Citation Nr: 0632948
Decision Date: 10/24/06 Archive Date: 10/31/06
DOCKET NO. 02-03 419A ) 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
lumbosacral strain with degenerative disc disease.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
C. Moore, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1971 to
December 1975, and from October 1985 to September 1996.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a February 2000 rating decision of the
Cleveland, Ohio Regional Office (RO) of the Department of
Veterans Affairs (VA) that, in pertinent part, denied the
veteran's claim for an increased rating for his service-
connected low back disability, then evaluated as 10 percent
disabling. Based on the receipt of additional evidence,
including the reports of Department of Veterans Affairs (VA)
examinations in June 2004, the RO, by rating action dated in
November 2004, assigned a 20 percent evaluation for
lumbosacral strain, effective August 1999. By rating action
in February 2006, the disability was recharacterized to
recognize additional service connection for degenerative disc
disease of the lumbar spine. The 20 percent evaluation was
continued.
FINDING OF FACT
Throughout the rating period on appeal, the veteran's low
back disability has been manifested by complaints of pain,
productive of limitation of motion, and complaints of lower
extremity paresthesia and radiculopathy, with no objective
finding of neurological deficit.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 20 percent for
lumbosacral strain with degenerative disc disease have not
been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a,
Diagnostic Codes 5292, 5295; (as in effect prior to September
26, 2003); 38 C.F.R. § 4,71a, Diagnostic Code 5293 (as in
effect prior to September 23, 2002); 38 C.F.R. § 4.71a,
Diagnostic Code 5293 (as in effect from September 23, 2002
through September 25, 2003); 38 C.F.R. § 4.71a, Diagnostic
Codes 5237, 5242, 5243 (as in effect from September 26,
2003); 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8521, 8524,
8525, and 8526 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
VCAA
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002); 38 C.F.R. § 3.159(b) (2005); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must
inform the claimant of any information and evidence not of
record (1) that is necessary to substantiate the claim; (2)
that VA will seek to provide; (3) that the claimant is
expected to provide; and (4) must ask the claimant to provide
any evidence in her or his possession that pertains to the
claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA
notice should be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see
also Mayfield v. Nicholson, No. 05-7157 (Fed. Cir. April 5,
2006).
On March 3, 2006, the United States Court of Appeals for
Veterans Claims (Court) issued its decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006). The Court in Dingess/Hartman holds that the
VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) apply to all five elements of a "service
connection" claim. As previously defined by the courts,
those five elements include: (1) veteran status; (2)
existence of a disability; (3) a connection between the
veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability. Upon
receipt of an application for "service connection,"
therefore, the Department of Veterans Affairs (VA) is
required to review the information and the evidence presented
with the claim and to provide the claimant with notice of
what information and evidence not previously provided, if
any, will assist in substantiating or is necessary to
substantiate the elements of the claim as reasonably
contemplated by the application. This includes notice that
a disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Because the Court's decision is premised on the five elements
of a service connection claim, it is the consensus opinion
within the VA that the analysis employed can be analogously
applied to any matter that involves any one of the five
elements of a "service connection" claim, to include an
increased rating claim.
In the present case, VA satisfied its duty to notify by means
of April 2001 and May 2004 letters from the agency of
original jurisdiction (AOJ) to the appellant. The letters
informed the appellant of what evidence was required to
substantiate the claim and of his and VA's respective duties
for obtaining evidence, as well as requested that the veteran
submit additional evidence pertaining to his claim.
The above notice did not set forth the relevant diagnostic
code (DC) for the disability at issue. However, this is
found to be harmless error. Indeed, the February 2002
statement of the case, and November 2004 supplemental
statement of the case, included such information, and
included a description of the rating formula for all possible
schedular ratings under relevant diagnostic codes. As such,
the failure to include such notice in the VCAA letters did
not prejudice the veteran here.
The April 2001 and May 2004 letters also failed to discuss
the law pertaining to effective dates. However, because the
instant decision denies the veteran's claim for an increased
rating, no effective date will be assigned. As such, the
absence of notice as to effective dates does not prejudice
the veteran here.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S.
Court of Appeals for Veterans Claims held, in part, that a
VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits. In the present case, the unfavorable AOJ decision
that is the basis of this appeal was decided prior to the
issuance of appropriate VCAA notice.
Here, the Board finds that any defect with respect to the
timing of the VCAA notice requirement was harmless error.
Although the notice was provided to the appellant after the
initial adjudication, the case was readjudicated thereafter,
and the appellant has not been prejudiced thereby. The
content of the notice provided to the appellant fully
complied with the requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b) regarding VA's duty to notify. Not only
has the appellant been provided with every opportunity to
submit evidence and argument in support of his claim and to
respond to VA notices, but the actions taken by VA have
essentially cured the error in the timing of notice.
Further, the Board finds that the purpose behind the notice
requirement has been satisfied because the appellant has been
afforded a meaningful opportunity to participate effectively
in the processing of his claim. For these reasons, it is not
prejudicial to the appellant for the Board to proceed to
finally decide this appeal.
With regard to the duty to assist, the claims file contains
the veteran's service medical records and VA treatment
records and examination reports. Additionally, the claims
file contains the veteran's statements in support of his
claim. The Board has carefully reviewed such statements and
concludes that he has not identified further evidence not
already of record. The Board has also perused the medical
records for references to additional treatment reports not of
record, but has found nothing to suggest that there is any
outstanding evidence with respect to the veteran's claim.
Thus, based on the foregoing, the Board finds that all
relevant facts have been properly and sufficiently developed
in this appeal and no further development is required to
comply with the duty to assist the veteran in developing the
facts pertinent to his claim. Essentially, all available
evidence that could substantiate the claim has been obtained.
Legal Criteria
A. Increased Evaluation Regulations-Generally
The Board has reviewed all of the evidence in the veteran's
claims file, with an emphasis on the medical evidence for the
rating period on appeal. Although the Board has an
obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, the
extensive evidence of record. Indeed, the Federal Circuit
has held that the Board must review the entire record, but
does not have to discuss each piece of evidence. Gonzales
v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore,
the Board will summarize the relevant evidence where
appropriate, and the Board's analysis below will focus
specifically on what the evidence shows, or fails to show, as
to each claim.
Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings that
is based on average impairment of earning capacity. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2005).
Separate diagnostic codes identify the various disabilities.
VA has a duty to acknowledge and consider all regulations
that are potentially applicable through the assertions and
issues raised in the record, and to explain the reasons and
bases for its conclusion. Schafrath v. Derwinski, 1 Vet.
App. 589 (1991).
The standard of review for cases before the Board is as
follows: when there is an approximate balance of evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2005).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
stated that "a (claimant) need only demonstrate that there is
an 'approximate balance of positive and negative evidence' in
order to prevail."
Where there is a question as to which of two evaluations
should be applied, the higher evaluation 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 (2005).
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.
See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although
the regulations do not give past medical reports precedence
over current findings, the Board is to consider the veteran's
medical history in determining the applicability of a higher
rating for the entire period in which the appeal has been
pending. Id; Powell v. West, 13 Vet. App. 31, 35 (1999).
The rating schedule may not be employed as a vehicle for
compensating a claimant twice or more for the same
symptomatology; such a result would overcompensate him or her
for the actual impairment of earning capacity. See 38 C.F.R.
§ 4.14 (2003); Esteban v. Brown, 6 Vet. App 259 (1994).
When evaluating disabilities of the musculoskeletal system,
38 C.F.R. § 4.40 allows for consideration of functional loss
due to pain and weakness causing additional disability beyond
that reflected on range of motion measurements. Furthermore,
consideration should also be given to weakened movement,
excess fatigability, and incoordination. 38 C.F.R. § 4.45
(2005). See DeLuca v. Brown, 8 Vet. App. 202 (1995).
The rating for an orthopedic disorder should reflect
functional limitation which is due to pain which is supported
by adequate pathology and evidenced by the visible behavior
of the claimant undertaking the motion. Weakness is also as
important as limitation of motion, and a part that 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. See 38 C.F.R. § 4.40 (2005).
The factors of disability reside in reductions of their
normal excursion of movement in different planes.
Instability of station, disturbance of locomotion, and
interference with sitting, standing, and weight bearing are
related considerations. See 38 C.F.R. § 4.45 (2005).
With any form of arthritis, it is the intention of the rating
schedule to recognize actually painful, unstable, or
malaligned joints, due to healed injury, as entitled to at
least the minimal compensable rating for the joint. See 38
C.F.R. § 4.59 (2005).
It is observed that the schedular criteria for disabilities
of the spine have undergone revisions twice during the
pendency of this appeal. The first amendment, affecting
Diagnostic code 5293 (intervertebral disc syndrome), was
effective September 23, 2002. The next amendment affected
general diseases of the spine and became effective September
26, 2003.
As a general matter, when the law or regulations change
during the pendency of an appeal, the version more favorable
to the claimant applies, absent congressional intent to the
contrary. As the veteran filed the original claim on which
this appeal is based on August 17, 1999, his claim must be
evaluated under both the former and the revised criteria.
However, where the amended regulations expressly provide for
an effective date, and do not allow for retroactive
application, the veteran is not entitled to consideration of
the amended regulations prior to the established effective
date. See generally 38 U.S.C.A. § 5110(g) (West 2002).
B. The Old Spine Regulations
The provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5295 (as
in effect prior to September 26, 2003), relating to
lumbosacral strain, provides that a 40 percent disability
rating is properly assigned where the symptoms are severe,
with listing of whole spine to opposite side, positive
Goldwaithe's sign, marked limitation of forward bending in
standing position, loss of lateral motion with osteoarthritic
changes, or narrowing or irregularity of joint space, or some
of the above with abnormal mobility on forced motion. This
is the maximum schedular evaluation assignable under that
diagnostic code.
The provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5292 (as
in effect prior to September 26, 2003), relating to
limitation of motion of the lumbar spine, provides a 40
percent rating for severe limitation of motion of the lumbar
spine. This is the maximum schedular evaluation assignable
under that diagnostic code.
The provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5289 (as
in effect prior to September 26, 2003), relating to ankylosis
of the lumbar spine, provides a 40 percent rating for
favorable ankylosis of the lumbar spine. A 50 percent rating
is provided for unfavorable ankylosis of the lumbar spine.
The provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5293 (as
in effect prior to September 23, 2002), relating to
intervertebral disc syndrome, provides a 40 percent
evaluation when it is severe, being manifested by recurring
attacks with intermittent relief. Intervertebral disc
syndrome is rated 60 percent disabling when pronounced with
persistent symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent
ankle jerk or other neurological findings appropriate to the
site of the diseased disc with little intermittent relief.
C. The Revised Spine Regulations
Under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code
5293, which became effective September 23, 2002,
intervertebral disc syndrome (preoperatively or
postoperatively) is evaluated either on the total duration of
incapacitating episodes over the past 12 months or by
combining, under 38 C.F.R. § 4.25, separate evaluations of
its chronic orthopedic and neurologic manifestations along
with evaluations for all other disabilities, whichever method
results in the higher evaluation.
With incapacitating episodes having a total duration of at
least six weeks during the past 12 months, a 60 percent
rating is provided. With incapacitating episodes having a
total duration of at least four weeks but less than six weeks
during the past 12 months, a 40 percent rating is for
assignment. With incapacitating episodes having duration of
at least 2 weeks but less than 4 weeks during the past twelve
months, a 20 percent rating is provided.
Note (1): For purposes of evaluations under 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 neurologic
manifestations" means orthopedic and neurologic signs and
symptoms resulting from intervertebral disc syndrome that are
present constantly, or nearly so.
Note (2): When evaluating on the basis of chronic
manifestations, evaluate orthopedic disabilities using
evaluation criteria for the most appropriate orthopedic
diagnostic code or codes. Evaluate neurologic disabilities
separately using evaluation criteria for the most appropriate
neurologic diagnostic code or codes.
Note (3): If intervertebral disc syndrome is present in more
than one spinal segment, provided that the effects in each
spinal segment are clearly distinct, evaluate each segment on
the basis of chronic orthopedic and neurologic manifestations
or incapacitating episodes, whichever method results in a
higher evaluation for that segment.
See Amendment to Part 4, Schedule for Rating Disabilities,
Effective September 23, 2002; See 67 Fed. Reg. 54345-54349
(Aug. 22, 2002).
The Board is generally required to review both the pre- and
post-September 23, 2002, rating criteria to determine the
proper evaluation for the veteran's disability due to
intervertebral disc disease. The effective date rule
established by 38 U.S.C.A. § 5110(g), however, prohibits the
application of any liberalizing rule to a claim prior to the
effective date of such law or regulation.
Under the new schedule for rating spine disabilities
effective from September 26, 2003 (codified at 38 C.F.R.
§§ 4.71a, Diagnostic Codes 5243), intervertebral disc
syndrome is to be rated either under the General Rating
Formula for Diseases and Injuries of the Spine, or based on
incapacitating episodes. The criteria for rating
intervertebral disc syndrome based on incapacitating episodes
remained substantively unchanged from the rating criteria
effective September 23, 2002.
Under the new schedule for rating spine disabilities
effective from September 26, 2003 (codified at 38 C.F.R.
§§ 4.71a, Diagnostic Codes 5235 - 5242), relative to
lumbosacral strain ( Diagnostic Code 5237), spinal stenosis
(Diagnostic Code 5238), and degenerative arthritis of the
spine (Diagnostic Code 5242) (see also Diagnostic Code 5003),
a 10 percent rating is assigned where there is forward
flexion of the thoracolumbar spine greater than 60 degrees
but not greater than 85 degrees; or combined range of motion
of the thoracolumbar spine greater than 120 degrees but not
greater than 235 degrees; or muscle spasm, guarding, or
localized tenderness, not resulting in abnormal gait or
abnormal spinal contour; or vertebral body fracture with loss
of 50 percent or more of the height.
A 20 percent rating is assigned for forward flexion of the
thoracolumbar spine greater than 30 degrees but not greater
than 60 degrees; or the combined range of motion of the
thoracolumbar spine not greater than 120 degrees; or muscle
spasm or guarding severe enough to result in an abnormal gait
or abnormal spinal contour such as scoliosis, reversed
lordosis, or abnormal kyphosis.
A 40 percent rating is assigned for forward flexion of the
thoracolumbar spine 30 degrees or less; or favorable
ankylosis of the entire thoracolumbar spine.
A 50 percent rating is assigned for unfavorable ankylosis of
the entire thoracolumbar spine.
A 100 percent rating is assigned for unfavorable ankylosis of
the entire spine.
Note (2) under the amended schedule, indicates that for VA
compensation purposes, normal forward flexion of the
thoracolumbar spine is zero to 90 degrees, extension is zero
to 30 degrees, left and right lateral flexion are zero to 30
degrees, and left and right lateral rotation are zero to 30
degrees. The combined range of motion refers to the sum of
the range of forward flexion, extension, left and right
lateral flexion, and left and right rotation.
Note (5) under the amended schedule, in pertinent part,
indicates that for VA compensation purposes, unfavorable
ankylosis is a condition in which the entire thoracolumbar
spine or the entire spine is fixed in flexion or extension,
and the ankylosis results in one or more of the following:
difficulty walking because of a limited line of vision;
breathing limited to diaphragmatic respiration;
gastrointestinal symptoms due to pressure of the costal
margin on the abdomen; dyspnea or dysphagia; atlantoaxial
subluxation or dislocation; or neurologic symptoms due to
nerve root stretching. Fixation of a spinal segment in a
neutral position (zero degrees) always represents favorable
ankylosis.
Legal Analysis
At the outset, the Board notes that the veteran filed his
claim for an increased evaluation for his service-connected
low back disability, on August 17, 1999. Therefore, the
rating period for consideration on appeal begins August 17,
1998, one year prior to the date of receipt of the claim.
38 C.F.R. § 3.400(o)(2).
I. Criteria as in effect prior to September 23, 2003
The Board will first consider whether the schedular criteria
in effect prior to September 23, 2002 serve as a basis for an
increased rating here. In this regard, it is noted that the
veteran was initially rated pursuant to 38 C.F.R. § 4.71a,
under Diagnostic Code 5295, for lumbosacral strain.
The Board finds the veteran's symptomology during this period
does not warrant an evaluation greater than 20 percent under
this Diagnostic Code. In this regard, on VA examination in
September 1999, the veteran complained of experiencing back
pain. The examiner reported that the veteran could forward
flex to 90 degrees, with pain from 80 to 90 degrees of
flexion, and he could bend and rotate to 30 degrees with pain
at extremes of motion. He could ambulate without aid or
assistance, he had normal station and gait, and he could toe
heel walk and squat. He also had some tenderness and
soreness across his back. The Board finds that such
evidence, which does not show marked limitation of motion,
positive Goldthwaite's sign, loss of lateral motion with
osteo-arthritic changes, or abnormal mobility on forced
motion, demonstrates a disability picture that more nearly
approximates the currently assigned 20 percent evaluation.
Therefore, the Board finds that an evaluation in excess of 20
percent is not warranted under Diagnostic Code 5295.
The Board has also contemplated other applicable Diagnostic
Codes. In this regard,
Diagnostic Code 5292 for limitation of motion of the lumbar
spine is applicable. Under that Diagnostic Code 5292, a 20
percent rating is warranted where there is moderate
limitation of motion of the lumbar spine and a 40 percent
rating is warranted where there is severe limitation of
motion of the lumbar spine. As noted above, VA examination
in September 1999, found that the veteran would forward flex
to 90 degrees, with pain from 80 to 90 degrees of flexion,
and he could bend and rotate to 30 degrees with pain at
extremes of motion. Such findings reflect essentially normal
ranges of motion. Therefore, the Board concludes that a
higher evaluation is not warranted under Diagnostic Code
5292.
Additionally, on VA examination in September 1999, the
veteran reported that during monthly flare-ups, he suffered
additional functional loss due to pain, stiffness, lack of
endurance, and fatigability. However, even with
consideration under the criteria set forth in 38 C.F.R.
§§ 4.40 and 4.45 and DeLuca v Brown, 8 Vet. App. 202 (1995),
the Board finds that there has been no demonstration, by
competent clinical evidence, of additional functional
impairment comparable to severe limitation of motion so as to
warrant the next higher evaluation
The Board also finds that an evaluation in excess of 20
percent is not warranted under Diagnostic Code 5293, as it
existed prior to September 23, 2002. Under this code, a 20
percent evaluation is warranted for intervertebral disc
syndrome that is productive of moderate impairment with,
recurring attacks. A 40 percent evaluation is warranted for
severe intervertebral disc syndrome that is manifested by
recurring attacks, with intermittent relief. However,
evidence of record does not demonstrate that the veteran
experienced severe intervertebral disc syndrome. It is
acknowledged that in September 1999, October 2000, December
2000, and April 2002, examiners reported that the veteran
experienced decreased sensation, tingling of his feet, and
right leg radiculopathy. However, the Board does not find
that such neurological symptomology nearly approximates that
which is necessary for a 40 percent evaluation under
Diagnostic Code 5293 and thus a higher evaluation is not
warranted under this diagnostic code for the period in
question.
The Board has also considered whether any other Diagnostic
Code may afford the veteran an increased rating during the
period in question. However, as the medical evidence does
not establish ankylosis, Diagnostic Codes 5286 and 5289 are
not for application. There are no other relevant Diagnostic
Codes for consideration.
Therefore, based on the foregoing, the Board concludes that
the veteran is not entitled to an evaluation in excess of 20
percent under the schedular criteria for disabilities of the
spine as in effect prior to September 23, 2002.
II. Criteria as in effect from September 26, 2003
The Board finds that, under the revised regulations effective
from September 26, 2003, a higher evaluation is also not
warranted for the veteran's service-connected back
disability. Under these relevant provisions, disability of
the spine warrants a 20 percent evaluation where there is
forward flexion of the thoracolumbar spine greater than 30
degrees, but not greater than 60 degrees, or the combined
range of motion of the thoracolumbar spine is not greater
than 120 degrees, or there is muscle spasm or guarding severe
enough to result in an abnormal gait or abnormal spinal
contour such as scoliosis, reversed lordosis or abnormal
kyphosis. A 40 percent evaluation is warranted for forward
flexion of the thoracolumbar spine 30 degrees or less, or
favorable ankylosis of the entire thoracolumbar spine.
Unfavorable ankylosis of the entire thoracolumbar spine
warrants a 50 percent rating. Diagnostic Code 5237 for
lumbosacral strain; Diagnostic Code 5238 for spinal stenosis;
and Diagnostic Code 5243 for intervertebral disc syndrome.
During the period in question, the record reflects that in
June 2004, the veteran's thoracolumbar range of motion was
tested on two occasions. On one testing, the veteran had
extension to 25 degrees, flexion to 90 degrees, bilateral
lateral flexion to 40 degrees, and bilateral rotation to 75
degrees. On a second testing, the veteran had flexion of 50
degrees, extension of 20 degrees, bilateral bending of 20
degrees, and bilateral rotation of 20 degrees.
The veteran's thoracolumbar range of motion was also tested
on two occasions in September 2005. On one testing, the
veteran could forward flex to 90 degrees and could
bilaterally extend, bend, and rotate to 30 degrees. On a
second testing the veteran had forward flexion of 85 to 95
degrees, extension of 15 to 25 degrees, and bilateral lateral
flexion of 25 degrees.
As such, the Board finds that the veteran's current
symptomology, particularly the reported forward flexion
findings of between 50 degrees and 95 degrees and the lack of
evidence of favorable ankylosis of the entire throacolumbar
spine, corresponds to the currently assigned 20 percent
evaluation (i.e.--forward flexion of the thoracolumbar spine
greater than 30 degrees, but not greater than 60 degrees, or
the combined range of motion of the thoracolumbar spine is
not greater than 120 degrees) and does not more nearly
approximate the criteria for a 40 percent evaluation (i.e.--
forward flexion of the thoracolumbar spine 30 degrees or les,
or favorable ankylosis of the entire thoracolumbar spine).
Therefore, the Board concludes that the veteran is not
entitled to an evaluation in excess of 20 percent for his
service-connected low back disability under Diagnostic Code
5237 (lumbosacral strain), or 5243 (intervertebral disc
syndrome), from September 26, 2003.
The Board notes that the medical evidence of record does
establish that the veteran suffers functional loss due to
pain on repetitive use. However, even with consideration
under the criteria set forth in 38 C.F.R. §§ 4.40 and 4.45
and DeLuca v Brown, 8 Vet. App. 202 (1995), the Board finds
that there has been no demonstration, by competent clinical
evidence, of additional functional impairment comparable to
forward flexion of the thoracolumbar spine 30 degrees or less
or favorable ankylosis of the entire thoracolumbar spine, so
as to warrant the next higher evaluation.
Diagnostic Code 5243 pertaining to intervertebral disc
syndrome is also available for application in this case.
Under this code, a 20 percent evaluation is warranted where
there are incapacitating episodes having a duration of at
least 2 weeks but less than 4 weeks during the past twelve
months. A 40 percent rating is for assignment where there
are incapacitating episodes having a total duration of at
least four weeks but less than six weeks during the past 12
months. However, the evidence of record does not demonstrate
that the veteran has had incapacitating episodes having a
total duration of at least 6 weeks during the past 12 months.
In this regard, although the evidence of record demonstrates
that the veteran experiences episodic back pain, muscle
tension, and muscle spasms, there is no evidence that any
such episodes have been incapacitating and have required bed
rest. Indeed, on VA examination in September 2005, the
examiner reported that the veteran had not experienced any
incapacitating episodes during the past year. As such, a
higher evaluation is not warranted under Diagnostic Code 5243
when evaluated based on incapacitating episodes.
II. Criteria in effect from September 23, 2002 through
September 25, 2003
As noted above, the revised criteria effective September 23,
2002 through September 25, 2003 also provide that, in
addition to evaluating disc disease based on incapacitating
episodes, disc disease may also be evaluated by combining,
under 38 C.F.R. § 4.25, separate evaluations of its chronic
orthopedic and neurologic manifestations, with evaluations
for all service-connected disabilities, and assigning
whichever method results in the higher evaluation.
In terms of chronic orthopedic manifestations, as noted
above, the veteran's service-connected low back disability
warrants a 10 percent evaluation. In terms of the veteran's
neurological manifestations of his service-connected low back
disability, the veteran, on VA examination in June 2004,
complained of experiencing numbness, tingling, and
paresthesia that went into his legs. However, on
neurological examination, the examiner reported that straight
leg raising testing was negative at 80 degrees bilaterally,
Romberg's testing was negative, DTR's were 2+ in the lower
extremities, he had 5/5 motor sensory in all distal muscle
groups of the lower extremities, and he was sensorily intact
distally in the lower extremities to 2 point discrimination,
vibration, and position. The examiner reported that the
veteran's neurological examination was normal and that there
was no evidence of neuropathy. Similarly, on neurological
examination in September 2005, the examiner reported that the
veteran's Romberg's testing was negative, his DTR's were 2+
in the lower extremities; with downward going toes, motor 5/5
in all distal muscle groups; there was no evidence of muscle
atrophy; he was sensorily intact distally in the all lower
extremities to 2-point discrimination, vibration, and
position.
The potentially relevant Diagnostic Code sections are 8520,
for the sciatic nerve, Diagnostic Code 8526, for the anterior
crural nerve (femoral) and Diagnostic Code 8529, for the
external cutaneous nerve of the thigh. In view of the
foregoing, the Board finds that the medical evidence detailed
above does not allow for a finding of neurological
manifestations of the veteran's service-connected lumbosacral
strain, with degenerative disc disease, to a compensable
degree. As such, separate orthopedic manifestation and
neurologic manifestation ratings are not warranted.
Thus, the revised version of Diagnostic Code 5293, as in
effect from September 23, 2002 to September 25, 2003, does
not entitle the veteran to an increased combined service-
connected disability evaluation.
Hence, in view of the foregoing, the Board finds that the
preponderance of the evidence is against the veteran's claim
for an increased rating for his service-connected lumbosacral
strain with degenerative disc disease.
Extraschedular Consideration
The Board is required to address the issue of entitlement to
an extraschedular rating under 38 C.F.R. § 3.321 only in
cases where the issue is expressly raised by the claimant or
the record before the Board contains evidence of
"exceptional or unusual" circumstances indicating that the
rating schedule may be inadequate to compensate for the
average impairment of earning capacity due to the disability.
See VA O.G.C. Prec. Op. 6-96 (August 16, 1996). In this
case, the record before the Board does not contain evidence
of "exceptional or unusual" circumstances that would
preclude the use of the regular rating schedule.
ORDER
Entitlement to an evaluation in excess of 20 percent for
lumbosacral strain with degenerative disc disease is denied.
____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs