Citation Nr: 0005173 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-12 284 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE A determination of the propriety of the initial disability rating of 20 percent assigned to the veteran's service- connected lumbosacral strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Andrew E. Betourney, Associate Counsel INTRODUCTION The veteran retired from active military service in August 1993 with 20 years of active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which granted the veteran's claim for service connection for lumbosacral strain, and assigned a 20 percent disability rating thereto. The veteran filed a timely appeal to the disability rating assigned. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the RO. 2. The veteran's lumbosacral strain is productive of significant loss of range of motion and additional functional impairment due to pain and flare-ups. CONCLUSION OF LAW Resolving reasonable doubt in the veteran's favor, the schedular criteria for a 40 percent rating for lumbosacral strain have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.71a, Diagnostic Codes 5292 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran has claimed entitlement to a rating in excess of 20 percent for his service-connected low back pain. This is an original claim placed in appellate status by a notice of disagreement (NOD) taking exception to the initial rating award dated in November 1997. Accordingly, his claim must be deemed well grounded within the meaning of 38 U.S.C.A. § 5107(a), and VA has a duty to assist the veteran in the development of the facts pertinent to his claim. See Fenderson v. West, 12 Vet. App. 119, 127 (1999) (applying duty to assist under 38 U.S.C.A. § 5107(a) to initial rating claims); cf. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (increased rating claims). Under these circumstances, VA must attempt to obtain all such medical evidence as is necessary to evaluate the severity of the veteran's disability from the effective date of service connection to the present. Fenderson, supra., citing Goss v. Brown, 9 Vet. App. 109, 114 (1996); Floyd v. Brown, 9 Vet. App. 88, 98 (1996); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also 38 C.F.R. § 4.2 (ratings to be assigned "in the light of the whole recorded history"). This obligation was satisfied by the various VA examinations and treatment reports described below, and the Board is satisfied that all relevant facts have been properly and sufficiently developed. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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). Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (1999). Evidence relevant to the veteran's claim includes his service medical records, which indicate several instances of treatment for, and diagnoses of, low back problems. The veteran was first seen for complaints of low back pain in April 1982, at which time he reportedly injured his back in a fall. The examiner diagnosed low back strain. The veteran apparently re-injured his back during the latter part of March 1982, following another fall and heavy lifting. Diagnoses at that time included muscle strain and muscle spasm. The Board notes that subsequent records indicate that the March 1982 injury occurred when the veteran slipped and fell on ice. The veteran was again injured in November 1982 in a car accident, at which time his vehicle underwent a slow roll- over. Examiners at that time diagnosed acute lumbar strain. Subsequent service medical records indicate several instances of re-injuries, such as lifting injuries, with diagnoses including low back strain and muscle strain. Relevant post-service evidence includes various VA outpatient treatment notes dated from November 1994 to May 1997. These notes indicate that in February 1996, the veteran was seen for complaints of low back pain. At that time, he stated that he recently hurt his back while working for the United States Postal Service, when he lifted a 35 to 40 pound mail bag. He complained of low back pain, with radiation into his thighs. The examiner diagnosed lumbago. Also contained in these records are several treatment reports dated in March and April 1997. These records indicate that the veteran was treated at that time for an exacerbation of an "old back injury." Of particular note is a treatment record dated in late March 1997, at which time the veteran complained of back spasms for the previous two weeks. On clinical examination, straight leg raising was positive bilaterally, and his deep tendon reflexes were +2 bilaterally. The examiner diagnosed chronic back pain. Also relevant is a treatment note dated in mid-April 1997, which indicates that the veteran reported having suffered from back pain since the time of a "lifting episode" in 1983. He stated that since that time, he experienced back pain once or twice per year, with each episode lasting anywhere from one week to thirty days. He reported that his current flare-up started gradually in February 1997, and noted that he had been seen by a chiropractor seven times since February for adjustments and massage. On examination, the veteran had a normal range of motion, with pain upon more than 90 degrees of flexion. Sensation was intact to light touch, although the veteran reported some numbness in the past. Straight leg raising was positive at 80 degrees bilaterally. X-rays showed a disc bulge on the left at L4- L5. The examiner diagnosed disc bulge with right lower extremity sciatica. The Board also observes that a treatment note dated later in April 1997 indicated that the veteran had been accepted into a VA compensated work training (CWT) program in March, but had to stop working in his construction job after only two days due to an exacerbation of an old back injury. It was noted that the veteran had been unable to return to work since that time (more than one month earlier), and that he was inquiring about any additional CWT positions that were less labor intensive. However, the occupational therapist stated there were "[n]o positions available in CWT at this time that would accommodate vet's condition." In June 1997, the veteran underwent a VA examination. At that time, the veteran reported that he originally injured his back in 1983, when he slipped on ice while getting out of his jeep. He indicated that he was diagnosed with muscle spasm at that time, and had suffered from low back pain almost every day since. He stated that his low back pain usually started in the lower back, but then radiated into the buttock and down his right posterior leg into his instep. He noted that he had not had any paresthesias into the left leg since March of 1997. He complained that it was difficult to sleep and to find a comfortable position when sitting, standing, or lying. The examiner noted that the veteran underwent a magnetic resonance imaging (MRI) scan one year earlier, at which time the presence of a bulging disc at L4- L5 was found. On physical examination, the veteran walked without a limp. He had tenderness to palpation of the right sacroiliac joint, but no tenderness to palpation of the paraspinal musculature. His range of motion of the lower back was limited, with pain in all directions, as follows: flexion forward to 45 degrees; extension backward to 10 degrees; right and left lateral rotation to 20 degrees; and right and left lateral flexion to 20 degrees. Deep tendon reflexes were brisk at the knees and ankles, and the motor power of the feet was normal. He had normal sensation in all the dermatomes of the legs and feet. The examiner diagnosed low back pain without clinical evidence of motor or sensory nerve compression at this time, and a bulging disc at L4-L5, as confirmed by an MRI scan in December 1996. The veteran's low back pain has been evaluated as 20 percent disabling under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5295 (1999). Pursuant to this code, a 20 percent evaluation is warranted for lumbosacral strain which is manifested by muscle spasm on extreme forward bending and a loss of lateral spine motion, unilateral, in the standing position. A 40 percent rating is warranted when such lumbosacral strain is severe, with listing of the whole spine to the 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. A review of the evidence described above does not reveal that the veteran's low back disability is characterized by the manifestations contemplated by a 40 percent rating under DC 5295. In this regard, the evidence of record does not show listing of the spine, a positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with arthritic changes, or some of these manifestations with abnormal mobility on forced motion. As such, a 40 percent evaluation under DC 5295 is not warranted. Alternatively, a 20 percent evaluation is warranted for moderate limitation of motion of the lumbar spine, while a 40 percent evaluation is warranted for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1999). In this regard, the Board notes that on most recent VA examination in June 1997, the veteran had significant restriction in the range of motion of his lumbar spine. Further, this and other medical evidence of record indicates that the veteran's low back pain has repeatedly been reported to be productive of pain, and indeed painful motion was explicitly noted on the most recent VA examination. Further, the Board notes that the veteran's disability has been subject to flare-ups, and indeed his back pain was so termed by an examiner at the time of an exacerbation of low back pain in April 1997. In addition, the record reveals a long history of periods with a relative lack of symptomatology, followed by multiple instances of re-injury and exacerbation of symptomatology, both during and after service, often when lifting. Therefore, with consideration of the significant limitation of motion demonstrated on recent examination as well as the demonstrated objective evidence of painful motion and increased symptomatology with flare-ups, the Board finds that, with the resolution of all reasonable doubt regarding the degree of disability in the veteran's favor, a 40 percent evaluation is in order under DC 5292. See 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59 (1999); see also DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). However, since a 40 percent rating is the maximum rating allowed under DC 5292, a higher rating is not available under this code. The Board has also considered whether the veteran is entitled to a higher rating under the provisions of other, related codes. However, there is no evidence that the veteran suffers from complete bony fixation (ankylosis) of the lumbar spine, as contemplated by DC 5289. In addition, the Board notes that DC 5293, pursuant to which the severity of intervertebral disc syndrome is evaluated, also provides for a rating in excess of 40 percent and in light of the recent diagnosis of a bulging disc at L4-L5, an analysis under this code is appropriate. Pursuant to DC 5293, a 40 percent rating is warranted for severe intervertebral disc syndrome, with recurring attacks and only intermittent relief. A higher, 60 percent rating is warranted if the 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 review of the evidence detailed above reveals that the veteran does not have persistent symptoms compatible with sciatic neuropathy. While the veteran has complained of pain and numbness in his legs, particularly on the right, the evidence does not show that this symptomatology is "persistent." On the contrary, while the veteran did receive a single diagnosis of right lower extremity sciatica in April 1997, the results of the most recent examination in June 1997 showed no "clinical evidence of motor or sensory nerve compression." In addition, while the evidence does indicate the presence of paravertebral muscle spasm on at least one occasion in service, it does not indicate that the veteran suffers from absent ankle jerk or other neurological findings of such severity to warrant a 60 percent rating under DC 5293. Thus, an increased rating under the provisions of DC 5293 is not warranted by the evidence. For the foregoing reasons, the Board finds that a 40 percent rating is the appropriate rating for the veteran's lumbosacral strain. The Board would point out that its determination of the instant claim is based solely upon the provisions of the VA's Schedule for Rating Disabilities. In Floyd v. Brown, 9 Vet. App. 88, 96 (1996), the Court held that the Board does not have jurisdiction to assign an extra- schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1) (1999) in the first instance. In this appeal, however, there has been no assertion or showing that the disability under consideration has caused marked interference with employment (i.e., beyond that contemplated in the assigned evaluation) or necessitated frequent periods of hospitalization so as to render the schedular standards inadequate and to warrant assignment of an extra-schedular evaluation. Although it does appear that the veteran was at least temporarily unable to work in 1997 due to an exacerbation of his low back pain, there is no evidence that he is currently unable to work, or has experienced other periods of inability to work due to his back pain. In addition, the Board notes that the veteran is also service connected for several other disabilities and has a long history of other significant disorders, all of which undoubtedly affect his employability as well. However, in the absence of an unusual or exceptional disability picture regarding the service-connected back disability alone, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A disability rating of 40 percent for lumbosacral strain is granted, subject to the controlling regulations governing the payment of monetary awards. S. L. KENNEDY Member, Board of Veterans' Appeals