Citation Nr: 0002090 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 98-17 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased evaluation for herniated nucleus pulposus, lumbar spine, with residual right lumbar radiculopathy, currently evaluated as 60 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The veteran served on active duty from March 1952 to January 1956. This appeal arises from a July 1998 rating decision of the Department of Veterans Affairs (VA), Montgomery, Alabama, regional office (RO). In October 1999, a hearing was held in Montgomery, Alabama, before the Board member rendering this decision, who was designated by the Chairman to conduct that hearing pursuant to 38 U.S.C.A. § 7102(b) (West 1991 & Supp. 1999). At the hearing, the veteran's representative raised the issue of entitlement to a 100 percent evaluation based on the veteran's inability to work due to his service connected back disability. The representative also submitted statements from private physicians who indicated that the veteran was totally disabled. The Board hereby refers the veteran's implied claim for a total rating under 38 C.F.R. § 4.16(a) to the RO for initial adjudication. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claim. 2. The veteran's service connected low back disability is manifested by severe limitation of lumbar spine motion, pronounced intervertebral disc syndrome with characteristic pain, neuropathy and some loss of sensation, but not by complete unfavorable ankylosis of the entire spine. CONCLUSION OF LAW The schedular criteria for an evaluation in excess of 60 percent for herniated nucleus pulposus, lumbar spine, with residual right lumbar radiculopathy, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.10, 4.40, Codes 5286, 5293 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a)(West 1991). That is, he has presented a claim which is plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). The veteran injured his lower back during service, and herniated nucleus pulposus was diagnosed in 1955. Service connection was granted for postoperative herniated nucleus pulposus in June 1962. A 20 percent evaluation was assigned from June 1962. An April 1967 rating decision increased the evaluation to 40 percent from February 1967. An October 1975 rating decision increased the evaluation to 60 percent for herniated nucleus pulposus, lumbar spine, with residual right lumbar radiculopathy. This evaluation has been continued in subsequent rating actions. The veteran contends that he is entitled to a higher evaluation. Musculoskeletal disorders are rated with consideration of the resulting functional impairment. 38 C.F.R. §§ 4.1, 4.10, 4.40, 4.42 (1999). See DeLuca v. Brown, 8 Vet. App. 202 (1995). The veteran's lower back disability is currently evaluated at the maximum rating under Code 5293. The current 60 percent evaluation contemplates a pronounced intervertebral disc syndrome, 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, with little intermittent relief. 38 C.F.R. Part 4, Code 5293 (1999). A 100 percent rating is available under code 5286 where the evidence demonstrates complete unfavorable ankylosis of the entire spine. 38 C.F.R. Part 4, Code 5286 (1999). In October 1996, the veteran underwent a thoracic laminectomy for internalization of dorsal column stimulator, battery pulse generator. A VA examination was conducted in January 1998. The veteran reported pain, weakness, stiffness, fatigability, and lack of endurance. He reported daily flare-ups, precipitated by standing, and causing a 10 percent additional impairment. The veteran indicated that he had used a back brace in the past and currently used a cane at times. On examination, ranges of lumbar spine motion were measured as follows: forward flexion, 18 degrees; backward extension, 0 degrees; flexion to the right, 10 degrees; flexion to the left, 7 degrees. The examiner indicated that motion stopped when the pain began, but that it was impossible to assess to what extent if any the range of motion or spinal function was additionally limited by pain, fatigue, weakness, or lack of endurance. The veteran walked with a limp favoring the right, got in and out of his chair with caution, and held his lumbar spine stiff. Spinal musculature was described as adequate. The diagnosis was degenerative joint disease and ankylosis, lumbar spine, with loss of motion and functional loss due to pain. In March 1999, the veteran was seen with complaints of sciatica and some incontinence of urine. Examination showed motor strength of 5/5. Sensation was decreased in the S1 distribution bilaterally. Deep tendon reflexes were 2 at the knees and absent at the ankles. Toes were downgoing bilaterally, and straight leg raising test was negative. The impression was acute exacerbation of right sciatica. An October 1999 statement from Claudia J. McDonald, M.D., indicated that the veteran had an intrathecal catheter and Medtronic continuous infusion pump in place dispensing Morphine Sulfate intraspinally for pain control. When considering the recent medical evidence, it is apparent that the veteran has severe limitation of lumbar spine motion, pronounced intervertebral disc syndrome with characteristic pain, neuropathy and some loss of sensation. There is no showing of intermittent relief. The Board is of the opinion that the recent findings demonstrate that the veteran's service connected low back disability is properly evaluated at the maximum 60 percent level under code section 5293. 38 C.F.R. § 4.7 (1999). The complaints of pain made by the veteran are contemplated in the 60 percent disability, and are not subject to a higher evaluation; in this regard the Board notes that the VA examiner was unable to say that the range of motion or spinal function was additionally limited by pain, fatigue, weakness, or lack of endurance. See DeLuca, supra. The veteran is not entitled to a 100 percent rating under code 5286 since complete unfavorable ankylosis of the entire spine is not demonstrated. 38 C.F.R. Part 4, Code 5286 (1999). Since the weight of the evidence for and against the claim is not in relative equipoise, the reasonable doubt rule does not apply. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). ORDER The appeal is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals