Citation Nr: 18152574 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-41 064 DATE: November 23, 2018 ORDER Entitlement to a disability rating in excess of 20 percent for a lumbosacral strain is denied. REMANDED Entitlement to service connection for a bilateral knee condition is remanded. FINDING OF FACT Throughout the appeal period, the Veteran’s lumbosacral strain has manifested with a range of motion that does not limit forward flexion of the thoracolumbar spine to less than 60 degrees, that does not limit total motion of the thoracolumbar spine to less than 120 degrees, and that does not result in muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 20 percent for a lower back condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had periods of active service from July 1981 to July 1984, April 2005 to September 2005, October 2005 to September 2006, from August 2008 to March 2009, and from February 2010 to June 2010, with additional reserve and National Guard service. These maters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in January 2014 and January 2015. 1. Entitlement to a disability rating in excess of 20 percent for a lumbosacral strain. Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). “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.” Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must consider the evidence of disability during the period one year prior to the application. Hazan v. Gober, 10 Vet. App. 511 (1997). Where there is a question as to which of two ratings shall be applied, the higher rating 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. VA examinations of joints are required to record a veteran’s relevant joint’s active and passive ranges of motion, and to test a veteran’s relevant joint for pain on both active and passive motion, in weight bearing and non-weight bearing, and, if possible, to conduct similar tests on a veteran’s opposite, undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). VA regulations and governing case law anticipate that examiners will offer opinions regarding additional functional loss due to flare ups, including estimates of additional loss of range of motion in degrees where appropriate, and that the Board shall ensure that examiners have evaluated all procurable and assembled information before determining that such estimates cannot be made. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of a matter. VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lumbosacral strain is among the disabilities rated under the General Rating Formula for Diseases or Injuries to the spine based on the limitation of motion; effects on posture or gait; or other manifestations such as the abnormal curvature of the spine itself. Associated objective neurologic abnormalities are rated separately. Normal range of motion for the thoracolumbar spine consists of: forward flexion of zero to 90 degrees, extension of zero to 30 degrees, left and right lateral flexion of zero to 30 degrees, left and right lateral rotation of zero to 30 degrees, and a combined total range of motion of 240 degrees. The combined range of motion is determined by adding together the ranges of motion for forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Diagnostic Codes 5235-5243. There is an alternative formula for rating intervertebral disc syndrome (IVDS). 38 C.F.R. § 4.71a, Diagnostic Code 5243. However, this is not discussed further as the medical evidence of record contains no evidence or suggestion that the Veteran has been diagnosed with IVDS. The Veteran’s lumbosacral strain is currently rated 20 percent disabling. VA assigns a 20 percent disability rating where a lumbosacral strain results in 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. VA assigns a 40 percent rating where a lumbosacral strain results in limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or, for favorable ankylosis of the entire thoracolumbar spine. VA assigns a 50 percent disability rating where a thoracolumbar strain results in unfavorable ankylosis of the entire thoracolumbar spine. Finally, VA assigns a 100 percent disability rating where a thoracolumbar strain results in unfavorable ankylosis of the entire spine. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. The Veteran’s VA treatment records during the appeal period do not document a history of regular treatment for his lumbosacral strain. During his various VA examinations described below, the Veteran confirmed that he most frequently treated his lower back pain with over the counter medications. The Veteran underwent a VA examination in November 2012. This examination confirmed his previous diagnosis of lumbar strain. The Veteran reported constant pain in his low back and had flare-ups consisting of sharp pain in low back when twisting, occurring 156 times a year, and lasting for approximately 3 hours. He worked through them when he could. His initial range of motion in the lower back was measured as forward flexion to 90 degrees or greater without evidence of pain, extension to 30 degrees or greater without evidence of pain, right lateral flexion to 30 degrees or greater without evidence of pain, right lateral flexion to 30 degrees without evidence of pain, left lateral flexion to 30 degrees or greater without evidence of pain, right lateral rotation to 30 degrees or greater without evidence of pain, left lateral rotation to 30 degree or greater without evidence of pain. No additional limitation of range of motion after repetitive use testing was observed and there was no functional loss or impairment of the thoracolumbar spine. The examiner noted mild tenderness over the Veteran’s left lower back at L5/S1. The examination revealed no spasm, normal strength, no atrophy, normal reflexes, normal sensation, negative straight leg raising tests bilaterally, no radiculopathy, and no IVDS. The Veteran underwent another VA examination in November 2014. This examination documented a diagnosis of back strain with muscle spasms. The Veteran explained that he was still having episodes of back spasm from a 1982 jump that he treated with over the counter pain relievers. The Veteran denied flare-ups that impacted the function of the thoracolumbar spine. His initial range of motion was measured as forward flexion to 80 degrees with pain at 60 degrees, extension to 20 degrees with pain at 10 degrees, right lateral flexion to 30 degrees with pain at 25 degrees, left lateral flexion to 30 degrees with pain at 25 degrees, right lateral rotation to 30 degrees with pain at 25 degrees, and left lateral rotation to 30 degrees with pain at 25 degrees. He was able to perform repetitive use testing without additional loss of function or range of motion. The Veteran had functional loss or impairment due to less movement than normal or pain on movement. The examiner explained that the Veteran reported that pain limited his functional ability during flare-ups by increasing pain without reducing motion. The examiner noted tenderness on the left of the L4/L5. Guarding or muscle spasm was noted to be present without causing abnormal gait or spinal contour. The Veteran had normal strength in the legs, no atrophy, normal reflexes, normal sensation, demonstrated a negative straight leg raising test bilaterally, had no radiculopathy, no neurological abnormalities, no IVDS, and used no assistive devices. The Veteran underwent another VA examination in March 2016. This examination confirmed the diagnosis of a lumbosacral strain. The Veteran reported symptoms of pain and stiffness, flare-ups consisting of increased pain and limited range of motion which required the use of pain medications and rest, functional loss consisting of the inability to sit in a fixed position or stand for more than 30 minutes, and an inability to climb. On examination the Veteran’s initial range of motion was measured as forward flexion to 90 degrees, extension to 5 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 30 degrees, and left lateral flexion to 20 degrees. Pain was noted on the examination but did not result in functional loss. Pain was noted with extension and left lateral rotation, and no evidence of pain with weight bearing was documented. The Veteran was able to perform repetitive use testing without additional loss of function. Pain and fatigue significantly limited functional ability with repeated use over time and flare-ups, but the examiner indicated that estimating any change in the limitation of motion would be speculation because the examination was not being conducted under those circumstances. The examiner noted additional functional loss due to interference with sitting and standing. The Veteran’s right knee extension had decreased strength but otherwise leg strength and reflexes were normal bilaterally. There was no muscle atrophy. The examiner documented decreased sensation in the lower legs/ankles and feet/toes bilaterally, and negative straight leg raising tests bilaterally that the examiner stated were more typical of neuropathy. There was no radiculopathy, no ankylosis, no other neurological abnormalities, no IVDS. This examination documented no guarding or muscle spasm. The Veteran most recently underwent a VA examination in August 2018. The examiner confirmed the Veteran’s diagnosis of a lumbosacral strain. The Veteran reported that his pain had increased over time and noted that he had difficulty climbing ladders, bending, and lifting things. He stated that he treated his back pain with over the counter pain medications, and the examiner noted that no x-rays were available. The Veteran reported flare-ups consisting of increased pain with bending or use of the back. He reported missing 1-3 days of work per month due to his back condition. His initial range of motion was measured as forward flexion to 65 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. His passive range of motion was identical. Abnormal range of motion did not contribute to functional loss, pain was noted on the examination with forward flexion, extension, right lateral rotation, and left lateral rotation, but did not result in functional loss. There was no localized tenderness or pain on palpation, but there was evidence of pain with weight-bearing and non-weightbearing. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. Pain after repetitive use over a period of time or during flare-ups limited functional ability, but did not decrease the range of motion according the Veteran’s reports. There was no guarding or muscle spasm noted on the examination. The Veteran had normal strength, reflexes, and sensation throughout the lower extremities, and no radicular pain in lower extremities. There was no IVDS. Based on this evidence, the Board finds that the symptoms of the Veteran’s lumbosacral strain do not meet the criteria for a rating in excess of 20 percent. In order to meet the criteria for the next highest disability rating, the evidence would have to show either limitation of forward flexion to 30 degrees or less; or, favorable ankylosis of the thoracolumbar spine. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. The results of the examinations above document that the Veteran has always had more flexibility in his thoracolumbar spine than contemplated by the 40 percent criteria during the appeal period. Id. The Board has also considered the special considerations applicable to rating disabilities under Correia and DeLuca as well as the regulations that those cases interpret. However, while these considerations can help in understanding a Veteran’s overall disability picture, the appropriate rating assigned is still that set forth in the schedule. Thompson, 815 F.3d 781, 785. Consistent with the rating table for conditions of the spine, the Board has also considered whether separate compensation is warranted for the symptoms typical of bilateral neuropathy of the lower extremities documented in the March 2016 VA examination. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243, n.1. However, the Board finds that the evidence does not show that separate compensation for bilateral lower extremity neuropathy is warranted. No formal diagnosis of this condition was made during the examination. Instead the examiner noted that these symptoms were more consistent with neuropathy than radiculopathy. The Board also notes that these symptoms do not recur on any of the other examinations during the appeal period, including the examination conducted in 2018 which documented more significant symptoms in terms of limitation of range of motion. The Board also notes that the Veteran does not appear to have complained of the neuropathy symptoms documented during the 2016 VA examination when listing the symptoms brought on by his back condition at that or any of the other examinations and has never sought treatment for those conditions. Based on this evidence, the Board concludes that while symptoms consistent with neuropathy were present on the 2016 VA examination, the preponderance of the evidence of record weighs against a finding that this condition represented a consistently disabling condition for the Veteran. For the reasons described above, the Board finds that the Veteran does not meet the criteria for a disability rating in excess of 20 percent for a lumbosacral strain or for additional compensation for bilateral lower extremity neuropathy. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral knee condition is remanded. The Veteran indicated that his left knee condition began in November 2011 during his service in the National Guard. In a November 2012 statement, the Veteran even identified the approximate date in November 2011 that he believes that this injury occurred and the circumstances of the injury. VA records confirm that the Veteran’s compensation was offset by 66 days of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) during 2011. However, the available records do not permit the Board to identify when in 2011, the Veteran was either ACDUTRA or INACDUTRA during that year. The AOJ should attempt to verify the Veteran’s period of active duty for training or inactive duty for training by obtaining appropriate records. The Veteran’s right knee was noted to have soft tissue fullness suggesting the possibility of fluid accumulation within the articular space of the joint in a January 2000 x-ray. VA treatment notes also document that the Veteran complained of right knee pain with weight-bearing that began as far back as 2009. However, the VA examinations of record do not address whether these constitute a disability that predated several periods of active duty service, whether there was any increase in the severity of these conditions during Veteran’s subsequent periods of active service, or whether there is clear and unmistakable evidence that these conditions were not aggravated by the subsequent periods of active service. Consequently, a remand is required to address these questions. The matter is REMANDED for the following actions: 1. Obtain the Veteran’s complete service personnel records, to include all documents pertaining to his service in the National Guard. Verify all active duty for training and inactive duty training dates for the service in the National Guard from 2011. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s bilateral knee disabilities. With regard to the right knee, the examiner should state whether the Veteran’s January 2000 x-ray findings and complaints of pain in the right knee constitute a disability that clearly and unmistakably (undebatable) preexisted the Veteran’s subsequent periods of active duty service. If the examiner finds it did clearly and unmistakably preexist those subsequent periods of active service, the examiner must opine whether it was clearly and unmistakably not aggravated by service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. In the event that the Veteran’s ACDUTRA or INACDUTRA status during November 2011 is confirmed, the examiner should opine as to whether it is at least as likely as not that the Veteran’s left knee condition began during his ACDUTRA or INACDUTRA service during November 2011. (Continued on the next page)   If the examiner determines that the requested opinions may not be provided without a physical examination of the Veteran, such should be scheduled. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel