Citation Nr: 0005609 Decision Date: 03/01/00 Archive Date: 03/14/00 DOCKET NO. 98-12 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for postoperative herniated nucleus pulposus of the lumbar spine, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD E. Pomeranz, Associate Counsel INTRODUCTION The appellant served on active duty from September 1961 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 1997 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Waco, Texas. The Board notes that in the appellant's Notice of Disagreement (NOD), dated in January 1998, the appellant requested a hearing at the RO before a local hearing officer. However, the Board observes that a Conference Report, dated in April 1998, reflects that at that time, the Decision Review Officer stated that if the appellant was willing to cancel his hearing request, a VA examination would be ordered. According to the Report, the appellant elected to forego his hearing in lieu of an examination. The Board further notes that in the appellant's November 1998 substantive appeal, the appellant indicated that he wanted a personal hearing before a member of the Board in Washington, D.C. A correspondence from the Board to the appellant, dated in October 1999, shows that at that time, the Board had scheduled the appellant for a hearing on November 4, 1999. However, in a correspondence from the appellant's wife to the Board, received on October 21, 1999, the appellant's wife stated that because of the appellant's health, he would not be able to attend the scheduled November 1999 hearing. Upon receipt of the above correspondence, the Board sent a correspondence to the appellant, dated on October 21, 1999, indicating that the letter from his wife could not be accepted as a cancellation because he did not sign or write the letter. Thus, on October 27, 1999, the Board received a letter from the appellant indicating his desire to cancel his personal hearing at the Board in Washington, D.C. FINDING OF FACT The evidence of record does not show that the appellant's postoperative herniated nucleus pulposus of the lumbar spine results in more than severe impariment. CONCLUSION OF LAW An evaluation in excess of 40 percent for postoperative herniated nucleus pulposus of the lumbar spine is not warranted. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1. 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5293 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The appellant was originally granted service connection for the residuals of a low back injury, with chronic low back pain, in a July 1982 rating action. At that time, the decision was primarily based on the appellant's service medical records and an April 1982 VA examination. The appellant's service medical records showed that in February 1982, the appellant strained his back while serving in the National Guard. At that time, he was pulling a stake out of the ground, slipped on the ice, and strained his back. The appellant was subsequently diagnosed with intervertebral disc syndrome. In March 1982, he was hospitalized and diagnosed with L5-S1, herniated nucleus pulposus (HNP), with left sided sciatica, and underwent a lumbar myelography. The myelography was interpreted as showing low back syndrome, cause undetermined. In addition, in the appellant's April 1982 VA examination, the appellant was diagnosed with low back injury, with chronic low back pain and symptoms of left nerve root irritation, with mild neuropathy in the left lower extremity. In light of the above, the appellant was assigned a 40 percent disabling rating under Diagnostic Code 5295. In an April 1984 rating action, the RO reduced the appellant's disabling rating for his service-connected residuals of a low back injury, with lumbosacral strain, from 40 percent to 20 percent disabling under Diagnostic Code 5295. The appellant filed a timely appeal, and in a February 1985 decision, the Board denied the appellant's claim for entitlement to an increased rating for the residuals of a low back injury, with lumbosacral strain. At that time, the Board concluded that the appellant's residuals of a low back injury, with lumbosacral strain, were manifested by a moderate limitation of flexion of the lumbar spine, with pain on motion, without listing of the whole spine, positive Goldthwait's sign, and without osteoarthritic changes or abnormality of joint spaces. A private medical statement from M.E.T., D.O., dated in September 1984, shows that at that time, Dr. T. stated that the appellant had a back brace in place. According to Dr. T., the brace was medically necessary due to the fact that the appellant had batwing sacrum and had difficulty with his low back continuously when lifting. Dr. T. indicated that the appellant was to wear the brace and be allowed to receive a new one every year, indefinitely. In February 1986, the appellant underwent a VA examination. At that time, he was diagnosed with a history of musculoligamentous sprain of the lumbosacral spine, with residual low back pain which was probably aggravated by minor articular facet arthritic changes and the altered mechanics secondary to a markedly sacralized L5 segment. The examining physician noted that the appellant had mild to moderate impairment of back function. A private medical statement from S.D.R., M.D., dated in November 1987, shows that at that time, Dr. R. stated that the appellant had been experiencing quite severe pain in his lower back, extending to the left buttock and down the left leg. Dr. R. indicated that a computed axial tomography (CAT) scan of the appellant's lumbar spine was performed and appeared to show prominent central bulging and possible herniation of the L4-5 disc. In February 1988, the appellant underwent a VA examination. At that time, the physical examination showed that the appellant's back was quite rigid and that all of the left leg had decreased sensation as compared to the right. A recent CAT scan evaluation demonstrated a bulging of the L4-5 disc. The examining physician noted that the bulging was of moderate magnitude and was possibly defining pressure on the nerve root. In an April 1988 rating action, the RO increased the appellant's disabling rating for his service-connected back disability, characterized as residuals of a low back injury, with lumbosacral strain and bulging of L4-5 disc, from 20 percent to 40 percent disabling under Diagnostic Code 5293. In October 1988, the RO received outpatient treatment records from the VA Medical Center (VAMC) in Oklahoma City, from February to August 1988. The records reflect that in August 1988, the appellant underwent a computed tomography (CT) and myelogram of the lumbar spine. The CT and myelogram were interpreted as showing normal filling of the spinal canal and lumbar nerve roots, with no evidence of stenosis or familial compression. A private medical statement from Dr. S.D.R., dated in January 1994, shows that at that time, Dr. R. stated that the appellant's December 1993 CT scan was interpreted as showing no significant abnormalities. Dr. R. indicated that in light of the recent CT scan, it was obvious that the appellant's back condition had not gotten any worse. In May 1995, the RO received outpatient treatment records from the Oklahoma City VAMC, from January 1993 to February 1995. The records show intermittent treatment for the appellant's back disability. In March 1996, the RO received private medical records from the Bethania Hospital, from November to December 1995. The records include a private medical statement from P.N.R., M.D., dated in November 1995, which shows that at that time, Dr. R. stated that he had recently examined the appellant after he had developed some pain in the right hip and leg. Dr. R. indicated that the appellant's October 1995 Magnetic Resonance Imaging (MRI) scan showed a disc herniation at L5- S1 on the right, with a small extruded fragment. Otherwise, his lumbar spine MRI examination was negative. Dr. R. noted that upon physical examination, the appellant favored his right leg in walking. The appellant's straight leg raising was impaired on the right and was forward bending generally. The appellant's right reflex was absent compared to the left, and he was not aware of any numbness. Dr. R. stated that he was not sure whether the appellant had any weakness. He noted that the appellant possibly had a little weakness in the dorsiflexors of the right toes, but that that was equivocal. According to Dr. R., he explained to the appellant that he could continue with conservative management or consider surgical intervention. The Bethania Hospital records show that in December 1995, the appellant underwent a semi-hemilaminectomy at L5-S1, right, and L4-5, right, and an excision of a herniated nucleus pulposus at L4-5, right. The appellant's postoperative diagnosis was of a herniated nucleus pulposus at L4-5, right. The records include a Surgical Pathology Report, dated in December 1995. The Report reflects that incidental soft tissue and bone from the appellant's lumbar spine were examined, and the impression was of intervertebral disc at L4-5, with fragments of cartilage showing degenerative changes. In an April 1996 rating action, based on the appellant's December 1995 surgery, the RO assigned a temporary total (100 percent) rating pursuant to 38 C.F.R. § 4.30, effective December 14, 1995, and assigned a 40 percent rating under Diagnostic Code 5293, effective February 1, 1996. In correspondence received on June 7, 1996, the appellant requested that his service-connected back disability be re- evaluated for a higher rating. In July 1996, the RO received private medical records from the Bethania Hospital, from May to June 1996. The records reflect that in May 1996, the appellant was hospitalized after complaining of pain in his left leg and back. At that time, it was noted that a recent MRI scan was interpreted as showing a disc herniation at L4-5, on the left. Upon physical examination, the examining physician stated that the appellant favored his left leg minimally in walking. According to the examiner, it was possible that the appellant had a little weakness in dorsiflexion of the left toes. The examiner stated that sensation seemed to be intact, and reflexes appeared to be within reasonable limits, although the left ankle jerk might have been a little bit more than the right. The appellant was diagnosed with a herniated nucleus pulposus at L4-5, left. According to the records, the appellant subsequently underwent a semi-hemilaminectomy at L4-5, left, with excision of herniated nucleus pulposus. The appellant's postoperative diagnosis was of a herniated nucleus pulposus at L4-5, left. The Bethania Hospital records include a Surgical Pathology Report, dated in May 1996. The Report reflects that incidental tissue and bone from the appellant's lumbar spine were examined, and the impression was of intervertebral disc at L5-S1, with degenerating disk components. In an August 1996 rating action, based on the appellant's May 1996 surgery, the RO assigned a temporary total (100 percent) rating pursuant to 38 C.F.R. § 4.30, effective May 30, 1996, for the appellant's back disability, characterized as herniated nucleus pulposus, postoperative, residual of low back injury. In addition, the RO assigned a 40 percent rating under Diagnostic Code 5293, effective September 1, 1996. In October 1996, the appellant underwent a VA examination. At that time, he stated that prior to his back injury, he worked at the Pillsbury Flour Mills. The appellant indicated that following his back injury, he did not return to work because his employer was concerned that he would hurt his back again. He noted that his former employer had a standing rule that an employee had to be able to pick up 80 pounds. The appellant gave a history of his back surgeries and he indicated that at present, he had problems in his back and legs. He reported that he was unable to stand or sit for any extended period of time. The physical examination showed that the appellant stood without abnormal curvatures. Straight leg raising was to 70 degrees, bilaterally. Knee jerks and ankle jerks were symmetrical and active. The appellant could heel walk and toe walk, and pedal pulses were satisfactory on both sides. The examining physician stated that the appellant was just recovering from a recent low back operation. The examiner also noted that the appellant's employment record appeared to be related not only to his back problem, but also to his lack of educational background and to his other health problems, such as a history of angina and a triple coronary artery bypass. According to the examiner, the appellant had attended high school through the ninth grade. The examiner further stated that currently, between the back and the concurrent problems, the appellant was not a candidate for a vigorous active job. The examiner noted that the appellant's education seemed to limit his possibility along other lines. An x-ray of the appellant's lumbar spine was interpreted as showing normal curvature and alignment. Vertebral bodies and disc spaces appeared maintained, and sacroiliac joints were within normal limits. In September 1998, the appellant underwent a VA examination. At that time, he gave a history of his service-connected back disability and related surgeries. The appellant stated that at present, he had chronic low back pain and that he had recurrent sharp pain in the low back. He indicated that his physical activities were limited because of the pain and that he did not have any symptoms of weakness. According to the appellant, he could stand for approximately five or ten minutes, and sit for ten or 15 minutes. The appellant noted that in regards to driving, he could sit for approximately 30 to 40 minutes and then he would have to stop and get out and stretch. He reported that he tried to avoid lifting, although in the grocery store, he would lift five or ten pounds. The appellant revealed that he tried to avoid bending, which was symptomatic, and that he took Motrin or Tylenol once a day for the pain. The physical examination showed that the appellant walked without the use of aids. He walked with a slow gait, but with normal weight bearing on his lower extremities and with a normal posture. The examining physician noted that when the appellant got out of the examining chair, he used his upper extremities to push up on the arm chairs. The examiner further stated that with dressing and undressing, the appellant's movements were slow and he had guarded movements of the low back, but he had no expression of pain with walking, dressing, undressing, nor did he have any expression of pain during the examination. The appellant's low midline lumbar surgical scar was well healed and nontender. He had a normal spinal curvature, and he did not express any pain with punch over the vertebrae. The appellant did not have any paravertebral muscle spasm or tenderness. Flexion was to 40 degrees, hyperextension was to 20 degrees, and rotation, bilaterally, was to 30 degrees. The examiner noted that although the appellant stated that he had pain with the above movements, he did not have any expression of pain. The appellant did not have sciatic notch tenderness. Straight leg raising was negative, bilaterally, and there was no evidence of any neurological deficit in the lower extremities. Following the physical examination, the appellant was diagnosed with postoperative lumbar diskectomy symptomatic with limitation of motion of the lumbosacral spine, with no neurological deficit found in the lower extremities. The examiner noted that the appellant's functional loss was secondary only to pain and was moderate. The examiner stated that the appellant was neurologically normal in the lower extremities, and as such, his muscle mass in the legs, bilaterally, was normal. According to the examiner, the appellant had normal motor strength in both legs, and he had no sensory loss in the lower extremities. The appellant's knee and ankle jerks were 2+ and equal bilaterally. A private medical statement from M.K.P., M.D., dated in October 1999, shows that at that time, Dr. P. stated that he was currently treating the appellant. Dr. P. indicated that the appellant had low back pain, with radiculopathy, and was unable to travel long distances by car. In October 1999, the RO received a correspondence from the appellant's wife, Mrs. R.N. The correspondence shows that according to Mrs. N., due to the appellant's back disability, he could not ride in a car for a very long period of time. According to Mrs. N., the appellant's back would become stiff, and he had lost some feeling in his legs and feet. Mrs. N. stated that the appellant had trouble getting out of a chair. II. Analysis Initially, the Board finds that the appellant's claim for an increased rating is well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999). This finding is based in part on his assertion that his service-connected back disability has worsened. See Arms v. West, 12 Vet. App. 188, 200 (1999), citing Proscelle v. Derwinski, 2 Vet. App. 629 (1992). When the appellant submits a well-grounded claim, VA must assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant evidence is of record and the statutory duty to assist the appellant in the development of evidence pertinent to his claim has been met. Disability ratings are determined by the application of a schedule of ratings, 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. § Part 4 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (1999). Where there is a question as to which of two evaluations is to 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 (1998). Where an increase in a service-connected disability is at issue, the present level of disability is of primary concern. Although review of the recorded history of a service- connected disability is important in making a more accurate evaluation (see 38 C.F.R. § 4.2), the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). As previously stated, the appellant's postoperative herniated nucleus pulposus of the lumbar spine has been rated as 40 percent disabling under Diagnostic Code 5293. Under Diagnostic Code 5293, a 40 percent rating requires severe intervertebral disc syndrome with recurring attacks with intermittent relief. A 60 percent rating requires pronounced impairment 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 diseased disc and little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (1999). The Board further notes that under Diagnostic Code 5292, ratings are based on limitation of motion of the lumbar spine, and severe limitation of motion warrants a 40 percent rating, the highest rating assignable under that code. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1999). In addition, under Diagnostic Code 5295, a 40 percent evaluation requires severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint spaces. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (1999). The Board observes that a 40 percent rating is the highest rating assignable under that code. Therefore, an increased evaluation under Diagnostic Codes 5292 and 5295 is not possible, as a 40 percent evaluation is already assigned to the appellant's low back disability, which is the maximum evaluation under both Diagnostic Code 5292 and Diagnostic Code 5295. Id. To summarize, the appellant contends that his current rating is not high enough for the amount of disability that his back disability causes him. He indicates that he has chronic back pain, and that he cannot sit or stand for extended periods of time. In addition, he has submitted a statement from his wife in support of his contentions. In this regard, lay statements are considered to be competent evidence when describing symptoms of a disease or disability or an event. However, symptoms must be viewed in conjunction with the objective medical evidence of record. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In the instant case, the Board notes that in December 1995, the appellant underwent a semi-hemilaminectomy at L5-S1, right, and L4-5, right, and an excision of a herniated nucleus pulposus at L4-5, right. The appellant's postoperative diagnosis was of a herniated nucleus pulposus at L4-5, right. In addition, in May 1996, the appellant underwent a semi-hemilaminectomy at L4-5, left, with excision of herniated nucleus pulposus. The appellant's postoperative diagnosis was of a herniated nucleus pulposus at L4-5, left. The Board further observes that in the appellant's October 1996 VA examination, straight leg raising was to 70 degrees, bilaterally, and knee and ankle jerks were symmetrical and active. Moreover, the appellant could heel walk and toe walk, and pedal pulses were satisfactory on both sides. In the appellant's most recent VA examination, the appellant did not have any paravertebral muscle spasm or tenderness. In addition, he also did not have sciatic notch tenderness. Straight leg raising was negative, bilaterally, and there was no evidence of any neurological deficit in the lower extremities. The appellant was diagnosed with postoperative lumbar diskectomy symptomatic, with limitation of motion of the lumbosacral spine, with no neurological deficit found in the lower extremities. The examiner further noted that the appellant's functional loss was secondary only to pain and was moderate. Moreover, the examiner indicated that the appellant's knee and ankle jerks were 2+ and equal, bilaterally, and that he had no sensory loss in the lower extremities. The Board has considered the recent evidence of record but finds that there is no basis for a higher evaluation under Diagnostic Code 5293. The Board recognizes that in the private medical statement from Dr. M.K.P., dated in October 1999, Dr. P stated that the appellant had low back pain with radiculopathy. However, the Board observes that, as stated above, in the appellant's most recent VA examination, dated in September 1998, there was no evidence of any neurological deficit in the lower extremities. In addition, the appellant did not have any paravertebral muscle spasm or tenderness, the appellant's knee and ankle jerks were 2+ and equal, bilaterally, and he did not have sciatic notch tenderness. As previously stated, under Diagnostic code 5293, a 60 percent rating requires evidence of demonstrable muscle spasm, absent ankle jerk, or other neurological findings, all of which must be productive of pronounced impairment, in addition to the appellant's diagnosed low back pain with radiculopathy. See generally DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. In light of the foregoing, the Board determines that an increased disability evaluation for the appellant's service-connected postoperative herniated nucleus pulposus of the lumbar spine, is not warranted. As the foregoing medical data shows no evidence of a fractured vertebra, without cord involvement, abnormal mobility requiring a neck brace, or ankylosis of the lumbar spine, as required under diagnostic codes 5285, 5286, and 5289, the record reflects that the appellant's service- connected postoperative herniated nucleus pulposus of the lumbar spine is most appropriately rated at the 40 percent rate under Diagnostic Code 5293. The Board has considered all pertinent sections of 38 C.F.R. § Parts 3 and 4 as required by the Court in Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that the preponderance of the evidence is against the claim for an increased rating for postoperative herniated nucleus pulposus of the lumbar spine. Finally, pursuant to 38 C.F.R. § 3.321(b)(1), an extraschedular rating is in order when there exists such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Clearly, due to the nature and severity of the appellant's service-connected back disability, interference with the appellant's employment is foreseeable. However, the record does not reflect frequent periods of hospitalization because of the service-connected disability in question, nor interference with employment to a degree greater than that contemplated by the regular schedular standards. Moreover, the Board observes that in the appellant's October 1996 VA examination, although the examiner stated that the appellant was not a candidate for a vigorous active job, he also indicated that the appellant's employment record appeared to be related not only to his back problem, but also to his lack of educational background and to his other health problems, such as a history of angina and a triple coronary artery bypass. Cf. VAOPGCPREC 6-96, 61 Fed. Reg. 66759 (1996) (regarding extraschedular consideration pursuant to 38 C.F.R. § 4.16(b), in the context of an appealed increased rating claim). Further, the record reflects that the appellant was last hospitalized in 1996 for his service-connected lumbar spine disability. Thus, the evidence of record does not reflect any factor which takes the appellant outside of the norm, or which present an exceptional case where his currently assigned 40 percent rating is found to be inadequate. See Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Accordingly, the Board determines that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not meet. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Accordingly, the Board views its discussion as sufficient to inform the veteran of the elements necessary to complete his application for a claim for increased VA benefits on an extraschedular basis. See Spurgeon v. Brown, 10 Vet. App. 194, 197-98 (1997); Robinette v. Brown, 8 Vet. App. 69, 80 (1995). ORDER An increased rating for postoperative herniated nucleus pulposus of the lumbar spine is denied. DEBORAH W. SINGLETON Member, Board of Veterans' Appeals