Citation Nr: 0007052 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 97-32 899 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Entitlement to rating higher than 40 percent for a service- connected low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. L. Wasser, Associate Counsel INTRODUCTION The veteran served on active duty from October 1991 to March 1994. This case comes to the Board of Veterans' Appeals (Board) from an April 1997 RO decision which, in pertinent part, granted service connection and a 20 percent rating for a low back disability; the veteran appealed for a higher rating. In February 1998, the Board remanded the case to the RO for further evidentiary development. In a July 1999 decision, the RO granted a 40 percent rating for the low back disability. The case was subsequently returned to the Board. FINDING OF FACT The veteran's service-connected low back disability (lumbosacral disc disease, status post L5-S1 diskectomy) is currently productive of no more than severe limitation of motion of the low back, severe lumbosacral strain, and severe intervertebral disc syndrome; the veteran does not have pronounced intervertebral disc syndrome of the low back. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for a low back disability have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293, 5295 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran served on active duty in the Army from October 1991 to March 1994. A review of his service medical records shows that he was treated for low back pain. A private medical record from Dr. C. B. McNevin dated in January 1995 shows that he treated the veteran for a lumbar sprain/strain in the region of L4 and L5 in December 1994. He said the veteran made a good recovery and no permanent disability was noted. At a January 1995 VA examination, the veteran complained of constant low back pain which increased with activity or prolonged standing; he said he had approximately four episodes of low back pain requiring bed rest in the past year. He denied radiation of pain, and said he was presently asymptomatic. On examination, there was forward flexion to 80 degrees, backward extension to 20 degrees, left and right lateral flexion to 35 degrees, and left and right rotation to 35 degrees. The veteran reported pain with flexion of the low back. An X-ray study of the lumbosacral spine was normal. A low back disability was not diagnosed. Private medical records dated in 1996 from H. P. Tutt, M.D., reflect that in February 1996 he evaluated the veteran for complaints of back and right leg pain. On examination, there was moderately severe restriction of forward flexion, which produced back and right posterior thigh pain. He was able to walk on his toes and heels, but seemed to have a little trouble with right full weight bearing in plantar flexion. Lateral flexion of the back was well performed, straight leg raising was positive at 70 degrees on the left, and at 60 degrees on the right. There was mild to moderately positive right Lasegue sign, and there was no definite weakness in the lower limbs when the veteran was tested while lying down. There were no sensory deficits. A magnetic resonance imaging study (MRI) showed degenerative signal changes at L5-S1 with a moderately large protrusion centrally and toward the right at this level. The diagnosis was L5-S1 disc herniation with right S1 radiculopathy; surgery was recommended. In February 1996, the veteran underwent a right L5-S1 diskectomy with decompression of the cauda equina and right S1 nerve root. A March 1996 follow-up treatment note shows that the veteran was doing quite well postoperatively, and his right leg pain had been relieved. He reported morning back soreness and stiffness. On examination, his incision was clean and well-healed, the back muscles were supple, there was mild to moderate restriction of forward flexion, and straight leg raising was positive at 75 degrees bilaterally. There was no focal weakness in the lower limbs, knee and ankle jerks were normal, and there were no sensory deficits. The diagnostic impression was status postoperative L5-S1 diskectomy, doing well. A subsequent March 1996 treatment note shows that the veteran reported intermittent numbness on the outer aspect of his right lateral thigh when sitting. Dr. Tutt diagnosed meralgia paresthesia, which he said would pass, and said the veteran's neurological examination was normal. At a March 1996 VA orthopedic examination, the veteran reported that he had an L5-S1 laminectomy and excision of a herniated nucleus pulposus in February 1996, and complained of pain and numbness in the legs along the lateral thigh and buttock. He denied bowel or bladder symptoms. He said his pain was worse with twisting and leaning forward, and he only obtained relief by lying in a supine position with his legs flexed. On examination, the veteran walked with a rather rigid gait in his back, but had no fixed deformities. His back musculature was well within normal limits, and he had good tone and no paraspinous muscle trigger points. Range of motion was as follows: forward flexion to 40 degrees, backward extension to 10 degrees, left lateral flexion to 20 degrees, right lateral flexion to 25 degrees, left rotation to 10 degrees, and right rotation to 15 degrees. There was objective evidence of pain on motion, with facial grimacing and slow motion completing the movements. Straight leg raising tests were negative bilaterally. Reflexes were 2/4 in the Achilles and patellar tendons. On the right side, the hamstrings, including the extensor hallucis longus (EHL) and the extensor digitorum longus, were 4/5 in strength, and there was full strength of the quadriceps abductors and adductors, and the peroneals. There was full strength in all muscles of the left lower extremity. An X-ray study was consistent with post-operative laminectomy changes and disc space narrowing between L5-S1. The examiner opined that the current low back disability was related to service. At a June 1996 RO hearing, the veteran testified that he injured his low back during service, and had underwent back surgery in February 1996. He said he had constant back problems, including back pain which radiated down his right leg, and took pain medication for this condition. He also reported numbness in his right leg. In an April 1997 decision, the RO granted service connection for a low back disability, effective with the veteran's release from active duty in March 1994. A 10 percent rating was assigned effective from March 1994; a temporary total convalescent rating (38 C.F.R. § 4.30) was assigned, based on low back surgery, from February through May 1996, and a 20 percent rating was assigned from June 1996 for status post diskectomy at L5-S1. By a statement dated in August 1997, the veteran indicated he disagreed with that portion of the RO's decision which assigned a 20 percent rating for his low back condition after the expiration of the temporary total convalescent rating. He asserted that a higher rating should be assigned for his low back disability due to his pain and its effect on his ability to work. By a statement dated in October 1997, the veteran reiterated many of his assertions. He said he was only able to forward flex his back to the point where he placed his hands on his knees, and said that if he tried to flex any further, the pain was too great to do so. He reported pain, numbness, and spasm radiating from his low back down his right leg. He said these symptoms ranged from moderate to severe and he had little intermittent relief. He related that after his back surgery, he had to change to a more sedentary job because of his back condition. He said a VA doctor told him the only possible treatments were physical therapy or pain clinic visits. In February 1998, the Board remanded the case to the RO for a VA examination and in order to obtain ongoing medical records. By a letter to the veteran dated in March 1998, the RO requested that he provide authorizations for release of information regarding any private medical treatment he received for his service-connected low back disability since March 1996. A similar letter was mailed to the veteran in January 1999. The veteran did not respond to these letters. At an April 1999 VA orthopedic examination, the veteran reported that he was doing fine for about two months after his back surgery, and then went back to work and had worsening of his lumbar pain, which radiated down his leg. He stated that he had no improvements from his back surgery. He denied bladder problems and said he had mild constipation. He said sitting was worse, and he could only stand for forty- five minutes. He was able to sleep at night but he was sometimes had to flex his knees to relieve his discomfort. He said he never had periods when he had full relief of pain, and complained of slight weakness in his foot. He said he took pain medication, and did not use a cane, crutch, or brace. On examination, range of motion was as follows: forward flexion to 40 degrees, backward extension to 20 degrees, axial rotation to 25 degrees bilaterally, and lateral deviation to 30 degrees bilaterally. He was tender over the lumbar spine. Straight leg raising was positive on the right. There was full strength of the hip flexors, knee flexors, knee extensors, and dorsiflexion of the ankles bilaterally. There was full strength in plantar flexion of the left ankle, and on the right such flexion was 4/5. There was full strength of the EHL muscles. Sensation was intact. Dorsalis pedis pulses were 2+. An X-ray study showed a laminectomy for the L5-S1 region. An MRI showed moderate protrusion of the L5-S1 disc with scar tissue and possible herniated fragments in the canal. The diagnostic impression was status post herniated disc secondary to in-service injuries. The examiner opined that the veteran's limitations were on the order of 25 percent and the pathology was corroborated by his MRI and X-ray studies. In a June 1999 addendum, the examiner stated that the veteran's pain limited his motion, and that many of the veteran's problems with motion were due to his pain. At an April 1999 VA neurological examination, the veteran complained of a burning dysesthesia over the anterior surface of the thigh which was somewhat reminiscent of neuralgia paresthetica. He reported numbness over the lateral aspect of the right calf. Such complaints were episodic and transient, and between these periods he felt normal. He reported a sensation of the nerves "locking up in my leg," by which he apparently meant a sense of subjective give-way weakness in the knee or hip. He stated that this sensation was transient. He denied change in his bowel or bladder habit. He stated that his pain was exacerbated by sitting or standing for protracted periods, and felt his pain was relieved by sitting or resting in appropriate postures. The veteran currently complained of episodic pain in the right flank, right hip, right anterior thigh, right lateral calf and numbness over the right lateral foot. On examination, the veteran rose gracefully from a chair and walked to the examining room favoring his right leg. The examiner stated that a motor examination revealed normal motor bulk, tone, and strength throughout. There were no fasciculations, tremors, dyskinesias, myotonias, or other adventitious movements. A sensory examination was normal with the following exceptions: there was mild hypesthesia to pin prick, light touch and temperature over the lateral side of the right foot extending to the lateral ankle posterior to the malleolus. Patellar response was approximately equal on the right and the left, and Achilles response was diminished on the right. Both toes were downgoing on plantar stimulation. There were no pathologic reflexes. The veteran's stance was stable, there was no Romberg, and he could stand and hop on one foot. He could toe walk, tandem walk, and heel walk without significant difficulty. The examiner stated that on retesting there might be a slight weakness on dorsiflexion but such could not be reliably reproduced. The examiner opined that the veteran underwent a laminectomy and had developed exuberant scar tissue which was now entrapping the S1 nerve root. He noted that the veteran had undergone extensive imaging of the lumbosacral spine as well as the remainder of the spinal cord, and that none of these studies had disclosed a significant problem other than those described above. He stated that the veteran appeared to have developed chronic low back pain, and did not appear to have a lesion appropriate for surgical correction currently. The diagnosis was chronic low back pain. The examiner stated that the veteran's complaints of hip pain and anterior thigh pain were not consistent with his S1 root entrapment and were not reasonably attributed to such. He said that the veteran's complaints of numbness over the left side of the foot and the left side of the ankle were consistent with the root entrapment. He stated that nothing in the records suggested a physiologic or pathologic basis for the hip or anterior thigh pain. He noted that the veteran was moderately obese and might suffer from neuralgia paresthetica as a result of compression involving the lateral or anterior cutaneous nerves of the thigh. He opined that the veteran might have referred pain or might have developed a peripheral nerve problem from a cause other than his in-service injury. In a July 1999 decision, the RO granted a 40 percent rating for the service-connected low back disability, now characterized as lumbosacral disc disease, status post L5-S1 diskectomy. The 40 percent rating was effective in June 1996, after the expiration of the temporary total convalescent rating. II. Analysis The veteran appeals that portion of an initial RO rating which assigned a 40 percent rating for his service-connected low back disorder, effective after a temporary total convalescent rating for low back surgery. See Fenderson v. West, 12 Vet.App. 119 (1999). His claim for a higher rating is well grounded, meaning plausible. 38 U.S.C.A. § 5107(a). The file shows that the RO has properly developed the evidence, and there is no further VA duty to assist the veteran with his claim. Id. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4. A higher rating is not in order under the rating criteria pertaining to limitation of motion of the lumbar spine (38 C.F.R. § 4.71a, Diagnostic Code 5292) or lumbosacral strain (38 C.F.R. § 4.71a, Diagnostic Code 5295), as the maximum rating under these diagnostic codes (assigned when there is severe lumbar spine limitation of motion or severe lumbosacral strain) is 40 percent. Severe intervertebral disc syndrome, with recurring attacks and intermittent relief warrants a 40 percent evaluation. A 60 percent rating is the maximum rating for intervertebral disc syndrome, and is warranted when it 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 the site of the diseased disc, and little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293. The medical evidence (including examination and treatment reports dated to 1999) shows the veteran's service-connected lumbosacral disc disease, status post L5-S1 diskectomy, causes a moderate degree of limitation of motion, recurrent low back pain, and slight weakness of flexion of the right ankle. The disability is manifested by no neurological deficits other than mild hypesthesia to pin prick, light touch, and temperature over the lateral side of the right foot extending to the lateral ankle posterior to the malleolus. The disability is also manifested by a diminished Achilles response on the right. While the medical records show, at times, complaints of pain in the right lower extremity, there have been very few abnormal neurological findings appropriate to the site of a diseased disc. Even assuming worse intervertebral disc syndrome during flare-ups, and associated limitation of motion, the intervertebral disc syndrome is not shown to be more than severe in degree, with recurring attacks and intermittent relief, and such supports no more than a 40 percent rating under Code 5293. 38 C.F.R. §§ 4.40, 4.45; VAOPGCPREC 36-97. The evidence does not show pronounced (60 percent) intervertebral disc syndrome as described in Code 5293. Persistent symptoms as described in this code, with little intermittent relief, is not shown by the medical evidence. Thus, a higher rating under this code is not in order. The weight of the evidence shows the veteran's low back disability is no more than 40 percent disabling. As the preponderance of the evidence is against the veteran's claim, the benefit-of-the-doubt rule is inapplicable, and the claim for a rating in excess of 40 percent must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A higher rating for a low back disability is denied. L. W. TOBIN Member, Board of Veterans' Appeals