Citation Nr: 0203046 Decision Date: 04/04/02 Archive Date: 04/11/02 DOCKET NO. 01-02 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an increased evaluation for residuals of lumbosacral strain, mechanical low back pain, degenerative disc disease, and bulging disc with radiculopathy, currently rated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Associate Counsel INTRODUCTION The veteran served on active duty from November 1987 to November 1991. This case comes to the Board of Veterans' Appeals (Board) from a rating decision rendered in September 2000 by the New Orleans, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. All the evidence requisite for an equitable disposition of the veteran's claim has been developed and obtained, and all due process concerns as to the development of his claim have been addressed. 2. Residuals of lumbosacral strain, mechanical low back pain, degenerative disc disease, and bulging disc with radiculopathy are manifested by severe lumbosacral strain with recurring attacks and little intermittent relief, loss of lateral motion with osteo-arithritic changes, narrowing or irregularity of a joint space, and severe limitation of motion of the spine. CONCLUSION OF LAW The schedular criteria for a rating higher than 40 percent for residuals of lumbosacral strain, mechanical low back pain, degenerative disc disease, and bulging with radiculopathy are not met. 38 U.S.C.A. § 1155 (West 1991 & Supp. 2001); 38 C.F.R. Part 4 § 4.71a, Diagnostic Codes 5292, 5293, 5295 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION In December 1992, the veteran was granted service connection for lumbosacral strain, mechanical low back pain, and a 10 percent rating was assigned under Diagnostic Code 5295, effective from November 1992. In a May 1998 rating decision, the RO increased the veteran's disability evaluation to a 40 percent rating, but recharacterized the veteran's disability as lumbosacral strain; mechanical low back pain; degenerative disc disease; bulging disc with radiculopathy and assigned the disability evaluation under Diagnostic Codes 5295-5293. The veteran contends that his service-connected back disability is more severe than currently evaluated, and that an increased rating should again be assigned. After a review of the evidence, the Board finds that the evidence does not support the veteran's contentions. The severity of a service-connected disability is ascertained, for VA rating purposes, by the application of rating criteria set forth in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2000) (Schedule). I. Entitlement to Increased Evaluation for Limitation of Motion, Lumbosacral Strain, and Invertebral Disc Syndrome The veteran's service-connected back disability is currently evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5295- 5293. Lumbosacral strain is assigned a disability rating in the Schedule under Diagnostic Code 5295. Severe lumbosacral strain is given a 40 percent rating. See 38 C.F.R. Part 4 § 4.71a, Diagnostic Code 5295 (2001). The veteran has already received the maximum disability rating allowed in the Schedule under Diagnostic Code 5295. The veteran can still be assigned an increased evaluation up to a 60 percent rating under Diagnostic Code 5293 for intervertebral disc syndrome. To receive a 60 percent rating under Diagnostic Code 5293, the veteran's intervertebral disc syndrome must be pronounced with persistent symptoms compatible with sciatic neuropathy including characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of the diseased disc as well as proving that the veteran has only intermittent relief. A 40 percent rating is awarded when the intervertebral disc syndrome is severe with recurring attacks and only intermittent relief. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2001). In order to evaluate the severity of a particular disability, it is essential to consider its history. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (2001). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, only the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation under 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 (1994). In the August 2000 VA Compensation and Pension Examination, the examiner stated that the veteran's x-ray showed spondylolysis and a questionable L5 presence. The veteran's MRI report showed a diffuse bulge of the L4-5 disc. The examiner could not state whether the veteran's spinal function was additionally limited by pain, fatigue, or weakness. The examination report noted the veteran's range of motion was flexion-35 degrees, extension-15 degrees, left lateral flexion-15 degrees, and right lateral flexion-10 degrees. The examination report stated that the spine was painful upon motion at the upper extremity of movement. At the most recent VA Compensation and Pension Examination, in May 2001, the physician stated in the neurological disorder examination report that the veteran suffered from nerve entrapment that was causing radiculopathy bilaterally, which resulted in the veteran experiencing numbness and weakness. During the examination, the examiner reported that the veteran had difficulty in walking on his toes bilaterally and experienced some proximal muscle weakness. The examination report also noted that the veteran had no muscle atrophy but decreased sensory touch and pinprick in the L5 distribution on his left side. During the same May 2001 examination, the veteran was examined by another physician to evaluate spinal disorders. The spine examination report notes that the veteran's range of motion is flexion-45 degrees, extension-25 degrees, and lateral- 25 degrees. The VA physician noted in the examination report that the veteran was able to walk on both his heels and toes as well as squat halfway down to the floor for five seconds. The physician also stated that the veteran was able to walk without a brace and had no significant muscle weakness. The examiner diagnosed the veteran with lumbosacral strain and stated that he suffered from soft tissue strain but exhibited no significant paraspinal muscle spasm in the lumbosacral area. The examiner noted in the May 2001 examination report that it was not likely that the veteran's disc bulging or radiculopathy is causing his low back pain. Upon an examination of the evidence, the VA examination reports do not show pronounced intervertebral disc syndrome with little intermittent relief. Rather, the findings reported more nearly approximate severe intervertebral disc syndrome, recurring attacks with intermittent relief. For example, although there was some nerve entrapment that is causing radiculopathy bilaterally, there was no muscle atrophy or demonstrable muscle spasm. Although the veteran has demonstrated characteristic pain, weakness, and numbness in his lower extremities, neither absent ankle jerk or other neurological findings appropriate to the site of the diseased disc have been demonstrated. Consequently, the Board concludes that the evidence does not support a higher disability evaluation under Diagnostic Code 5293. The Board notes that VAOPGCPREC 36-97 (December 12, 1997) held, in part, that Diagnostic Code 5293, intervertebral disc syndrome, involves loss of range of motion because the nerve defects and resulting pain associated with injury to the sciatic nerve may cause limitation of motion of the cervical, thoracic, or lumbar vertebrae. Therefore, pursuant to Johnson v. Brown, 9 Vet. App. 7 (1996), 38 C.F.R. §§ 4.40 and 4.45 must be considered when a disability is evaluated under this diagnostic code. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). The rating criteria for limitation of motion of the spine are contained in Diagnostic Code 5292. A 40 percent rating is given for severe limitation of motion, 20 percent for moderate limitation, and 10 percent slight limitation. 38 C.F.R. § 4.71a, Diagnostic Code 5252 (2001). However, both Diagnostic Code 5292, for limitation of motion of the lumbar segment of the spine, and Diagnostic Code 5295, for lumbosacral strain, include limitation of motion as a rating criteria. It would not be appropriate to assign a separate rating under either of these diagnostic codes for limitation of motion. See 38 C.F.R. § 4.14; cf. Esteban v. Brown, 6 Vet App 259 (1994) (veteran entitled to combine separate 10 percent ratings when none of the symptomatology is duplicative or overlapping, but rather is distinct and separate: disfigurement, painful scars, and muscle damage resulting in functional limitation). Other diagnostic codes for the spine, which might provide for a higher disability rating, are not applicable. See 38 C.F.R. § 4.71a, Diagnostic Codes 5285 through 5295. It is not contended or shown that the veteran's service-connected disability includes ankylosis or fracture of the spine. Section 4.40 provides in part that functional loss may be due to pain, supported by adequate pathology, and evidenced by the visible behavior of the claimant undertaking the motion. The section also provides that weakness is as important as limitation of motion, and a part, which becomes painful on use, must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. Factors listed for consideration in 38 C.F.R. § 4.45 include less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination, impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. In this case, the evidence does not support a disability evaluation higher than 40 percent based on limitation of function due to pain, under DeLuca. Based on the medical evidence, the Board concludes that a rating in excess of 40 percent for lumbosacral strain, mechanical low back pain, degenerative disc disease, and bulging with radiculopathy is not warranted. The veteran's spinal disability was manifested primarily by complaints of pain and stiffness in the lumbosacral area as well as radiating pain and numbness in his lower extremities. Lumbar spine range of motion test results were recorded in the May 2001 VA examination report. These showed only moderate limitation of range of motion in the lumbar spine. The Board concludes that lumbosacral strain, mechanical low back pain, degenerative disc disease, and bulging disc with radiculopathy warrant no more than the 40 percent rating assigned. There was no objective indication of weakness, incoordination or excess fatigability on use, even with consideration of 38 C.F.R. §§4.40, 4.45 and 4.59. The veteran's reports of numbness, stiffness, and pain do not meet or more nearly approximate the criteria for a 60 percent rating under Diagnostic Code 5293. 38 C.F.R. § 4.7 (2001). II. Duty to Assist A change in the law on November 9, 2000, redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify the claimant of the information and evidence necessary to substantiate a claim for VA benefits. See Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100 et. seq. (West Supp.). Implementing regulations for VCAA have been published. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). Except for amendments not applicable, the provisions of the regulations merely implement the VCAA and do not provide any rights other than those provided by the VCAA. 66 Fed. Reg. 45,629 (Aug. 29, 2001). The Board has conducted a complete and thorough review of the veteran's claims folder. The Board finds that the RO advised the veteran of the evidence necessary to support his claim for a higher disability evaluation. The veteran has not indicated the existence of any pertinent evidence that has not already been requested, obtained, or attempted to be obtained. The RO made all reasonable efforts to obtain relevant records adequately identified by the veteran. All evidence identified by the veteran relative to this claim has been obtained and associated with the claims folder. The veteran has also been given several VA examinations. The Board finds that VA's duty to assist the claimant under applicable provisions has been satisfied. ORDER A higher disability evaluation for residuals of lumbosacral strain, mechanical low back pain, degenerative disc disease, and bulging with radiculopathy is denied. MARY GALLAGHER Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.