Citation Nr: 0317379 Decision Date: 07/24/03 Archive Date: 07/31/03 DOCKET NO. 99-13 864 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating in excess of 40 percent for chronic lumbosacral strain with radiculopathy. 2. Entitlement to an increased rating in excess of 30 percent for cervical nerve root impingement with radiculopathy and left sided numbness. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Osborne, Counsel INTRODUCTION The veteran had active military service from May 1982 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1999 rating decision by the RO, which granted an increased rating to 30 percent for cervical nerve root impingement with radiculopathy and which also granted an increased rating to 40 percent for chronic lumbosacral strain with radiculopathy. The veteran appeals for higher ratings. In March 2001, the Board remanded the claims to the RO for further development. FINDINGS OF FACT 1. The evidence does not establish that the veteran's service-connected back and cervical spine disorders results in pronounced disc syndrome with persistent symptoms compatible with sciatic neuropathy, demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of a diseased disc. 2. There is no evidence that the veteran's service-connected back and cervical spine disorder results in incapacitating episodes of intervertebral disc disease with a total duration of at least six weeks, or combined orthopedic or neurological symptoms warranting a higher evaluation. 3. With respect to the claims for increased ratings for a low back and for a cervical spine disorder, the veteran without good caused failed to report to scheduled VA examinations. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 40 percent for chronic lumbosacral strain with radiculopathy have not been met. 38 U.S.C.A. §§ 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293, 5295 (2001, 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2002). 2. The criteria for an increased rating in excess of 30 percent for cervical nerve root impingement with radiculopathy and left sided numbness have not been met. 38 U.S.C.A. §§ 1155 (West 1991); 38 C.F.R. §§ 4.71a, Diagnostic Codes 5290, and 5293 (2001 & 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8611 (2002). 3. The veteran's failure to report to VA examination without good cause requires denial of the claims for an increased rating for chronic lumbosacral strain with radiculopathy and for cervical nerve root impingement with radiculopathy and left sided numbness. 38 C.F.R. §§ 3.326, 3.327, 3.655 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act (VCAA) The Board observes that during the course of this appeal a new law was enacted. This new law and its implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well-grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5103A, 5107(a) (West Supp. 2001); 38 C.F.R. §§ 3.102, 3.159(c)-(d) (2002). The new law and regulations also include new notification provisions. Specifically, they require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary, that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103 (West Supp. 2001); 38 C.F.R. § 3.159(b) (2002). The record reflects that VA has made reasonable efforts to notify the veteran and his representative of the information and medical evidence necessary to substantiate his claim. The veteran and his representative were provided with a copy of the appealed May 1999 rating decision, a June 1999 statement of the case, and supplement statements of the case dated in June 1999 and December 2001. These documents provided notice of the law and governing regulations, as well as the reasons for the determinations made regarding his claims. By way of these documents, the veteran was also specifically informed of the cumulative evidence already having been previously provided to VA, or obtained by VA on his behalf. In April 2001, September 2002 and March 2003 VA letters, the veteran was informed of the provisions of the VCAA, the evidence he was responsible for submitting and what VA would do in an effort to substantiate his claims. See Quartuccio v. Prinicipi, 16 Vet. App. 183 (2002). By way of a June 2001 letter the veteran was informed that VA would assist him by scheduling him for an examination. Due to the revision of regulations relating to the rating of the veteran's low back disorder and cervical spine disorder, in March 2003, the Board sent him correspondence which stated, in part, as follows: We are writing to let you know that there has been a change in the law regarding your appeal...Since this change in law occurred while your appeal was pending, (the Board) must apply the version of the law that is more favorable to your claim. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). However, we must apply the old law prior to the effective date of the new law. See Green v. Brown, 10 Vet. App. 111, 116-119 (1997) and 38 U.S.C.A. § 5110(g) (West 1991) (where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the Act or administrative issue). The Board enclosed a copy of the pertinent segments of the amendment to Part 4, Schedule for Rating Disabilities effective September 23, 2002, See 67 Fed. Reg. 54345-54349 (August 22, 2002), as regards intervertebral disc syndrome, 38 C.F.R. § 4.71, Diagnostic Code 5293. The veteran was given an opportunity to submit additional evidence in response to the change in the regulation. To date, the veteran has not submitted any additional evidence in response to the March 2003 letter. The Board observes that throughout this appeal process, VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file consists of the veteran's service records, postservice medical records, including VA and private examinations, and assertions made by the veteran and his representative in support of his claims. Under the circumstances in this case, the veteran has received the notice and assistance contemplated by law, and adjudication of the claims for increased ratings poses no risk of prejudice to the veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Factual Background In February 1999, the veteran filed claims for increased ratings for the service-connected back and neck disorders. He claimed that his service-connected spine disorder caused numbness of the left side of the face, neck, arm, side and leg. He stated that his service-connected spine condition had deteriorated and that the numbness of the left side had increased. In connection with his claim for an increased ratings, VA outpatient treatment records from 1998 to 1999 were obtained and associated with the claims file. These records show that in July 1998, the veteran was diagnosed as having spinal stenosis, status post motor vehicle accident 1992, with left- sided weakness/numbness. In November 1998, the veteran was treated for complaints of left forearm and thumb pain. He also complained that his left arm felt numb. Cervical stenosis with radiculopathy was diagnosed. In February 1999, the veteran received follow-up treatment for his complaints of burning pain in the left forearm, numbness and hypersensitivity in the left facial area. The diagnosis was cervical disc disease. A March 1999 VA orthopedic examination report reveals that the veteran complained of having constant pain in the neck and back with numbness of the entire left side of his body. He reported that activity made his pain worse. Physical examination revealed that active range of motion of the lower extremities was within normal limits in all joints. Sensation was decreased to pinprick and light touch over the entire left lower extremity dermatomes progressing anteriorly over the abdomen and posterior thoracic area and the anterior and posterior chest and the left arm, left neck and left face. This decreased sensation to pinprick and light touch changed at the midline of the body to normal. Muscle strength was 5/5 in all joints of the lower extremities. Deep tendon reflexes were present and equal. Great toe dorsiflexion was within normal limits. Straight leg raising was negative bilaterally. There was mild pain on palpation of the lumbosacral spine. There was no evidence of any muscle spasm or fasciculation of the lumbosacral paraspinal muscle. Active range of motion of the upper extremities was within normal limits in all joints. Sensation was decreased over the left upper extremity, left neck and left face. Muscle strength was 5/5 in the joints of the upper extremities. Deep tendon reflexes were present and equal. There was no evidence of any muscle atrophy or fasciculation in the upper extremities. Active range of motion of the cervical spine was within normal limits in all planes. There was mild pain on palpation of the cervical spine. The spurling compression test was negative. Active range of motion of the lumbosacral spine was within normal limits in all planes. His gait was nonantalgic. He was noted to have hip hiking of the left hip with use of a straight cane. There were no other significant focal neuromuscular deficits. The examiner stated that clinically, the veteran had neck pain and low back pain with some inconsistencies between subjective and objective findings. In this regard, he noted the veteran's complaint of 1) decreased sensation over the entire left side of the body from head to toe, stopping at the midline of the body, that is, at the midline it changed from abnormal to normal and 2) hip hiking on ambulation with no evidence of any leg length discrepancy. The veteran underwent VA neurology examination in March 1999. During the examination, the veteran related that following his service discharge, he was involved in a motor vehicle accident. He reported that since that time he had had constant neck pain which radiated into the left arm. He reported that since the accident he also had numbness over the entire left side of his body including his face, arm, trunk and leg. He stated that his neck pain and arm pain were worsening. He reported that in 1988, he was in an motor vehicle accident in which he injured his back and that since that time he had low back pain. He reported that his left ankle felt like it had glass in it. He stated that he had back pain which increased with prolonged walking. He related having no feeling in his foot and reported that he wore a left ankle orthosis. Physical examination revealed that leg raising was negative bilaterally. Mild lumbosacral and posterior cervical tenderness was noted to palpation. He had full flexion in his neck, but was markedly limited in neck extension and bilateral rotation. Station was normal. He walked with an antalgic gait, limping on his left leg. Formal muscle testing revealed 5/5 strength, in both upper and lower extremities proximally and distally. Deep tendon reflexes were one and symmetrical in both upper and lower extremities. Plantar stimulation produced a flexor response. Pont position sense was intact bilaterally. Light touch and pinprick were subjectively decreased over the left face, arm, and leg in diffuse fashion. Cranial nerves II through XII were otherwise within normal limits. The examiner diagnosed chronic post-traumatic low back pain with reported radiologic history of degenerative joint disease. The examiner stated that consideration needs to be given with respect to the possibility of left lumbosacral radiculopathy in view of persistent left leg numbness. Also diagnosed was chronic post-traumatic cervical pain syndrome with reported radiologic evidence of cervical degenerative joint disease. The examiner stated that consideration to the possibility of a left cervical radiculopathy would be given in view of radiating pain and sensory loss. An April 1999 electromyogram (EMG) report was normal. There was no electro diagnostic evidence for radiculopathy or peripheral nerve injury at this time. The radiologist stated that central etiology or injury without electro diagnostically evidence damage cannot be excluded. In May 1999, the veteran stated that his cervical nerve root impingement with radiculopathy caused incomplete paralysis of his arm which was severe. He stated that his chronic lumbosacral strain with radiculopathy produces pain, muscle spasms with little or no intermittent relief. Additional outpatient treatment and diagnostic reports were received in June 1999. A May 1999 magnetic resonance imaging (MRI) of the cervical spine revealed an impression of mild disc bulges at C2-3 and C3-4. There was no evidence of spinal stenosis or nerve impingement/compression. A May 1999 report noted that the veteran had paraspinal muscle tightness/tenderness from the cervical to the lumbar area. The assessment was chronic low back pain with chronic headache with left sided numbness. Another medical entry in May 1999 reveals that the examiner was requested by the veteran to document paralysis of his arm as well as complications of his lumbar spine disease such as radiculopathy, absent ankle reflexes. It was explained to the veteran that most diagnostic studies (EMG and cervical MRI) were normal and that she could not document what he was asking. The examiner expressed concern for the lack of correlation between the veteran's subjective concerns versus objective findings. The veteran underwent EMG studies in June 1999. The assessment was that the veteran had an abnormal EMG. There was evidence of chronic changes noted in the left tibialis anterior, left gastrocnemius, left adductor magnum, and the lumbar-sacral paraspinals. The examiner stated that this could be related to the veteran's history of degenerative disc disease in the lumbar region. There did not appear to be any acute nerve impingement occurring. The nerve conduction velocity (NCV) portion of the exam was completely within normal limits and there was no evidence for a peripheral neuropathy. During a July 2001 VA orthopedic examination, the veteran stated that he had chronic neck and left upper extremity pain/paresthesia and chronic low back pain with left lower extremity pain/paresthesia. He reported having a constant dull aching discomfort in the posterior cervical region that radiated along the left upper trapezius and down the lateral aspect of the arm to the forearm along with numbness and tingling in a global distribution. He frequently described left upper extremity weakness and easy fatigability. He stated that he had difficulty lifting greater than five pounds and that he often had trouble lifting something as light as a full coffee cup. He denied muscle spasms in the neck or left upper extremity. He reported the neck pain was worse in the morning and worse with prolonged cervical forward flexion. He did not report any episodes of painful flare-ups. He reported that left upper extremity pain prevented him from working and he further stated that this was secondary to a combination of pain, weakness, and poor endurance. The only alleviating factor he identified was hot showers. He reported having a brief trial of cervical traction and nonsteroidal anti-inflammatory drugs without relief. Regarding his second complaint, he described severe constant low back pain, intermittent dull aching discomfort in the hip, and constant numbness in the left leg which, by his description, involved the lower extremity in a global distribution as well. He reported weakness of the left knee extensors and ankle dorsiflexors and reported that he was easily fatigued. He noted difficulty with proprioception due to the left ankle weakness and had recently been fitted with a left ankle/foot orthosis. He reported increased low back pain in the morning, increased pain with flexion activity, or standing or sitting for greater than 20 minutes. He did not identify any alleviating factors. He did not described anything that caused particular painful flare-ups. He reported that in the past he had upper extremity electromyogram/nerve conduction studies which he stated were normal. The examiner noted that a review of the claims file indicates that the veteran had plain radiographs of the cervical and lumbar spine which showed degenerative changes, particularly in the zygapophyseal joints. A computerized tomography scan of the lumbar spine was obtained in 1995 and showed no neural impingement. Physical examination revealed that the cervical spine had forward flexion to 40 degrees, extension to 30 degrees, lateral flexion to 30 degrees bilaterally, right rotation to 45 degrees and left to 50 degrees. Lumbar spine forward flexion to 75 degrees with pain reported at the lumbosacral junction and end range. Lateral bending and extension was to 30 degrees and was pain free. He had a normal cervical and lumbar lordosis. He had normal muscle bulk and tone of the upper and lower extremities. He had no atrophy of the paraspinals. On manual muscle testing he demonstrated normal strength of the deltoids, biceps, brachioradialis, internal/external shoulder rotators, triceps, wrist/finger extensors, and hand intrinsics. 5/5 strength was noted in the proximal and distal muscle groups of both lower extremities. He reported diminished appreciation to pinprick in a nondermatorme-specific pattern in the left upper extremity, but this involved dermatomes C5-T1; however, sensation in the hand was completely intact. Sensory testing of the left lower extremity revealed diminished appreciation in the L5 dermatorme of the leg, but not the foot, the S1 dermatome of the foot, the leg. He had negative dural tension signs. On gait assessment, he ambulated with a cane in the right hand. There was no significant change with walking without a cane. He was able to toe walk, but reported some difficulty in doing this. He could toe walk without any apparent difficulty. Cervical and lumbar paraspinals were supple and without focal trigger points. Further, no focal trigger points were appreciated in the sternocleidomastoid, levator scapulae, scalene, upper/middle trapizi, rhomboids, latissimus dorsi, or quadratus lumborum glutei. He had no fixed postural deformities. His muscle stretch reflexes were +2 and symmetric at the biceps, unobtainable brachioradialis and triceps, and +1 and symmetric at the knees and ankles. He had a negative Hoffman's test and no ankle clonus. The veteran underwent VA neurological examination in July 2001. He complained of back pain which radiated into the left lower extremity. He also complained of neck pain and numbness of the left arm. He further complained of numbness over the left side of his face, arm, and leg and inside the left side of his throat. Physical examination revealed that cranial nerves II-XII were within normal limits. He had some posterior cervical tenderness. He was numb to light touch and pinprick over the left side of his face and there was a decreased appreciation of light touch and pinprick over the entire left hemi-corpus, including the left arm and leg. He had 3/5 strength at the left quadriceps muscle. He had full strength in the right upper extremity and in both upper extremities. He had a markedly antalgic gait. He used a cane to walk, wearing a left ankle-boot orthosis. He had no voluntary left dorsiflexion. His deep tendon reflexes were absent in both the upper and lower extremities. The assessment was post- traumatic chronic low back pain syndrome with sciatica, left hemi-sensory loss, consider the possibility of cervical myelopathy. It was the examiner's opinion that the veteran demonstrated chronic low back pain with evidence of left lower extremity radiculopathy. There were no symptoms suggestive of a neuropathy. His left upper extremity numbness may be secondary to cervical radiculopathy. There were no specific signs suggesting a specific cervical or lumbosacral nerve root which was affected. III. Analysis VA's duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet.App. 190 (1991). Regulations provide that veterans have an obligation to report for VA examinations and reexaminations which are scheduled in connection with their claim, and if a veteran, without good cause, fails to report for such examination, an increased rating claim is to be denied. 38 C.F.R. §§ 3.326, 3.327, 3.655; Engelke v. Gober, 10 Vet.App. 396 (1997). In June 2001, the veteran was notified that he would be scheduled for VA examinations to determine the current severity of his service-connected back and neck disorders. He was notified that his examinations were scheduled for October 2002. He failed to report to the scheduled examinations. VA correspondences dated in September 2002 notified the veteran of the regulatory provision 38 C.F.R. § 3.655. Even after receiving notice of 38 C.F.R. § 3.655, the veteran has provided no good cause for his failure to report to VA orthopedic and neurological examinations. This alone serves as a basis to deny his claim. 38 C.F.R. § 3.655. The Board will, nonetheless, adjudicate the merits of his claims. A. Increased Rating for the Service-Connected Back Disorder Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Degenerative or traumatic 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. Slight limitation of motion of the lumbar spine warrants a 10 percent rating and moderate limitation of motion warrants a 20 percent rating. A 40 percent rating is assigned for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292. A noncompensable rating is assigned for lumbosacral strain with slight subjective symptoms only. A 10 percent is assigned for a lumbosacral strain with characteristic pain on motion. A 20 percent rating is assigned for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 40 percent rating is warranted for 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 space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295. A 40 percent rating is the maximum available under Diagnostic Code 5295. The rating schedule for evaluating intervertebral disc syndrome changed during the pendency of this appeal. The old criteria, in effect prior to September 23, 2002, provided that a maximum 60 percent rating for intervertebral disc syndrome, and such is given when the condition is pronounced in degree, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm and an absent ankle jerk or other neurological findings appropriate to the site of the diseased disc and little intermittent relief. A 40 percent rating is assigned for severe intervertebral disc syndrome, recurring attacks, with intermittent relief, a 20 percent when moderate with recurring attacks and a 10 percent when mild. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). Under the new criteria of Code 5293, intervertebral disc syndrome is evaluated (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 (combined ratings table) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. A maximum 60 percent rating is warranted when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes have a total duration of at least four weeks but less than six weeks during the past 12 months. A 20 percent rating is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months and a 10 percent rating is assigned with the incapacitating episodes have a total duration of at least one week but less than two weeks during the past 12 months. Note 1 provides that for the purposes of evaluations under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. Note 2 provides that when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurological disabilities separately using evaluation criteria for the most appropriate neurological diagnostic code or codes. 67 Fed. Reg. 54345 (2002). Here either the old or new rating criteria may apply, whichever are most favorable to the veteran, although the new rating criteria are only applicable since their effective date. Karnas v. Derwinski, 1 Vet.App. 308 (1990); VAOPGCPREC 3-2000. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See note at "diseases of the peripheral nerves" in 38 C.F.R. § 4.124a. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating complete paralysis. When there is complete paralysis the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The veteran has been assigned a 40 percent schedular rating for his low back disability. The veteran's current 40 percent schedular rating is the maximum rating permitted under the Codes 5292, 5295 (limitation of motion of the lumbar spine and lumbosacral strain). As such, the Board must assess whether any other diagnostic codes would afford the veteran a higher rating for his service-connected back disorder. In this regard, the Board observes that the veteran's lumbar spine disorder does not involve any fractures or ankylosis. Thus, higher ratings are not warranted under Diagnostic Codes 5285, 5286, and 5289. In the instant case, in order for the veteran to receive the next higher rating, he must meet the criteria of the old or new Diagnostic Code 5293. A review of the evidence under the old Diagnostic Code 5293 fails to show that the veteran has pronounced intervertebral disc syndrome. Medical reports from 1999 to 2001 show minimal objective findings associated with the service-connected lumbar spine disorder. In March 1999, the veteran's reflexes were present and equal, straight leg raisings were negative and he had no lumbar muscle spasms. An April 1999 EMG was normal. A May 1999 medical report reveals that the veteran requested that the examiner document paralysis of his arm and complications of his lumbar spine disease, such as radiculopathy and absent ankle reflexes. The examiner explained to the veteran that diagnostic studies were normal and that she could not document what he wanted. The examiner expressed concern for the lack of correlation between the veteran's subjective complaints versus the objective findings. Although a June 1999 EMG study was abnormal and the veteran was diagnosed in July 2001 as having chronic low back pain with evidence of left lower extremity radiculopathy, the record fails to demonstrate pronounced intervertebral disc syndrome. The next higher rating of 60 percent is assignable under the new version of Code 5293 based on "incapacitating episodes" of intervertebral disc syndrome having a duration of at least six weeks during the past twelve months. The claims file contains no evidence of the veteran having periods of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest which was prescribed by a physician and treatment by a physician. New Code 5293 also permits alternatively rating intervertebral disc syndrome based on separate evaluations under orthopedic and neurological codes. With respect to the orthopedic impairment, the record shows that the veteran has a most slight limitation of motion of the lumbar spine, warranting no more that a 10 percent rating under Diagnostic Code 5292. In March 1999, he had a full range of motion of the lumbar spine. When examined by VA in July 2001, his lumbar spine had forward flexion to 75 degrees with pain reported at the lumbosacral junction and end range. Lateral bending and extension was to 30 degrees and was pain free. The Board observes that the evidence fails to show that pain on use of the joint results in limitation of motion to a degree which would support a higher rating. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Additionally, the veteran's orthopedic manifestations are at most analogous to lumbosacral strain with characteristic pain on motion. As such no more than a 10 percent rating is assignable under Diagnostic Code 5295. The next higher rating of 20 percent for lumbosacral strain is not warranted as there is no evidence of muscle spasm, he has close to a full range of motion of the lumbosacral spine and there is no listing of the whole spine to the opposite side. See 38 C.F.R. § 4.71, Diagnostic Code 5295. In terms of the neurological manifestations, the veteran has on one occasion been diagnosed as having post-traumatic chronic low back pain with sciatica, left hemi-sensory loss. This diagnosis was based on the veteran's history of having low back pain with numbness, weakness and pain in the left lower extremity. The most appropriate neurologic code to evaluate the veteran under is Diagnostic Code 8520, for impairment of the sciatic nerve. In June 1999, the veteran had an abnormal EMG. In this respect, there was evidence of chronic changes noted in the left tibialis anterior, left gastrocnemius, left adductor magnum, and lumbosacral paraspinals. The radiologist stated that this could be related to the veteran's history of degenerative disc disease in the lumbar region. It was also reported that there did not appear to be any acute nerve impingement and that the NCV portion of the examination was within normal limits with no evidence of peripheral neuropathy. The Board observes that the medical evidence shows no more than moderate incomplete paralysis of the sciatic nerve and as such a 20 percent rating is assignable under Code 8520. With reference to the new version of Code 5293, if orthopedic manifestations of the veteran's low back condition are rated 10 percent (based on slight limitation of motion and lumbosacral strain with characteristic pain on motion), and the neurological manifestations of the low back condition are rated 20 percent (based on moderate incomplete paralysis of the sciatic nerve), the result under the combined ratings table of 38 C.F.R. § 4.25 is a combined rating of 30 percent. So, even by this method a rating higher than the current 40 percent rating for the low back disability is not warranted. As the preponderance of the evidence is against the claim for an increased rating for the low back disability, the benefit- of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b). B. Increased Rating for the Service-Connected Neck Disorder The veteran is currently assigned a 30 percent rating under Diagnostic Codes 5290-8611. Under Code 5290, a 10 percent rating is assigned for slight limitation of motion of the cervical spine, a 20 percent when moderate and a 30 percent when severe. 38 C.F.R. § 4.71, Diagnostic Code 5290. As the veteran is receiving the maximum rating under this code, the Board must determine whether rating the veteran under another pertinent code will result in a higher rating for his service-connected cervical spine disorder. In this regard, the Board turns to the appropriateness of rating the veteran's service-connected cervical spine disorder under Diagnostic Code 5285. In this regard, the veteran does not claim and the record does not show that he ever fractured a vertebra or that his service connected cervical spine disorder includes such a disability. Moreover, the evidence fails to show any ankylosis of the cervical spine. Thus, higher ratings under Diagnostic Codes 5286, 5287 are not warranted. As the veteran's cervical spine disorder includes disc impairment, an evaluation of his claim under Diagnostic Code 5293, intervertebral disc syndrome, is appropriate. As mentioned in the previous section, this code has been revised effective in September 2002. The Board will adjudicate the veteran's cervical spine disorder under both the old and revised intervertebral disc syndrome criteria. In this regard, a review of the record fails to demonstrate that the veteran meets the criteria for the next higher rating of 40 percent under the old criteria. In this regard, the evidence fails to show severe cervical spine intervertebral disc syndrome with recurring attacks with intermittent relief. Although the evidence shows that the veteran has mild disc bulges at C2-3, C3-4, objective neurological impairment associated with such disease process is minimal. A May 1999 MRI reported noted that there was no evidence of spinal stenosis or nerve impingement/compression. When examined in July 2001, the veteran had diminished pinprick sensation over the left hemi-corpus and deep tendon reflexes were absent in both upper extremities. The examiner stated that the veteran's left upper extremity numbness may be secondary to cervical radiculopathy. However, none of the records from 1999 to 2001 demonstrate any recurrent severe intervertebral attacks with intermittent relief. Thus, the next higher rating of 40 percent under the old Diagnostic Code 5293 is not warranted. Likewise, the evidence fails to demonstrate that the next higher rating of 40 percent is warranted under the new rating criteria of Diagnostic Code 5293. The evidence is completely negative for any incapacitating episodes of intervertebral disc syndrome. Second, when rating intervertebral disc syndrome based on separate evaluations under orthopedic and neurological codes, a rating in excess of 30 percent would not be indicated. With respect to orthopedic impairment, the evidence shows that on a March 1999 neurological VA examination, the veteran's cervical spine had full flexion but was markedly limited in extension and bilateral rotation. However, when undergoing VA orthopedic examination approximately one week latter, he had a full range of motion of the cervical spine in all planes. VA examination in July 2001 revealed no more than slight limitation of motion of the cervical spine as it was reported that he had forward flexion to 40 degrees, extension to 30 degrees, bilateral flexion to 30 degrees, right rotation to 45 degrees and left rotation to 50 degrees. The Board finds that the record evidence tends to show that the veteran's cervical spine disorder primarily results in no more than slight limitation of motion of the cervical spine. Besides the one report in March 1999, there are no other reports which show that the veteran has more than slight limitation of motion of the cervical spine or that he has flare-ups or pain which causes more than slight limitation of motion. See Deluca, supra. If the veteran had reported for his scheduled VA orthopedic and neurological examinations in October 2002, it could have been established as to whether he actually had additional limitation of motion of the cervical spine due to pain. Since the veteran is only shown to have slight limitation of motion of the cervical spine no more than a 10 percent rating is assignable under Diagnostic Code 5292. With respect to neurological impairment, Diagnostic Code 8611, neuritis, is for application. This code pertains to the middle radicular group and provides a 20 percent rating for mild incomplete paralysis of either the major or minor extremity. A 40 percent rating is assigned for moderate incomplete paralysis of the major extremity and a 30 percent rating for the minor extremity. Severe incomplete paralysis warrants a 50 percent rating for the major extremity and a 40 percent for the minor extremity. Complete paralysis of middle radicular group: adductioni, abduction and rotation of arm, flexion of elbow, and extension of wrist loss or severely affected warrants a 70 percent rating for the major extremity and a 60 percent rating for the minor extremity. The veteran's service medical records show that the veteran is right-handed. The record demonstrates that the veteran complains of pain and numbness of the left upper extremity (i.e., his minor extremity) and such complaints are suggested to be related to the veteran's service-connected cervical spine disorder. Medical reports from 1999 to 2001 show that the veteran has normal strength of the left upper extremity. Diagnostic testing reveals no nerve impingement/compression. Although the veteran complains of numbness, weakness and radiating pain in the left upper extremity, there is no objective evidence of record of any paralysis (complete or incomplete) involving the left upper extremity. In fact, the veteran has reported that his EMG and NCV studies were all normal. In July 2001, the examiner stated that the veteran's complaint of upper extremity numbness maybe secondary to cervical radiculopathy; however, he noted that there were no signs suggesting that a specific cervical nerve root was affected. Given the foregoing, under Code 8611, a noncompensable rating is assigned, as the veteran fails to meet the criteria for a compensable rating. See 38 C.F.R. § 4.31. With reference to the new version of Code 5293, if orthopedic manifestations of the veteran's cervical spine are rated 10 percent (based on slight limitation of motion), and the neurological manifestations of the cervical spine are rated 0 percent (based on a finding of that there is no incomplete paralysis involving the middle radicular group), the result under the combined ratings table of 38 C.F.R. § 4.25 is a combined rating of 10 percent. So, even by this method a rating higher than the current 30 percent rating for the cervical spine disability is not warranted. As the preponderance of the evidence is against the claim for an increased rating for the cervical spine disability, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b). ORDER An increased rating in excess of 40 percent for chronic lumbosacral strain with radiculopathy is denied. An increased rating in excess of 30 percent for cervical nerve root impingement with radiculopathy and left sided numbness is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, 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.