Citation Nr: 0304193 Decision Date: 03/10/03 Archive Date: 03/18/03 DOCKET NO. 99-18 186A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to an increased rating for chronic low back pain with narrowing at L4-L5, rated as 10 percent disabling prior to September 13, 1999, and as 20 percent disabling from September 13, 1999. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran-Appellant INTRODUCTION The veteran (also referred to as "appellant" or "claimant") served on active duty from April 1982 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 1999 by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, that denied a rating in excess of 10 percent for the veteran's service-connected chronic low back pain with narrowing at L4-L5. The veteran entered notice of disagreement with this decision in June 1999; the RO issued a statement of the case in July 1999; and the veteran entered a substantive appeal, on a VA Form 9, which was received in July 1999. A RO hearing officer decision during the pendency of the appeal resulted in an increased rating of 20 percent, effective from September 13, 1999. FINDINGS OF FACT 1. All evidence necessary to decide the claim on appeal has been obtained; the RO has notified the veteran of the evidence needed to substantiate the increased rating claim addressed in this decision, obtained all relevant evidence designated by the veteran, and provided him VA medical examinations in order to assist him in substantiating his claim for VA compensation benefits. 2. For the period prior to April 8, 1999, the veteran's chronic low back pain with narrowing at L4-L5 manifested not more than slight limitation of motion of the lumbar spine, and not more than mild symptoms analogous to intervertebral disc syndrome. 3. For the period from April 8, 1999, with considerations of painful motion, the veteran's chronic low back pain with narrowing at L4-L5 manifested disability that more nearly approximated moderate limitation of motion of the lumbar spine, and recurring attacks analogous to not more than moderate intervertebral disc syndrome. 4. For the period from November 26, 1999, with considerations of painful motion, the veteran's chronic low back pain with narrowing at L4-L5 manifested disability that more nearly approximated severe limitation of motion of the lumbar spine, and recurring attacks with intermittent relief analogous to not more than severe intervertebral disc syndrome. CONCLUSIONS OF LAW 1. For the period prior to April 8, 1999, the criteria for a rating in excess of 10 percent for service-connected chronic low back pain with narrowing at L4-L5 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1-4.14, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5292 (2002). 2. For the period from April 8, 1999, the criteria for a 20 percent rating for service-connected chronic low back pain with narrowing at L4-L5 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1-4.14, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5292 (2002). 3. For the period from November 26, 1999, the criteria for a 40 percent rating for service-connected chronic low back pain with narrowing at L4-L5 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1-4.14, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5292 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000, Pub. L. No. 106- 475, 114 Stat. 2096 (2000), now requires VA to assist a claimant in developing all facts pertinent to a claim for VA benefits, including a medical opinion and notice to the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the VA Secretary, that is necessary to substantiate the claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has issued regulations to implement the Veterans Claims Assistance Act of 2000. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002). The Board finds that, in this appellant's case, the requirements of the Veterans Claims Assistance Act of 2000 and implementing regulations have been met. In the rating decision, statement of the case, and supplemental statement of the case, the RO advised the appellant of what must be demonstrated to establish an increased rating for chronic low back pain with narrowing at L4-L5. In a letter dated in December 2002, the Board advised the veteran of what must be demonstrated to establish an increased rating for chronic low back pain with narrowing at L4-L5, of the provisions of the Veterans Claims Assistance Act of 2000, and that he should identify medical records of treatment. In January 2003, the Board received from the veteran VA medical records. The Board finds that the RO has obtained, or made reasonable efforts to obtain, all records or other evidence which might be relevant to the appellant's claim, and the appellant has not identified any additional records or other evidence that has not been obtained. VA specifically requested VA treatment records and records of hospitalization for the relevant time periods. The veteran was afforded various VA compensation examinations in April 1999, November 1999, and March 2001, including magnetic resonance imaging (MRI) testing and a medical opinion as to the nature of the veteran's service-connected low back disability. VA specifically advised the veteran that it was requesting the VA examinations to assist in development of his claims. Thus, the veteran has been advised which portion of evidence is to be provided by him and which portion VA will attempt to obtain in accordance with 38 U.S.C.A. § 5103(a). II. Increased Rating for Low Back Disability Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the particular disability for which the veteran is service connected is not listed under a specific diagnostic code, it is rated by analogy to a closely related disability in which not only the functions affected but also the anatomical location and symptomatology are closely analogous. 38 C.F.R. § 4.20. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re-evaluation in accordance with changes in a veteran's condition. It is essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) 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. 38 C.F.R. § 4.45. Diagnostic Code 5292 provides that, where there is slight limitation of motion of the lumbar spine, a 10 percent rating will be assigned. Where there is moderate limitation of motion of the lumbar spine, a 20 percent rating will be assigned. For severe limitation of motion of the lumbar spine, a 40 percent rating, the maximum schedular rating, will be assigned. 38 C.F.R. § 4.71a. In February 1999, the veteran entered the currently appealed claim for increased rating for chronic low back pain with narrowing at L4-L5. The veteran's service-connected chronic low back pain with narrowing at L4-L5 has been rated under Diagnostic Code 5292 as 10 percent disabling prior to September 13, 1999, and as 20 percent disabling from September 13, 1999. During the pendency of the appeal, the RO granted a 20 percent rating for the veteran's service- connected chronic low back pain with narrowing at L4-L5, effective from September 13, 1999, the date VA outpatient treatment records reflect that the veteran presented for increased low back symptoms due to an injury. After a review of all the evidence of record, the Board finds that, for the period prior to April 8, 1999, the veteran's chronic low back pain with narrowing at L4-L5 manifested not more than slight limitation of motion of the lumbar spine, and not more than mild symptoms analogous to intervertebral disc syndrome. The evidence includes outpatient treatment records from the Minot Clinic dated in 1999 that reflect that in January 1999 the veteran presented for treatment for low back pain and morning stiffness. He reported that his back had improved with naproxen, while flexeril had not helped, and he still had morning stiffness. The diagnosis was chronic low back pain secondary to disc disease at L4-L5 with no radicular component. The difficulty walking was attributed by the examiner to the veteran's left knee disorder instead of the low back disability. Based on this evidence, the Board finds that, for the period prior to April 8, 1999, the criteria for a rating in excess of 10 percent for service-connected chronic low back pain with narrowing at L4-L5 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1-4.14, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5292. An April 1999 report of VA examination of the spine reflects the veteran's subjective report of constant low back pain that radiated upward, was aggravated by prolonged sitting and changes in the weather or bending, and occasional radiation of pain into the left buttocks. The veteran was taking Naproxen and Flexeril, which he reported helped some. Physical examination revealed muscular atrophy of the lumbosacral back, with no deformity or palpable tenderness, and negative straight leg raise bilaterally, and mild narrowing at the L4-L5 interspace. The point at which pain occurred during range of motion testing of the lumbosacral spine were recorded as follows: at 70 degrees in flexion (95 degrees indicated to be normal); 25 degrees in extension (35 degrees indicated to be normal); 25 degrees in both left and right lateral flexion (40 degrees indicated to be normal); and 25 degrees in both left and right rotation (35 degrees indicated to be normal). X-rays showed mild narrowing of the L4-L5 interspace. The diagnosis was low back pain. At the April 1999 VA examination, there was no evidence of excessive fatigability, incoordination, or significant further loss in range of motion after exercises. Treatment records from Minot Air Force Base dated in 1999 reflect that in July 1999 the veteran reported increased low back pain that interfered with his ability to work, and that flexeril and naproxen did not help. In August 1999 the veteran reported for treatment for his low back. He reported that his back had been doing some better until he had to move a washing machine, and he had not been able to work for two days. Examination revealed tenderness over the lumbar spine, diagnosed as chronic low back pain. The veteran reinjured his back on September 13, 1999 while installing a light fixture, when he caught his 80 pound daughter, who had fallen from a ladder. The veteran reported experiencing an exacerbation of low back pain and discomfort beginning at that time. One week later the exacerbation was noted to be resolving. Two weeks later, the veteran was still in some discomfort and was wearing a back brace. At a personal hearing at the RO in September 1999, the veteran testified that his low back disability required a lot of treatment, the Codeine did not remove all of the low back pain, he was a computer technician who sat in front of computers for eight hours per day, he had back pain in the morning that radiated if he twisted his back, he wore a back brace during waking hours, the pain was generally a "7" on a scale of 1 to 10, and heat helped his back. The Board finds that, for the period from April 8, 1999, with considerations of painful motion, the veteran's chronic low back pain with narrowing at L4-L5 manifested disability that more nearly approximated moderate limitation of motion, and recurring attacks analogous to not more than moderate intervertebral disc syndrome. The April 1999 VA examination report reflects a loss of 25 degrees in flexion, 10 degrees in extension, 15 degrees in lateral flexion bilaterally, and 10 degrees in rotation bilaterally; all measures were indicated by the examiner to include limitations of motion due to pain, with no additional limitations of motion due to pain. The evidence subsequent to April 1999 reflects that the veteran experienced low back injuries in July and September 1999, and present some evidence that the veteran's low back symptoms had improved and the symptoms were reduced with medication for the period prior to July 1999. On the other hand, the April 1999 VA examination indicates some tenderness and pain with motion of the low back. For these reasons, the Board finds that, for the period from April 8, 1999, the criteria for a 20 percent rating for service- connected chronic low back pain with narrowing at L4-L5 have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1-4.14, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5292. Even with consideration of factors indicated by 38 C.F.R. §§ 4.40, 4.45, and DeLuca, supra, however, especially painful motion, the Board finds that, for the period from April 8, 1999 to November 26, 1999, the evidence does not demonstrate disability that more nearly approximates severe limitation of motion of the lumbar spine to warrant a rating of 20 percent rating under Diagnostic Code 5292. 38 C.F.R. § 4.71a. Painful motion is considered limited motion only from the point that pain actually sets in or impedes motion, which in this case was clearly indicated by the VA examiner. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991); VAOPGCPREC 9-98. The painful motion the veteran experienced during this period, and the symptoms he has otherwise reported for this period - morning stiffness, pain with prolonged sitting, and tenderness - are well contemplated by the assigned 20 percent rating for the period from April 8, 1999. The Board further finds that, for the period from November 26, 1999, with considerations of painful motion, the veteran's chronic low back pain with narrowing at L4-L5 manifested disability that more nearly approximated severe limitation of motion of the lumbar spine, and recurring attacks with intermittent relief analogous to not more than severe intervertebral disc syndrome. A November 1999 VA examination recorded ranges of motion of the lumbar spine as follows: 30 degrees in flexion, 15 degrees in extension, 20 degrees in lateral flexion bilaterally, and 10 degrees in rotation bilaterally. The examiner noted that the veteran exhibited pain behavior in the form of audible sighing at the end range, but experienced no loss of coordination, excessive fatigability, significant further loss of motion, or increased pain following exercise. Straight leg raising was to 70 degrees bilaterally, with low back and buttock pain at the end of range. Mild tenderness was noted at the midline and the greater sciatic notch in the left gluteal region. Subsequent treatment entries include a September 2000 entry that reflects that the veteran has to use a back brace on a daily and permanent basis. In March 2001 the veteran was not found to have tenderness on palpation of the lumbar region of the spine. A March 2001 VA examination recorded (active) ranges of motion of the lumbar spine as follows: 10 degrees in flexion, 4 degrees in extension, 20 degrees in lateral flexion bilaterally, and 5 degrees in rotation bilaterally. The examiner noted that pain levels were reported to be increased following exercise. Subsequent outpatient treatment entries reflect continued complaints of chronic low back pain treated with medication. X-rays of the lumbar spine taken in January 2000 were indicated to have been normal. Based on this evidence, for the period from November 26, 1999, with considerations of painful motion, the Board finds that the veteran's chronic low back pain with narrowing at L4-L5 more nearly approximated severe limitation of motion of the lumbar spine, and recurring attacks with intermittent relief analogous to not more than severe intervertebral disc syndrome. For the period from November 26, 1999, the criteria for a 40 percent rating for service-connected chronic low back pain with narrowing at L4-L5 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1-4.14, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5292. A 40 percent rating is the maximum schedular rating for limitation of motion of the lumbosacral spine under Diagnostic Code 5292. The Board has considered rating the veteran's low back disability under all potentially applicable diagnostic codes to determine whether a more favorable rating is warranted. As the veteran's low back disability manifested exacerbations of low back pain, including complaints of shooting pain, and findings of disc space narrowing, the Board considered rating under Diagnostic Code 5293. 38 C.F.R. § 4.71a. The evidence does not demonstrate that the veteran's service-connected low back disability at any time before April 8, 1999 more nearly approximated the criteria for a 20 percent rating under Diagnostic Code 5293. For the period prior to April 8, 1999 the veteran's service-connected low back disability manifested not more than mild symptoms analogous to intervertebral disc syndrome. The clinical findings were of "mild narrowing" of the L4-L5 interspace, with no significant neurological symptoms. A July 1995 X-ray of the lumbosacral spine reflects "very early joint space narrowing at the L4-5 level with a slight scoliosis convex to the left lower lumbar spine." For the period from April 8, 1999, the veteran's chronic low back pain with mild narrowing at L4-L5 has not manifested more than moderate symptoms with recurring attacks analogous to intervertebral disc syndrome. The exacerbations of low back pain the veteran experienced in July and September 1999 were related to specific events that caused the pain, and have not been attributed the disc space narrowing. An October 1999 MRI reflects "mild" L3-L4 and L5-S1 disc bulge, moderate L4-L5 disc bulge, and mild canalicular stenosis on the right at L4-L5 secondary to the disc bulge. A November 1999 treatment entry qualifies the October 1999 MRI findings with the opinion that the veteran does not have a herniated nucleus pulposus of the lumbar spine nor a lumbar nor sacral nerve root condition, and the presence of disc bulging on MRI scan was indicated to be of no clinical significance. For the period from November 26, 1999, the veteran's low back disability has not manifested disability analogous to pronounced intervertebral disc syndrome, as contemplated by a 60 percent rating under Diagnostic Code 5293. The evidence does not demonstrate 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 diseased disc, or only little intermittent relief. 38 C.F.R. § 4.71a. For these reasons, the Board finds that, for the period prior to April 8, 1999, the criteria for a rating for the veteran's service-connected chronic low back pain with narrowing at L4- L5 in excess of 10 percent under Diagnostic Code 5292 have not been met; for the period from April 8, 1999, the criteria for a 20 percent rating under Diagnostic Code 5292 have been met; and for the period from November 26, 1999, the criteria for a 40 percent have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321(b), 4.1-4.14, 4.20, 4.40, 4.45, 4.71a, Diagnostic Code 5292. In exceptional cases where schedular ratings are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). "The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Id. In this case, there has been no showing that the veteran's service-connected chronic low back pain with narrowing at L4- L5 has independently caused marked interference with employment, necessitated frequent periods of hospitalization, or otherwise rendered impracticable the regular schedular standards for rating such orthopedic disability for any period during the pendency of the claim. The schedular rating criteria specifically contemplate the limitation of motion, including due to pain, and exacerbations of orthopedic disability, with some impairment on ability to work, as experienced by the veteran during such exacerbations. Under these circumstances, in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). ORDER An appeal for a rating for chronic low back pain with narrowing at L4-L5, in excess of 10 percent prior to April 8, 1999 is denied. A 20 percent rating for chronic low back pain with narrowing at L4-L5, for the period from April 8, 1999, is granted. A 40 percent rating for chronic low back pain with narrowing at L4-L5, for the period from November 26, 1999, is granted. JEFFREY D. PARKER Acting 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.