Citation Nr: 0000461 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 99-11 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to an evaluation in excess of 10 percent for a low back disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Phillip L. Krejci, Counsel INTRODUCTION The veteran had active service from December 1990 to July 1994. In April 1998, she claimed service connection for a low back injury, incurred in approximately 1991. This case comes to the Board of Veterans' Appeals (Board) from a February 1999 rating decision by the Regional Office (RO) that granted service connection for low back strain and assigned a 10 percent disability rating, effective from the date of receipt of the claim. In her June 1999 Substantive Appeal, filed on VA Form 9, the veteran requested a Travel Board hearing. When the claim file arrived at the Board in August 1999, it was noted that she had not been afforded the hearing she requested. The Board remanded the case for the hearing in August 1999. The veteran then testified at a November 1999 video- teleconference hearing convened by the undersigned, the Member of the Board designated by the Chairman to conduct the hearing and make the final decision in this case. FINDINGS OF FACT 1. All available relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's back disorder is manifested by complaints of low back pain. Clinical findings show full range of motion, no radiculopathy or radiation of pain, slight decrease of the lordotic curve, and tenderness to palpation over L5-S1. 3. The medical evidence does not show findings indicative of more than the above described symptomatology, at any time since the effective date of the initial grant of service connection. CONCLUSION OF LAW The schedular criteria for a rating in excess of 10 percent for a low back disorder, from the effective date of the initial grant of service connection, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4 to include §§ 4.7, 4.10, 4.40, 4.45, 4.71a, and Diagnostic Code (DC) 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Evidence The veteran's service medical records include outpatient treatment records dated on 22 and 29 July, and 5 August 1993, documenting that she complained of low back pain. The first record reflects that she gave a six- or seven-month history of low back pain, which she attributed to lifting furniture. Examination revealed elevation of the left posterior superior iliac spine with rotation, and mild left sacroiliac tenderness; the range of motion was full. The clinical assessment was of a somatic dysfunction of the sacroiliac. On the next visit, she reported continuing mild discomfort, and the assessment was somatic dysfunction of the lumbosacral area. At the time of the last record, she said that Tylenol helped, and that her back was then "okay." The assessment was low back pain syndrome. On her April 1998 claim, filed on VA Form 21-526, the veteran reported postservice treatment with James Neumayer, DC, and Roger Pelli, DO. A June 1995 record by Dr. Neumayer noted that the veteran was 67 inches in height and weighed 151 pounds. She complained of left sacroiliac pain, described as a sharp pain on rising from a sitting position, and headaches. She said she was unsure of the cause but had experienced the pain for the preceding couple of years, aggravated by prolonged sitting and relieved by activity. Postural examination showed a high left hip. Range of motion of the lumbar spine was reported as full in all aspects and free of pain. Heel-and-toe walk, sitting and supine straight leg raising, and valsalva and Kempt's tests, were all negative. Minor's and Lasègue's signs, for sciatica, were negative. X-rays were not taken, since the veteran was pregnant, but the physician reported that instrumentation showed readings at C1. The diagnosis was chronic subluxation of C1 and the left sacroiliac joint. The plan called for chiropractic adjustments twice each week, and an evaluation after one month. However, a July record noted only that the veteran had responded with mixed results during the preceding three weeks. No records followed. An August 1996 record by Roger Pelli, DO, noted that the veteran was 651/4 inches in height and weighed 1591/2 pounds. She gave a several-year history of left low back pain that worsened with her first pregnancy and was currently worse with her second. She had no history of trauma, but said that the pain had started when she moved furniture in 1991 while in the Air Force. She denied radiation of pain, paresthesias, and muscle weakness, but said the pain was worse with movement. When standing, the right iliac crest was high. Heel-and-toe gait was normal, and seated straight leg raising was negative. She had full range of motion of the thoracic and lumbar spine, good muscle strength, and no sensory deficit, and her reflexes were intact. Reclined examination showed the right anterior superior iliac spine to be inferior to the left with an associated long leg on the right. There was tenderness in the superior portion of the left sacroiliac joint with no sciatic notch or nerve tenderness. The clinical assessment was somatic dysfunctions of the cervical, thoracic, and lumbar spine, and pelvis; and four months pregnant. Osteopathic manipulative therapy was applied to all of the dysfunctioned areas. On a September 1996 record by Dr. Pelli, the veteran reported aching discomfort at the L5-S1 level, and in the left sacroiliac joint, with prolonged sitting or lying down. However, she said she no longer had the stabbing pain. The assessment indicated somatic dysfunctions of the cervical, thoracic, and lumbar spine, and pelvis; and five months pregnant. Osteopathic manipulative therapy was again applied. On a January 1997 record by Dr. Pelli, the veteran reported that she felt extremely well since her last visit, but had delivered a baby five weeks earlier and currently had neck and back pain. The physician reported no sciatic notch or nerve tenderness, but did state that the veteran had a right sacral torsion. The assessment was somatic dysfunctions of the cervical, thoracic, and lumbar spine. Osteopathic manipulative therapy was again applied. At a June 1998 VA examination, the veteran said she had moved furniture in Saudi Arabia, and first noticed low back pain upon her return in January 1992. Currently, she complained of generalized low back pain, without radiation, that worsened with prolonged standing, reclining, or bending. She complained of occasional morning stiffness, but there was no leg numbness or weakness, and walking seemed normal. She could do yard work, but limited her lifting to thirty pounds. The examiner reported that there had been no significant change in her back complaints during the preceding five years. Gait was normal, and gross inspection of the low back was unremarkable. Range-of-motion testing showed full flexion, extension, rotation, and lateral flexion. Motor and sensory examination of the lower extremities was normal, deep tendon reflexes were 2+ at the knees and ankles, and sitting and supine straight leg raising was negative. There was mild tenderness over the left sacroiliac joint. X-rays showed diminished lumbar lordosis, but vertebral body heights and intervertebral disc spaces were preserved, the pedicles appeared to be intact, posterior elements did not appear unusual, and degenerative changes were not evident. The impression was chronic low back pain secondary to mechanical dysfunction and strain. Upon VA examination in March 1999, the veteran complained of pain and fatigue after lifting more than thirty pounds or after repetitive use of her back. She described the pain as 3/10 (3 on a scale of 1-to-10). On testing range of motion, forward flexion was to 100 degrees without an increase in pain, extension was to 40 degrees without an increase in pain, lateral flexion was to 40 degrees on the right and 50 degrees on the left but with pain across the low back at the extremes, and rotation was to 65 degrees on the right and 70 degrees on the left without an increase in pain. She reported pain at 7/10 upon lying on the examining table. Straight leg raising was to 80 degrees on the right and 90 degrees on the left, both without an increase in pain. Visual examination of the spine showed no muscle wasting or other abnormality, except for a slightly diminished lordotic curve. There was tenderness to palpation over L5-S1 but none over the paraspinous muscles. The diagnosis was low back strain. At the November 1999 hearing before the undersigned, the veteran testified that she was stiff when she rose in the morning and had constant low back pain, mostly on the left. Also, her back would ache after light work, although that kind of pain was relieved by rest, and she sometimes noticed a sharp pain when, after prolonged standing or sitting, she took a step. She reiterated this last complaint several times during the hearing, so it appears to be the one most significant to her. The back pain had not improved over the years, and she felt that it may have worsened. Medication had not been prescribed, but she occasionally used over-the- counter anti-inflammatory medication. Analysis A February 1999 rating decision granted service connection for low back strain and assigned a 10 percent disability evaluation under the provisions of DC 5295. The United States Court of Appeals for Veterans Claims (known previously as the Court of Veterans Appeals) has held that, when a veteran claims that a service-connected disability has increased in severity, the claim is well grounded. Since the veteran claims that her service-connected disability is more disabling than indicated by the evaluation assigned, her claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). See Jackson v. West, 12 Vet. App. 422, 428 (1999), citing Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Court of Appeals for Veterans Claims 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 evaluating the veteran's claim, all regulations which are potentially applicable through assertions and issues raised in the record must be considered. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the Court of Appeals for Veterans Claims recently addressed the distinction between a veteran's dissatisfaction with the initial rating assigned following a grant of entitlement to compensation, and a later claim for an increased rating. Where, as here, the veteran disagrees with the initial evaluation assigned when service connection was granted, adjudicators must consider all of the evidence of record relating to the service-connected disability, because separate, or "staged" ratings can be assigned for separate periods of time during the period of service connection. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The basis of disability evaluations is the ability of the body as a whole, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In title 38 of the Code of Federal Regulations, at Part 4, the VA Schedule for Rating Disabilities, the various disabilities are identified by separate diagnostic codes. 38 C.F.R. § 4.27. Within diagnostic codes, specific ratings are determined by the application of criteria which are based on the average impairment of earning capacity caused by the rated disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.321(a). When there is a question as to which of two evaluations should be assigned, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. If there is reasonable doubt as to the degree of disability, it is resolved in favor of the veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss, weakness, and pain on motion are all symptoms which must be considered. 38 C.F.R. § 4.40. As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. In rating disability of the joints, consideration must be given to demonstrated range of motion, pain on motion, excess fatigability, weakened motion, lack of coordination, and swelling, deformity, and atrophy from disuse. Id.; 38 C.F.R. § 4.45. Under the provisions of DC 5295 (lumbosacral strain), a 40 percent evaluation is warranted where the disorder is severe, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward flexion, loss of lateral motion, arthritic changes or narrowing or irregularity of intervertebral spaces, or some of the above with abnormal mobility on forced motion. An evaluation of 20 percent is warranted for muscle spasm on extreme forward flexion and loss of lateral spine motion on one side, and a 10 percent evaluation is warranted for characteristic pain on motion. In this case, the veteran's service medical records reflect a single episode in 1993, of about two weeks' duration, of complaints of low back pain. To be sure, she then gave a six- or seven-month history of low back pain, but apparently it was not so severe as to prompt her to seek medical attention at the time. After service, she first sought medical attention for back pain during a 1995 pregnancy, and next sought medical attention for back pain during a 1996 pregnancy. Except for mild tenderness to palpation of the low back, none of the medical evidence of record, neither treatment records nor examination reports, reflect positive findings relative to a back disorder. It is not entirely clear that she has characteristic pain on motion so as to warrant a 10 percent evaluation, but it is quite clear that she does not demonstrate muscle spasm on extreme forward flexion or a loss of lateral spine motion to warrant a 20 percent evaluation. We have considered the application of the DeLuca case and 38 C.F.R. §§ 4.40 and 4.45, but there is no evidence here of limitation of motion due to excess fatigability, weakened motion, lack of coordination, swelling, deformity, or atrophy from disuse. Indeed, examiners have always recorded full range of motion, and that fact was clearly shown during the February 1999 examination. There is evidence of pain or tenderness, but the Board is of the view that the veteran is adequately compensated therefor by the 10 percent evaluation currently assigned. We have also considered the application of other diagnostic codes, but a compensable evaluation would not be warranted under DC 5292 (limitation of motion of the lumbar spine), and there is no evidence of a neurologic disorder emanating from the back, so DC 5293 (intervertebral disc syndrome) is not applicable, either. We further note that, in view of the Court's holding in Fenderson, supra, the Board has considered whether the veteran was entitled to a "staged" rating for her service- connected disability, as the Court indicated can be done in this type of case. Reviewing the longitudinal record in this matter, we find that, at no time since the effective date of the veteran's award of service connection, has her low back disorder been more disabling than as currently rated under this decision. At her hearing, the veteran lamented the lack of improvement in her condition, and the Board is sympathetic to her complaint. We also appreciate the effort involved in the veteran's traveling to attend the hearing, even though she had difficulty with child care on the appointed day. However, we are bound by the evidence and the law, including the Schedule for Rating Disabilities and the rating criteria therein. In the absence of evidence of greater disability, a rating in excess of 10 percent is not warranted at this time. Should the disorder become more disabling, the veteran should feel free to seek an increased rating. ORDER Entitlement to an evaluation in excess of 10 percent for a low back disorder is denied. ANDREW J. MULLEN Member, Board of Veterans' Appeals