Citation Nr: 0303374 Decision Date: 02/26/03 Archive Date: 03/05/03 DOCKET NO. 00-01 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an evaluation in excess of 20 percent for residuals of a lumbosacral injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. A. Carsten, Associate Counsel INTRODUCTION The veteran had active military service from January 1976 to January 1979. This matter comes before the Board of Veterans' Appeals (Board) from an April 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied an evaluation in excess of 10 percent for residuals of a lumbosacral injury. The veteran subsequently perfected this appeal. In August 2000, the evaluation was increased to 20 percent effective back to the date of the original claim for increase. A hearing before the undersigned was held in June 2001. In August 2001, the Board remanded this case for additional development. The case has since returned to the Board. FINDINGS OF FACT 1. VA has satisfied its duty to notify and has obtained all evidence necessary for an equitable disposition of the veteran's appeal. 2. VA neurologic and orthopedic examinations in July 2002 variously reported range of motion as follows: forward flexion to 5 and 20 degrees; backward extension to 5 and 20 degrees; and lateral bending to 10 degrees bilaterally and to 20 degrees on the right and 30 degrees on the left. Resolving reasonable doubt in the veteran's favor, these findings approximate severe limitation of motion of the lumbar spine. 3. Clinical examination in July 2002 indicated no neurologic findings with respect to sensory changes or strength deficits in the lower extremity muscle groups and magnetic resonance imaging (MRI) in September 2002 revealed no definite disc herniation or cord compression. 4. The veteran has not submitted objective evidence that his disability requires frequent hospitalization or causes marked interference with employment beyond that contemplated in the schedular standards. CONCLUSION OF LAW The criteria for a 40 percent evaluation, and no more, for the residuals of a lumbosacral injury are met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5292, 5295 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION As an initial matter, the Board notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West Supp. 2002); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002). This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. First, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103 (West Supp. 2002); 38 C.F.R. § 3.159(b) (2002); see Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). The April 1999 rating decision, the November 1999 statement of the case (SOC) and the January 2003 supplemental statement of the case (SSOC) collectively informed the veteran of the laws and regulations pertaining to an increased evaluation for the residuals of a lumbosacral injury. A December 2001 letter to the veteran told him of the type of evidence and information he needed to submit in order to successfully prosecute a claim. The August 2001 Board remand notified the veteran of the enactment of the VCAA. The January 2003 SSOC set forth the regulations relating to VA's duty to notify and to assist; spelled out what evidence the veteran was required to submit and what evidence would be gathered by VA; and advised the veteran that upon receipt of the required information and/or authorization, VA would make reasonable attempts to obtain identified VA or private records. Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West Supp. 2002); 38 C.F.R. § 3.159(c) (2002). VA requested that the veteran provide an authorization for Dr. Davis. The veteran responded that Dr. Davis no longer practices and is currently doing missionary work overseas. Consequently, these records have not been requested. At the same time, the veteran submitted private records from the Medical College of Ohio (MCO) and these have been associated with the claims folder. The veteran has not identified additional records that need to be obtained. In keeping with the duty to assist, the veteran was provided VA examinations in March 1999, October 1999, and July 2002. Accordingly, the Board finds that VA has satisfied its duty to notify and to assist and that under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Background Records from Medical College of Ohio indicate that the veteran underwent a MRI of the lumbosacral spine in November 1993. Impression was minimal central disc bulge at the L5-S1 level without evidence of thecal sac compression. The exiting nerve roots at this level were unremarkable and the remaining levels were also unremarkable without evidence of disc bulge, herniation, or nerve root compression. The veteran underwent trials of Daypro and Naprosyn and also received epidural steroid injections. Records indicate continued treatment through April 1994. At that time, the veteran was not on any medication and assessment was chronic back pain. The physician indicated that roofing was not appropriate for the veteran. The veteran underwent a VA examination in March 1999. He reported that he was working as a roofer and for the last few years had experienced lower back pain. On physical examination, he was able to ambulate fairly well, heel-toe ambulation was normal, and he was able to squat partly. Range of motion was as follows: forward flexion from 0 to 80 degrees; backward extension from 0 to 20 degrees; lateral flexion from 0 to 30 degrees; and rotation from 0 to 25 degrees. There was some evidence of pain on motion. X-rays were suggestive of spondylolysis of L5. Diagnosis was residual low back strain. The veteran underwent another VA examination in October 1999. He reported increasing pain, soreness, tenderness and stiffness in the back with left leg pain every once in a while. He is no longer able to do his roofing jobs. Physical examination revealed lumbosacral tenderness and soreness and pain with motion. Flexion was to 65 degrees without pain and then down to 75 degrees with pain. He could bend and rotate 30 degrees with pain at the extremes. He could raise onto his toes and heels and squat. Straight leg raising was negative. X-rays revealed spondylolisthesis of L5 over S1 of the first degree. Diagnosis was residual injury to lumbosacral spine with spondylolisthesis. The veteran testified at the June 2001 hearing that the farthest he can walk is approximately 1/8 of a mile, he has difficulty coming down steps and getting out of vehicles, and is unable to tie his own shoes. He used to be a roofer but has not worked since 1997. He has looked for work but is very limited in what he can do because of his back and leg problems. The veteran also reported that he is having various neurological symptoms such as spasms, radiculopathy, right leg numbness and bowel problems. A VA neurologist evaluated the veteran on July 24, 2002. The veteran reported a radiating and throbbing pain that comes underneath the genital region, down the medial aspect of the thigh and usually stops below the knee. Occasionally it radiates to the foot and explodes. At that point he loses strength of his leg and control of his bowels. He also reports muscle spasm in the calf and leg on the right side after a particularly severe pain episode. He has not taken medication for the past 2 years because he does not have a doctor. Flare-ups are daily and rated 10/10 in severity. The veteran reports significant functional loss due to his pain and right leg weakness, such as an inability to work. The veteran uses a cane. Physical examination revealed range of motion as follows: forward flexion and backward extension to 5 degrees; and lateral bending to 10 degrees bilaterally. The veteran reported that he was unable to toe or heel walk because the generation of pain into the right buttock and back of the leg. He grabbed his thigh and said he was having a strong pulsing pain but there was no detectable muscle spasm in either the back or the leg. He was able to do 3 seconds of toe standing on both feet when encouraged. Muscle strength was +5/5 in all muscle groups in both lower extremities. Straight leg raising in the seated position caused pain on the right when the hip was flexed at 20 degrees actively. In the supine position the veteran was able to perform 45 degrees of active movement before pain was noted in the back. On the left side pain was generated at 45 degrees elevation. Passive movement of both legs to 75 degrees was accomplished but beyond this level strong resistance was met due to pain. There was no decrease or increase in muscle tone in either thigh or leg and no muscle atrophy in either lower extremity. There were no sensory deficits detected to pin prick or light touch in any dermatomal distribution either on the right or left. The veteran's gait was slow and he maintained a rigid back. Impression was low back pain radiating down the right leg that is historically consistent with an L5 radiculopathy. There were no neurologic findings with respect to sensory changes, or strength deficits in the lower extremity muscle groups. The limitation of the spinal column was considered severe; however, the examiner noted that when the veteran was putting his shoes and socks on there appeared to be greater flexibility in the thoracic and lumbar columns than during testing. The veteran also underwent a VA orthopedic examination on July 24, 2002. The claims folder was reviewed. The veteran is currently unemployed and any stair climbing, bending or twisting exacerbates his pain and he reports that he becomes severely debilitated during flareups. Subjectively, the veteran feels he cannot care for himself in terms of the activities of daily living. On physical examination, range of motion was as follows: forward flexion and extension to 20 degrees; and lateral bending to 20 degrees on the right and 30 degrees to the left. The veteran would not cooperate with further range of motion testing secondary to pain. The veteran was able to stand on his toes but was unable to toe walk or walk on his heels. Examination of the lower extremities revealed strength of 5/5 with the exception of some 4/5 strength in his quadriceps, hamstrings and dorsiflexors of the right lower extremity. Straight leg raising revealed that at 45 degrees the veteran developed pain in his lower back with radiation just to the level of the knee but not distally. Cross straight leg raise revealed that at 45 degrees he experienced the same pain in the posterior aspect of his right leg. Sensory examination revealed no deficits in sensation in his right or left lower extremities to light touch. Proprioception was intact in both lower extremities. Back musculature appeared normal without fixed postural abnormality. X-rays of the lumbar spine revealed spondylolysis of L5 but no evidence for spondylolisthesis. Impression was lower back pain that may be indicative of a right L5 radiculopathy, but clinical examination was essentially unremarkable in that there were no strength or sensory deficits. The veteran underwent a MRI of the lumbar and thoracic spine in September 2002. Impression was "severe narrowing of the thecal sac in the lumbar region from the level of L4 distally due to increased epidural fat. No definite disk herniation, bone marrow abnormalities, or cord compression is seen." Analysis The veteran was originally granted service connection for residuals of a lumbosacral injury in November 1979 and granted a 10 percent evaluation effective January 1979. In August 2000, the evaluation was increased to 20 percent effective February 9, 1999. The veteran contends that his back problems have worsened considerably since 1999 and that the current 20 percent evaluation does not adequately reflect the severity of his low back disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155 (West 1991). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2002); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2002). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, 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, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). In accordance with the rating schedule, VA evaluated the veteran's residuals of a lumbosacral injury pursuant to Diagnostic Codes 5295-5292. Under Diagnostic Code 5295, lumbosacral strain with characteristic pain on motion warrants a 10 percent evaluation; lumbosacral strain with muscle spasms on extreme forward bending, loss of lateral spine motion, unilateral, in the standing position warrants a 20 percent evaluation; and severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in the standing position, loss of lateral motion with osteo- arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002). Under Diagnostic Code 5292, limitation of motion of the lumbar spine is evaluated as slight (10 percent), moderate (20 percent) or severe (40 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). The words "slight," "moderate" and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6 (2002). VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of a functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The United States Court of Appeals for Veterans Claims (Court) has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." See 38 C.F.R. § 4.40 (2002). The medical evidence reveals a rather significant change in the veteran's range of motion of the lumbar spine since the 1999 VA examinations. Subjectively, the veteran complains of substantial pain in his low back and right leg. VA neurological examination in July 2002 indicated that the veteran's limitation of motion could be considered severe, although it was noted that his motion appeared better when he was not being tested. Orthopedic examination revealed that flexion and extension were limited to 20 degrees and lateral bending to the right and left was also limited. Resolving all reasonable doubt in the veteran's favor, the Board finds that the veteran's disability picture more nearly approximates that of a severe limitation in lumbar motion and a 40 percent evaluation under Diagnostic Code 5292 is warranted. On review of the medical evidence of record, the Board finds that an evaluation in excess of 40 percent is not warranted. Diagnostic Codes 5285 (vertebral fracture), 5286 (complete ankylosis of the spine), and 5289 (ankylosis of the lumbar spine) all provide for evaluations in excess of 40 percent. See 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286 and 5289 (2002). There is no medical evidence of a vertebral fracture or ankylosis and therefore, these diagnostic codes are not for application. The Board acknowledges that Diagnostic Code 5293 also provides for an evaluation in excess of 40 percent. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); 67 Fed. Reg. 54345-54349 (Aug. 22, 2002) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5293). At the June 2001 hearing the veteran reported various neurological complaints such as radiculopathy and also that he had MRI findings of a bulging disc. Consequently, the August 2001 Board remand requested additional examination to determine, in essence, whether the veteran had degenerative disc disease or any neurological findings related to his service-connected lumbosacral injury. The veteran underwent extensive VA neurological and orthopedic examinations. Subjectively, the veteran complained of significant neurological problems. Objectively, however, there were no neurologic findings with respect to strength or sensory changes. The examiners did not diagnose intervertebral disc syndrome or degenerative disc disease. Rather, they both indicated that the veteran had a lower back pain historically consistent or indicative of right L5 radiculopathy. The most recent MRI examination in September 2002 did not reveal any evidence of disc herniation or cord compression. The medical evidence of record does not establish current neurological findings related to the veteran's lumbosacral injury. As such, the Board does not find the application of Diagnostic Code 5293 to be appropriate. In determining that an evaluation in excess of 40 percent is not warranted, the Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.59 as interpreted in Deluca, supra. There is no basis for a rating in excess of 40 percent based on limitation of motion due to any functional loss as this decision awards the veteran the maximum schedular rating for limitation of motion of the lumbar spine. See Johnston v. Brown, 10 Vet. App. 80 (1997). Further, objective findings in July 2002 did not indicate significant functional loss, loss in strength, or muscle atrophy. Finally, to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2002). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In this case, the evidence of record does not indicate the veteran is frequently hospitalized for the residuals of his lumbosacral injury. The veteran claims that his disability affects his ability to work and the record contains medical evidence that roofing is not appropriate for the veteran. However, the veteran has not submitted objective evidence indicating that his disability causes a marked interference with all employment beyond that contemplated in the schedular standards. Having reviewed the record with these mandates in mind, the Board finds no basis for further action. VAOPGCPREC 6-96 (1996). ORDER A 40 percent evaluation, and no more, for residuals of a lumbosacral injury is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ THOMAS J. DANNAHER 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.