Citation Nr: 0011670	
Decision Date: 05/03/00    Archive Date: 05/09/00

DOCKET NO.  99-01 648	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, 
Texas


THE ISSUE

Entitlement to an evaluation for degenerative disc disease of 
the lumbar spine at L5-S1, L4-L5, with spondylosis, currently 
evaluated as 20 percent disabling.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L. M. Rogers, Associate Counsel 



INTRODUCTION

The veteran had active military service from January 31, 1974 
to November 13, 1974.  

This matter comes to the Board of Veterans' Appeals (Board) 
from a March 1998 rating decision of the Department of 
Veterans Affairs (VA) Houston, Texas Regional Office (RO).  
In that decision the RO continued a 20 percent disability 
evaluation for spondylolisthesis with anterior compression 
fracture of L-1 from May 1988.  The veteran perfected an 
appeal of the March 1998 decision.

In a December 1998 Statement of the Case, the RO changed the 
veteran's diagnosis to degenerative disc disease of the 
lumbar spine, L5-S1, L4-L5, with spondylosis.  

The current award is less than the maximum evaluation 
available and consequently the issue remains in appellate 
status.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  


FINDINGS OF FACT

1.  All relevant evidence necessary for an informed decision 
on the veteran's appeal has been obtained by the RO.  

2.  The veteran does not have more than moderate limitation 
of motion of the lumbar spine or demonstrable evidence of 
painful motion reflecting more than moderate disability.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 20 percent for 
degenerative disc disease of the lumbar spine at L5-S1, L4-
L5, with spondylosis have not been met.  38 U.S.C.A. §§ 1155, 
5107 (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 
4.71a, Diagnostic Code 5292 (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Factual Background

In September 1974, the Physical Evaluation Board (PEB) 
determined that the veteran was physically unfit for service 
because of a diagnosis of spondylolisthesis and an anterior 
compression fracture of L-1, asymptomatic.  

In a rating decision dated in December 1974, the RO granted 
service connection for spondylolisthesis with anterior 
compression fracture of L-1 and assigned a 10 percent 
disability rating.  

During a December 1979 VA examination, the veteran had 
complaints of periodic low back pain.  Diagnoses were a 
history of spondylolisthesis with anterior compression 
fracture of L-1, spondylosis probably at L-4 and L-5 on the 
left side and possibly L-3 on the right side, symptomatic, 
chronic, mild clinically.  

VA Medical Center (VAMC) outpatient treatment records from 
May 1988 showed that the veteran had multiple levels of 
spondylosis with very slight spondylolisthesis at L5-S1.  
Assessment was spondylolisthesis at L5-S1 and chronic low 
back pain.  

VAMC outpatient treatment records from March 1997 to April 
1997 indicated that the veteran received treatment for 
complaints of chronic low back pain.  

In August 1998, the RO sent a letter to a private physician 
requesting the veteran's private medical records.  As of this 
date no reply has been received.  

During a November 1998 VA examination, the veteran reported 
having pain that was limited to his lower lumbosacral region 
and he reported having to wear a corset intermittently.  The 
veteran told the VA examiner that he did not suffer from any 
radicular pain.  

The VA examiner observed that the veteran was well-developed, 
well-nourished, in no acute distress, and moved about the 
room without any difficulty.  Upon physical examination, the 
veteran had good forward flexion to 60 degrees, backward 
extension to neutral, right side bending to 20 degrees, and 
left side bending to 20 degrees.  The veteran's toe to heel 
walking was normal.  A neurological evaluation revealed 
physiologic and symmetrical reflexes, strength and sensation 
in both lower extremities.  Internal and external rotation of 
the hips were normal, pulses were normal, straight leg 
raising was negative bilaterally, and no atrophy was 
appreciated.  

An X-ray report revealed no evidence of a compression 
fracture at L-1.  The veteran had spondylolytic defects at L-
4 and L-5.  However, there was no evidence of 
spondylolisthesis.  It was noted that the veteran had 
degenerative change at L5-S1 more so than L4-5.  Impression 
was degenerative disc disease of the lumbar spine at L5-S1 
and L4-L5 with spondylolysis.  The VA examiner found that the 
veteran's spondylosis and degenerative disc disease were not 
related to an in-service injury and that the veteran appeared 
to be moderately symptomatic and functioning well.  

II. Laws and Regulations

The veteran's increased rating claim is well grounded.  38 
U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. 
App. 78 (1990).  This finding is based on the veteran's 
contention regarding the increased severity of his service-
connected degenerative disc disease of the lumbar spine at 
L5-S1, L4-L5, with spondylosis.  See Jones v. Brown, 7 Vet. 
App. 134 (1994); Proscelle v. Derwinski, 2 Vet. App. 629 
(1992).  The Board is also satisfied that 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).

Disability ratings are based on the average impairment of 
earning capacity resulting from disability.  The percentage 
ratings for each diagnostic code, as set forth in the VA's 
Schedule for Rating Disabilities (Rating Schedule), codified 
in 38 C.F.R Part 4, represent the average impairment of 
earning capacity resulting from disability.  Generally, the 
degrees of disability specified are considered adequate to 
compensate for a loss of working time proportionate to the 
severity of the disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 
4.1.  

Disability of the musculoskeletal system is primarily the 
inability, due to damage or inflammation in parts of the 
system, to perform normal working movements of the body with 
normal excursion, strength, speed, coordination and 
endurance.  The functional loss may be due to absence of part 
or all of the necessary bones, joints and muscles, or 
associated structures, or to deformity, adhesions, defective 
innervation, or other pathology, or may be due to pain, 
supported by adequate pathology and evidenced by visible 
behavior of the claimant undertaking the motion.  Weakness is 
as important as limitation of motion, and a part which 
becomes painful on use must be regarded as seriously 
disabled.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 
C.F.R. § 4.40.

The factors of disability affecting joints are reduction of 
normal excursion of movements in different planes, including 
less movement than normal, more movement than normal, 
weakened movement, excess fatigability, incoordination, pain 
on movement, swelling, deformity, or atrophy of disuse.  38 
C.F.R. § 4.45.

Under the Rating Schedule, degenerative arthritis established 
by x-ray findings will be rated on the basis of limitation of 
motion under the appropriate diagnostic codes for the 
specific joint or joints involved.  See 38 C.F.R. § 4.71, 
Diagnostic Code 5003.  When, however, the limitation of 
motion of the specific joint or joints involved is 
noncompensable under the appropriate diagnostic codes, a 
rating of 10 percent is for application for each such major 
joint or group of minor joints affected by limitation of 
motion, to be combined, not added under 38 C.F.R. § 4.71, 
Diagnostic Code 5003 (1999).  

The veteran's low back disability is currently rated under 
Diagnostic Code 5292.  Diagnostic Code 5292 provides a 10 
percent rating for a slight lumbar spine limitation of motion 
and a 20 percent rating for a moderate lumbar spine 
limitation of motion.  A 40 percent rating may be assigned 
for a severe lumbar spine limitation of motion.  38 C.F.R. § 
4.71a, Diagnostic Code 5292 (1999).

Under Diagnostic Code 5293, a 10 percent evaluation is 
warranted for intervertebral disc syndrome that is mild, a 20 
percent evaluation is warranted for moderate recurring 
attacks, and a 40 percent evaluation is warranted for 
recurring attacks of severe intervertebral disc syndrome with 
intermittent relief.  A 60 percent evaluation requires 
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 disease disc, with little intermittent relief.  
38 C.F.R. 
§ 4.71a, Diagnostic Code 5293 (1999).

Diagnostic Code 5295 provides that a 10 percent evaluation is 
warranted for lumbosacral strain with characteristic pain on 
motion.  A 20 percent evaluation is warranted for lumbosacral 
strain with muscle spasm on extreme forward bending, loss of 
lateral spine motion, unilateral, in the standing position.  
A 40 percent rating may be assigned when there is severe 
lumbosacral strain with a listing of the whole spine to the 
opposite side, positive Goldthwait's sign, marked limitation 
of forward bending in a standing position, loss of lateral 
motion with osteoarthritic changes or narrowing with 
irregularity of joint space, or some of the above with 
abnormal mobility on forced motion.  38 C.F.R. § 4.71a, 
Diagnostic Code 5295 (1999).

III. Analysis

Currently, the veteran's service-connected degenerative disc 
disease of the lumbar spine at L5-S1, L4-L5, with spondylosis 
is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5292, 
and a 20 percent evaluation is assigned, consistent with 
evidence of moderate limitation of motion of the lumbar 
spine.  Under Diagnostic Code 5292, a maximum 40 percent 
evaluation is assignable for limited motion of the lumbar 
spine, if the limitation is "severe."  

Under Diagnostic Code 5293, a 40 percent evaluation is 
warranted for recurring attacks of severe intervertebral disc 
syndrome with intermittent relief and under Diagnostic Code 
5295, a 40 percent evaluation is warranted for severe 
lumbosacral strain with a listing of the whole spine to the 
opposite side, positive Goldthwait's sign, marked limitation 
of forward bending in a standing position, loss of lateral 
motion with osteoarthritic changes or narrowing with 
irregularity of joint space, or some of the above with 
abnormal mobility on forced motion. 

The evidence reveals that the veteran's in-service injury to 
the low back has resulted in a chronic symptomatology 
involving pain, weakness, and impaired range of motion.  A 
recent November 1998 VA examination shows that the veteran 
walked about the room without any difficulty.  Upon physical 
examination, the veteran had good forward flexion to 60 
degrees, backward extension to neutral, and right side and 
left side bending to 20 degrees.  The veteran's toe to heel 
walking was normal.  A neurological evaluation revealed 
physiologic and symmetrical reflexes, strength and sensation 
in both lower extremities.  Internal and external rotation of 
the hips were normal, pulses were normal, straight leg 
raising was negative bilaterally, and no atrophy was 
appreciated.  An X-ray report revealed no evidence of 
compression fracture at L-1 and no evidence of significant 
spondylolisthesis.  However, there were spondylolytic defects 
at L-4 and L-5 and the veteran had degenerative change at L5-
S1 more so than L4-5.  

The VA examiner noted that the veteran's spondylolysis and 
degenerative disc disease was not related to an in-service 
injury.  In the VA examiner's opinion, the veteran appeared 
to be moderately symptomatic and functioning well.  In 
addition, there was no evidence of significant additional 
functional loss likely to result from a flare-up of the 
veteran's lumbar spine symptoms and there was no evidence of 
acceleration of the disability beyond what one would normally 
anticipate for an individual of this age.  See 38 C.F.R. 
§§ 4.40, 4.45, 4.59.  These objective clinical findings do 
not approximate the criteria for a 40 percent evaluation 
under Diagnostic Code 5292 as discussed above.  

In accordance with Diagnostic Code 5293, a 40 percent 
evaluation is not warranted because there is no medical 
evidence of recurring attacks of severe intervertebral disc 
syndrome with intermittent relief.  In addition, under 
Diagnostic Code 5295, a higher rating of 40 percent does not 
apply because there is no medical evidence of severe 
lumbosacral strain with a listing of the whole spine to the 
opposite side, positive Goldthwait's sign, marked limitation 
of forward bending in a standing position, loss of lateral 
motion with osteoarthritic changes or narrowing with 
irregularity of joint space, or some of the above with 
abnormal mobility on forced motion.  38 C.F.R. § 4.71a, 
Diagnostic Code 5295 (1999).  

The evaluation of a musculoskeletal disability requires 
consideration of all of the functional limitations imposed by 
the disorder.  See Spurgeon v. Brown, 10 Vet. App. 194 
(1997).  With the exception of pain, the evidence shows that 
there are no other functional limitations resulting from 
degenerative disc disease of the lumbar spine at L5-S1 and 
L4-L5, with spondylosis.  The Board finds that the functional 
limitations imposed by degenerative disc disease of the 
lumbar spine at L5-S1 and L4-L5, with spondylosis are 
appropriately compensated by the 20 percent rating that has 
been assigned under Diagnostic Code 5292. 

The Board finds, therefore, that the evidence supports a 20 
percent disability rating for moderate limitation of motion 
of the lumbar spine, and that the preponderance of the 
evidence is against entitlement to a disability rating in 
excess of 20 percent for the disorder.

Moreover, application of the extraschedular provisions is 
also not warranted in this case.  38 C.F.R. § 3.321(b) 
(1999).  There is no objective evidence that this service- 
connected disability presents such an exceptional or unusual 
disability picture, with such factors as marked interference 
with employment or frequent periods of hospitalization, as to 
render impractical the application of the regular schedular 
standards.  Hence, referral by the RO to the Chief Benefits 
Director of VA's Compensation and Pension Service, under the 
above-cited regulation, was not required.  See Bagwell v. 
Brown, 9 Vet. App. 337 (1996).



ORDER

Entitlement to an evaluation greater than 20 percent for 
degenerative disc disease of the lumbar spine at L5-S1 and 
L4-L5, with spondylosis is denied.  


_____________________________________
A. BRYANT
Member, Board of Veterans' Appeals