Citation Nr: 18150222 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 17-27 080 DATE: November 14, 2018 ORDER An evaluation in excess of 10 percent for lumbosacral strain is denied. REMANDED Service connection for a psychiatric disorder is remanded. FINDING OF FACT The Veteran’s lumbar strain is manifested by pain, limited motion, fatigue, and lack of endurance with forward flexion greater than 60 degrees and combined range of motion of the thoracolumbar spine greater than 120 degrees, and without muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for lumbar strain are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2007 to May 2013 and August 2013 to January 2014 with additional periods of National Guard service. These matters come to the Board of Veterans’ Appeals (Board) from an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). New and material evidence was received within one year of the previous September 2015 and November 2015 rating decisions. The RO last readjudicated the appeal in April 2016. See 38 C.F.R. § 3.156(b). Although additional VA treatment records were received after the March 2017 statement of the case, such evidence is not pertinent to the issue decided herein. Therefore, the Board may proceed to a decision without prejudice to the Veteran. 38 C.F.R. § 20.1304(c) (2017). Further, the Veteran submitted evidence after the filing of a substantive appeal received on or after February 2, 2013; thus, the Board will initially review any such evidence. 38 U.S.C. § 7105(e) (2012). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. §20.900(c) (2017). 38 U.S.C. §7107(a)(2) (2012). Evaluation in excess of 10 percent for lumbosacral strain The Veteran seeks a higher rating for his lumbosacral strain. He reports that his disability manifests in difficulty rotating his body and functioning at work. See May 2016 notice of disagreement. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, 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 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The assignment of staged ratings is also appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s lumbar strain is rated under 38 C.F.R. § 4.71a, DC 5237 and assigned a 10 percent rating effective March 3, 2015. Service connection was granted in a September 2015 rating decision and the Veteran filed a claim for an increased rating in November 2015. DC 5237 evaluates lumbosacral strain with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine. A 20 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is 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 when forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Spinal disabilities may alternately be rated under DC 5243, if intervertebral disc syndrome (IVDS) is present. 38 C.F.R. § 4.71a, DC 5243. The Veteran does not contend, and the record does not show, a diagnosis of IVDS of the thoracolumbar spine. Thus, a rating is not available under DC 5243. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (2). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). “Although pain may cause a functional loss, pain itself does not constitute functional loss.” Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (emphasis in original). Painful motion is deemed to be limitation of motion and warrants the minimum compensable rating for the joint, even if there is no actual limitation of motion. 38 C.F.R. § 4.59; Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). The provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). VA treatment records reflects complaints of pain, functional limitation and a reduced range of motion. In October 2015, the Veteran reported radiating lower back pain when sitting or standing. Clinical evaluation showed limited range of motion in flexion. November 2015 VA treatment records show trunk extension was limited due to pain. The Veteran reported worsening symptoms after prolonged sitting. See December 2015 VA treatment records. The Veteran underwent a VA examination in August 2015. The examiner noted a diagnosis of lumbosacral strain. The Veteran reported flares with sharp pain after prolonged sitting. Upon examination, the Veteran was noted to have normal range of motion in initial testing (with flexion at 90 degrees, extension to 30 degrees, and lateral flexion and extension to 30 degrees bilaterally) and after repetitive use testing. Although the examiner noted no objective evidence of pain, the examiner indicated pain causes functional loss with flares. The examiner was unable to describe the functional loss in terms of degrees lost in range of motion. The examiner further noted that there was guarding, spasm, and tenderness which did not result in abnormal gait or spinal contour. The examination was otherwise normal in terms of musculature, reflexes, sensory and straight leg testing. There was no atrophy, radiculopathy, neurologic abnormality, IVDS, or arthritis shown in imaging. The Veteran was afforded another VA examination in March 2016. The examiner noted diagnoses of lumbosacral strain and thoracic strain. The Veteran reported flare-ups that he described as sharp pain and decreased range of motion. The Veteran was noted to have normal range of motion in initial testing and after repetitive use testing. Pain was present during forward flexion and with weight bearing motion. The examiner indicated that pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time and during flare ups. The examination was otherwise negative for spasm, tenderness, guarding, abnormal muscle strength, atrophy, neurologic abnormalities, sensory abnormalities, IVDS, or reflex abnormalities. Imaging of the lumbar and thoracic spine was normal, and arthritis was not shown. In an August 2016 VA examination, the examiner again noted diagnoses of lumbosacral and thoracic strain; the thoracic strain was a progression of the Veteran’s service-connected lumbosacral strain. The Veteran reported symptoms of muscle spasms, limited range of motion, and pain down the right thigh. The examiner noted that right thigh pain was not evidenced upon examination. Further, the examination showed normal range of motion on initial range of motion testing. The Veteran reported flares with pain after prolonged sitting or standing. The examiner noted occupational impact in that sedentary work creates lumbar pain and the need to walk around. The examiner indicated that pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time and during flare ups. The examiner indicated that there was no additional loss in range of motion upon flare and after repeated use over time. The examiner noted no guarding, spasm, atrophy, radiculopathy, IVDS, or other neurologic findings. Testing also showed normal results on muscle, sensory, and reflex exams. Based upon review of the evidence, the Board finds that a rating in excess of 10 percent is not warranted. In order to warrant a rating in excess of 10 percent for this period, forward flexion of the thoracolumbar spine must be between 31 and 60 degrees; or the combined range of motion must be 120 degrees or less; or, muscle spasm or guarding must be severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. During all VA examinations, the Veteran demonstrated a normal range of motion upon initial testing (with flexion at 90 degrees, extension to 30 degrees, and lateral flexion and extension to 30 degrees bilaterally) and after repetition. Because the Veteran’s lumbar spine limitation does not approximate 31 to 60 degrees of flexion, have a combined range of motion 120 degrees or less, or cause abnormal gait or spinal contour, the Board finds that the functional loss does not meet the requirements for a 20 percent disability rating during the appeal period. The Veteran is already in receipt of the minimum compensable rating of 10 percent for functional loss due to painful motion that is otherwise not compensable under the rating criteria. See Mitchell, 25 Vet. App. at 38-43; DeLuca, 8 Vet. App. at 204-7. A higher schedular disability rating is not required where the functional limitation due to pain does not result in limitation of motion sufficient to meet the requirements of the next higher disability rating. See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016) (holding that §§ 4.40 and 4.45 do not supersede the requirements for a higher disability rating specified in § 4.71a). Furthermore, the August 2016 VA examiner opined that although pain, weakness, fatigability or incoordination limit functional ability with repeated use over a period of time and during flare ups, the Veteran does not have additional loss in range of motion. The Board acknowledges that in advancing this appeal, the Veteran, believes that his disability is more severe than the assigned disability rating reflects. However, the competent medical evidence offering detailed specific range of motion and other determinations pertinent to the rating criteria are the most probative evidence with regards to evaluating the pertinent symptoms for the disability on appeal. A rating in excess of 10 percent is not warranted at any time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). There are no additional expressly or reasonably raised issues presented on the record. REASONS FOR REMAND Service connection for an acquired psychiatric disorder is remanded. The Veteran seeks service connection for PTSD. He reported a stressor related to the death of his friend in a roadside bomb during his 2009 deployment. See March 2015 VA 21-0781. The Veteran also reported taking fire from rockets and rocket propelled grenades. The Veteran indicated that he currently experiences nightmares about his friend’s death and easily startles. Further development of the claim is necessary to allow the Board to make a fully-informed decision. It is unclear whether the Veteran now has a current diagnosis of PTSD under the DSM-5 that conforms with VA requirements, and no examiner has adequately opined as to whether the diagnosis, or any diagnosis, is at least as likely as not related to service. At the October 2015 VA examination, the examiner determined that the Veteran’s reported stressor of fearing for his life after his friend’s death was an adequate stressor to support of diagnosis of PTSD and the reported was related to the Veteran’s fear of hostil military activity. However, did not endorse a diagnosis of PTSD as Criterion B was not met. The examiner instead provided a diagnosis of anxiety disorder. The examiner provided a negative nexus opinion and reasoned that the Veteran’s reported onset of psychiatric symptoms was not corroborated by medical evidence. The Board observes, however, that service treatment records reflect complaints of relevant symptoms. Notably, the Veteran reported emotional difficulty with recurrent lack of interest in things and feelings of depression and hopelessness in a February 2010 post deployment health assessment. Further, in August 2012 service treatment records, the Veteran reported feelings of guilt and sleep issues since his 2009 deployment. The Board also notes that after that examination was concluded, various additional private treatment records which show a diagnosis of PTSD were received into the file. Specifically, May 2018 private treatment records reflect diagnoses of PTSD, depressive disorder, and anxiety disorder. A June 2018 private opinion also reflects a diagnosis of PTSD. Furthermore, in November 2015 after the VA examination, a written statement was received from a fellow service member, R.C. R.C. reported that he served with the Veteran in his first deployment and observed a change in the Veteran’s behavior during service. Specifically, R.C. indicated onset of social isolation, depression, trouble in getting along with others, and increased anger/attitude. The Veteran also disclosed sleep issues to R.C. in service. As it appears that the examiner may not have relied upon an entirely accurate or comprehensive factual premise, a new VA examination and opinion is necessary. The matter is REMANDED for the following action: 1. Contact the Veteran and ask that he identify all medical treatment received for his psychiatric disorders. Obtain any relevant, outstanding VA and private treatment records identified. 2. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any current psychiatric disorder, to include PTSD and anxiety disorder. The examiner should review the claims file, including a complete copy of the remand, in connection with the examination. a) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. The examiner is advised that the October 2015 VA examiner has opined that the Veteran’s reported fear of hostile military or terrorist activity during his active duty service is adequate to support a diagnosis of PTSD. If the Veteran does not meet the criteria for PTSD, the examiner should note which criteria are missing; and indicate whether any prior diagnoses of PTSD in the claims file were inappropriate or misdiagnoses, and explain that conclusion. b) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran’s reported in-service symptoms. (Continued on the next page)   A complete rationale for the requested opinions should be provided. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain why this is so. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Vuong, Associate Counsel