Citation Nr: 18142962 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-34 759 DATE: October 17, 2018 ORDER Entitlement to a 20 percent rating for a lumbosacral strain prior to September 28, 2016 is granted subject to the laws and regulations governing the award of monetary benefits. REFERRED ISSUE The record appears to raise the issue of entitlement to service connection for lower extremity radiculopathy to include secondary to a lumbosacral strain. This issue, however, is not currently developed or certified for appellate review. Accordingly, this matter is referred to the RO for appropriate consideration. REMANDED Entitlement to an increased rating for a lumbosacral strain since September 28, 2016 is remanded. FINDING OF FACT The medical evidence of record shows that prior to September 28, 2016 the Veteran’s lumbosacral strain was manifested, in pertinent part, by scoliosis but not by forward flexion of the thoracolumbar spine to 30 degrees or less; or by favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for a 20 rating, but no greater, for a lumbosacral strain prior to September 28, 2016 were met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1963 to December 1963, and from February 1964 to December 1978. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran filed a claim for an increased rating in December 2010. The Veteran contends that he is entitled to a rating in excess of 10 percent for a lumbosacral strain because this disorder impacts his ability to perform daily activities. A lumbosacral strain is rated under the General Rating Formula for Diseases and Injuries of the Spine. That formula provides for a 10 percent rating when 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. 38 C.F.R. § 4.71a. A 20 percent rating is warranted 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. Finally, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. The normal range of motion for the thoracolumbar spine is flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and rotation from 0 to 30 degrees. The combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Plate V. Medical treatment records from December 2008 through the present show ongoing complaints of low back pain. In a January 2011 medical treatment record the examiner noted severe degenerative changes, but no evidence of slight progression since the previous study. At a January 2011 VA examination, the Veteran reported sharp back pain, stiffness, weakness, fatigability, and “locking up.” The Veteran stated that he walked with the assistance of a cane and was noted as having a limped gait. Physical examination revealed forward flexion to 60 degrees; extension to 10 degrees or greater; right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; right lateral rotation to 25 degrees; and left lateral rotation to 25 degrees. The Veteran reported experiencing flare-ups at a 10 on a scale of 1 to 10 about three to four times a year. Objective evidence of painful motion and tenderness were noted on examination. At a September 2015 VA examination, the Veteran reported that his back pain had grown progressively worse with symptoms that included a sharp stabbing pain with increased movement. The Veteran stated that he treated his lower back pain with diet modification, avoiding heavy lifting, gabapentin, and pain medication. The Veteran reported intermittent flare-ups of back pain with increased physical activity such as prolonged walking. Physical examination revealed forward flexion to 60 degrees; extension to 15 degrees or greater; right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. There was no evidence of pain with weight bearing; no guarding or muscle spasm on examination; and no ankylosis of the thoracolumbar spine. The examiner did note evidence of radiculopathy. A lumbar spine x-ray from July 2012 showed evidence of scoliosis. During the appeal, the Veteran has competently and credibly reported low back pain, flare-ups, and radiating pain. His complaints are supported by objective evidence. Medical evidence further shows that the Veteran has a diagnosis of scoliosis. The range of motions alone exhibited at the January 2011 and September 2015 VA examinations do not show that a rating in excess of 10 percent is warranted. However, the evidence of record does show that a 20 percent rating is warranted due to the finding of scoliosis on a July 2012 x-ray. Medical treatment records dated prior to December 2010, the date of the claim for an increased rating, also show evidence of scoliosis. Hence, the Board will resolve reasonable doubt and assign a 20 percent rating for the entire appellate term. There was no evidence of record prior to September 28, 2016 indicating that forward thoracolumbar flexion was limited to 30 degrees or less. Further there was no evidence indicating that the Veteran had favorable ankylosis of the entire thoracolumbar spine. The Board acknowledges the Veteran’s statements describing his pain and discomfort, and the impact that his back disability has had on his activities of daily living. The Veteran is competent to describe his observations, and the Board finds no reason to doubt his report of ongoing pain and impact of pain on his daily activities. Significantly, however, the rating criteria for evaluating low back disorders set forth at 38 C.F.R. § 4.71a are controlling with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Hence, without evidence of forward thoracolumbar flexion limited to 30 degrees or less, and without evidence of favorable ankylosis of the entire thoracolumbar spine there is no basis for a rating greater than 20 percent. Accordingly, the evidence supports the assignment of a 20 percent rating for the lumbosacral strain, but no more. To this extent the claim is granted. Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). ("By requiring only an 'approximate balance of positive and negative evidence' . . ., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits."). REASONS FOR REMAND At a September 2016 VA examination, the Veteran reported chronic low back pain that radiated to the lower extremities. The examiner noted that range of motion study revealed forward flexion to 70 degrees; extension to 20 degrees or greater; right lateral flexion to 20 degrees; left lateral flexion to 30 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. Despite the demonstrated range of motion, the examiner also found evidence of ankylosis of the spine. The Board notes that Dorland’s Illustrated Medical Dictionary 94 (31st ed. 2007) defines ankylosis as the “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Accordingly, given the apparent discrepancy in the examination report, further development is in order Accordingly, this case is REMANDED for the following action: 1. Associate with the record any VA medical records not already of record pertaining to treatment of the Veteran, to include records after September 2016. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for a VA spine examination which addresses the current nature and severity of a lumbosacral strain. The examiner must review the Veteran’s VBMS and Virtual VA/Legacy files, and should note that review in the report. All indicated tests and studies should be accomplished and the findings reported in detail. The examiner must provide active and passive ranges of lower back motion, and ranges of motion for weight-bearing and non weight-bearing. The examiner should state whether there is any additional loss of function due to painful motion, excess motion, fatigability, incoordination, weakened motion, or on flare up. The examiner should opine as to the impact of the back disability on the Veteran’s activities of daily living. The examiner must review the September 2016 examination report and clarify whether the appellant at any time since September 2016 has shown favorable or unfavorable ankylosis of the thoracolumbar spine. A complete, well-reasoned rationale must be provided for any and all opinions offered. If any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required,   or the examiner does not have the needed knowledge or training. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. D. Cross, Associate Counsel