Citation Nr: 0007037 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 94-30 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an increased evaluation for degenerative disc disease of the lumbar spine, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from April 1967 to December 1992. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a September 1993 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs Regional Office (VARO), which in part denied service connection for a right leg disorder. In his substantive appeal, the appellant indicated that he was actually seeking service connection for sciatica related to his service- connected low back disorder. The Board remanded the case in April 1996 for a VA examination to determine whether or not sciatica was part of the appellant's service-connected low back disability. In a July 1996 rating decision, VARO expanded the grant of service connection for low back disability to include sciatica. The case was thereafter returned to the Board and the issue was recharacterized as a claim for increase for low back disorder with sciatica. See Holland v. Brown, 9 Vet.App. 324 (1996). However, the Board subsequently determined that further evidentiary development was necessary to comply with DeLuca v. Brown, 8 Vet.App. 202 (1995). As such, this case was again remanded in March 1997. During the pendency of this appeal, we note that the appellant changed his permanent address from the St. Petersburg, Florida, vicinity to the Boston, Massachusetts, area. The case has been returned to Board and is ready for a disposition on the merits of the claim. We note that the record does not show that VARO considered referral of this case to the Chief Benefits Director or the Director, Compensation and Pension Service, for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). The United States Court of Appeals for Veterans Claims (Court) has recently held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from considering whether referral to the appropriate first-line official is required. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet.App. 88 (1996). Moreover, the Court has also held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only when circumstances are present which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). Having reviewed the record with these holdings in mind, the Board finds no basis for action on the question of the assignment of an extraschedular rating. FINDING OF FACT The appellant's service-connected low back disability is currently manifested by subjective complaints of low back pain and right leg sciatica, with clinical findings for degenerative disc disease with disc space narrowing, but absent objective evidence of restricted lumbar motion, movement associated with pain, or neurological deficits, including clinical evidence of sciatica. CONCLUSION OF LAW The schedular criteria for a rating in excess of 10 percent for degenerative disc disease of the lumbar spine are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 3.321, Part 4, Diagnostic Code 5010-5292 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty from April 1967 to December 1992. Service medical records were positive for low back complaints and objective findings for degenerative joint disease of the lumbar spine at L5-S1. The appellant filed a claim for service connection in February 1993 for multiple disabilities, which included low back condition. On VA examination in May 1993, the appellant reported recurrent low back pain, but clinical findings were negative for paraspinal tenderness, muscle spasms, or evidence of pain on motion. The range of lumbar motion was 90 degrees on flexion, 35 degrees on extension, 35 degrees on bilateral flexion, and 30 degrees on bilateral rotation. The diagnosis was degenerative joint disease of the lumbar spine. By a September 1993 rating decision, service connection was granted for degenerative joint disease of the lumbar spine at L5-S1 at the 10 percent disability level under diagnostic codes 5010-5292 (arthritis and limitation of lumbar motion). The appellant subsequently appealed this decision to the Board, arguing that a higher disability rating was warranted because of right leg symptoms associated with his back disorder. In June 1996, a VA peripheral nerve examination was conducted to determine whether the appellant had any right leg symptoms associated with his service-connected low back disability. There were subjective complaints of pain with range of motion that radiated down the right lower extremity, usually stopping above the knee, but no sensory loss, weakness, or sphincter disturbance. Objectively, there was normal strength, bulk, tone and reflexes. The right calf was 1 centimeter smaller than the left. There was restricted range of motion in the low back , but root traction signs were negative. The diagnoses included degenerative joint disease of the lumbar spine with decreased range of motion, right sciatica, and decreased calf circumference. In September 1997, a VA examination was conducted to evaluate the appellant's back disorder on both an orthopedic and neurological basis. The appellant reported low back pain along with right leg symptoms. Clinical findings reflect normal gait and upright posture, with normal range of lumbar motion and no pain associated with movements of the lumbar spine. No neurological deficits were found. There was normal motor and sensory function. Atrophy of the calf muscles was not shown. The examiner concluded that there was "no clinical evidence of sciatica." However, an MRI (magnetic resonance imaging) study was planned because of long-standing subjective symptoms of sciatica. The diagnoses included "low back pain, musculoskeletal in origin, without evidence of motor or sensory nerve compression." An MRI study dated September 1997 reflects findings for mild diffuse disc bulging at L4-5 with bony ridging and moderate narrowing of the disc space at L5-S1 with mild diffuse bony ridging. Vertebral body height, alignment, and marrow signal intensity appeared unremarkable except at L5-S1 where there were degenerative changes within the surrounding end plates about the disc space. ANALYSIS The appellant contends that the 10 percent evaluation assigned his service-connected degenerative disc disease of the lumbar spine does not reflect adequately the severity of his back symptomatology. He asserts that the evaluation should be increased based upon right leg symptoms, diagnosed as sciatica, associated with his back disorder, which has caused muscle atrophy of the right calf muscles. A claim for an increased evaluation is well grounded where the claimant asserts that a higher rating is justified due to an increase in severity of the service-connected condition. See Caffrey v. Brown, 6 Vet.App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet.App. 629, 631-632 (1992). As the appellant has claimed that his disabilities are more severe, his claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Once a claimant has presented a well-grounded claim, the VA has a duty to assist the claimant in developing facts which are pertinent to the claim. See 38 U.S.C.A. § 5107(a) (West 1991). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue on appeal has been obtained. Disability evaluations are determined by comparing the veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). In making its determination, the Board analyzes the extent to which a service-connected disability adversely affects a veteran's ability to function under the ordinary conditions of daily life, and bases the assigned rating, as far as practicable, on the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.10 (1999). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3 (1999). Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. While the entire recorded history of a disability is to be reviewed by the rating specialist, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that in assigning an appropriate rating, the policy against "pyramiding" of disability awards enumerated by 38 C.F.R. § 4.14 must be considered. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet.App. 532, 538 (1993). One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet.App. 625, 629 (1992). In this case, the Board considered whether another rating code is "more appropriate" than the one used by VARO. See Tedeschi v. Brown, 7 Vet.App. 411, 414 (1995). The appellant's low back disability is currently evaluated under diagnostic codes 5010 (arthritis) and 5292 (limitation of motion). A 10 percent rating is warranted for traumatic arthritic substantiated by x-ray findings where there is limitation of motion confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A 20 percent evaluation is warranted if there is traumatic arthritis substantiated by x-ray findings showing involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Limitation of lumbar motion is evaluated as 10, 20, and 40 percent disabling where there is objective evidence of slight, moderate or severely restricted motion, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5292. The Board observes that the appellant's low back disability may also be evaluated under the criteria for ankylosis, intervertebral disc syndrome, and lumbosacral strain. A 40 and 50 percent evaluation is provided by the schedule where there is objective evidence of favorable or unfavorable ankylosis, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5289. Under diagnostic code 5293 (intervertebral disc syndrome), a 10 percent evaluation is provided for mild intervertebral disc syndrome. A 20 and a 40 percent evaluation are provided for moderate intervertebral disc syndrome with recurring attacks and severe intervertebral disc syndrome with recurring attacks and only intermittent relief, respectively. Also, there is a 60 percent evaluation for pronounced intervertebral disc syndrome as shown by objective evidence of persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, little intermittent relief. 38 C.F.R. Part 4, Diagnostic Code 5293. Lastly, the schedule provides a 10 percent rating for lumbosacral strain with characteristic pain on motion, and a 20 percent rating where there are muscle spasm on extreme forward bending, loss of lateral spine motion. A 40 percent rating is provided for severe lumbosacral strain with listing of the whole spine to opposite side, positive Goldthwaite'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. 38 C.F.R. § 4.71, Diagnostic Code 5295. Having reviewed the appellant's complaints along with the objective medical findings of record, the Board finds that the schedular criteria for an evaluation in excess of 10 percent for degenerative disc disease of the lumbar spine at L5-S1, with sciatica, are not met. Although an MRI study in September 1997 showed mild diffuse disc bulging at L4-L5 and moderate narrowing of the disc space at L5-S1, clinical findings from VA examination in August 1997 reflect essentially no abnormalities of the lumbar spine and full range of motion with no objective evidence of pain. Additionally, there were no neurological deficits shown, including clinical evidence of sciatica. The objective medical evidence of record further fails to demonstrate ankylosis, moderate to pronounced intervertebral disc syndrome, or lumbosacral strain so as to warrant a higher evaluation. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59, along with the decision in DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the foregoing do not provide a basis for an increase. The medical evidence does not reveal any objective evidence of disuse atrophy, fatigue on use or additional limitation of function due to pain or any other symptoms. Accordingly, an evaluation in excess of 10 percent under 38 C.F.R. §§ 4.40, 4.45, and 4.59 is not in order. We note that, as the examiner found essentially no clinical abnormalities of the lumbar spine, such as limitation of motion or pain on motion, the Board believes that the August 1997 VA examination report contains sufficient information to comply with the Court's decision in DeLuca. Therefore, remand is not necessary as suggested by the February 2000 Informal Hearing Presentation from the appellant's representative. The Board notes that the provision of 38 C.F.R. § 3.102 is not for application in this case as there is not an approximate balance of the positive and negative evidence, which does not satisfactorily prove or disprove the claim, for the reasons discussed above. ORDER An increased rating for back disability is denied. C.P. RUSSELL Member, Board of Veterans' Appeals