating in excess of 40 percent, effective from April 3, 1997, through June 30, 1999 for the service-connected lumbosacral strain are denied. Restoration of a 40 percent rating, effective July 1, 1999, or entitlement to a rating higher than 20 percent effective that date, is denied. N. R. ROBIN Member, Board of Veterans' Appeals