Citation Nr: 18153064 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-31 402 DATE: November 27, 2018 ORDER An initial increased rating of 20 percent for a low back disability is granted. REMANDED Entitlement to an increased rating in excess of 20 percent for a low back disability is remanded. FINDING OF FACT The Veteran’s low back disability has been manifested by an abnormal spinal contour, diagnosed as levoscoliosis. CONCLUSION OF LAW The criteria for a rating of 20 percent for a back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from May 2007 to July 2014. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Increased rating of 20 percent for a back disability Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id. 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 Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disorder. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 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. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent evaluation is assigned when the forward flexion of the thoracolumbar spine is 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. The criteria for a 30 percent evaluation pertain only to the cervical spine and are therefore not applicable in this case. A 40 percent evaluation is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation is assigned when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. 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. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Pursuant to 38 C.F.R. § 4.59, painful motion is an important factor of a disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; Burton v. Shinseki, 25 Vet. App. 1 (2011). When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board finds that the Veteran meets the rating criteria requirements for a 20 percent evaluation. As noted above, the criteria require that the forward flexion of the thoracolumbar spine be greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine be less than 120 degrees; or, there must be muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Veteran received a spinal x-ray in June 2016, in connection with a VA examination. The x-ray showed that the Veteran suffers from minimal levoscoliosis. The levoscoliosis diagnosis established by the June 2016 x-ray and associated VA examination, in combination with the 2018 opinion of the private examiner regarding the presence of muscle spasms sufficient to cause such a spinal curvature, is sufficient to meet the criteria for a rating of 20 percent for a back disability. For a rating of 20 percent, the Veteran qualifies if there is muscle spasm or guarding severe enough to result in abnormal spinal contour such as scoliosis. The Board finds the VA examiner, reporting a diagnosis of levoscoliosis, to be competent and credible. The examiner reviewed the claims file, addressed the Veteran’s lay statements, and provided reasonable rationales supporting the assigned diagnosis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Board also finds the private examiner to be competent and credible. The examiner examined the patient in person and considered the Veteran’s medical history in forming an opinion. Therefore, based on the medical evidence establishing a diagnosis of levoscoliosis, and the presence of muscle spasms, the Board finds that the Veteran meets the criteria for an increased rating of 20 percent for a back disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5243. Consideration of a disability rating higher than 20 percent for a back disability will be addressed in the remand portion of this decision.   REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for a back disability is remanded. As noted above, the Veteran’s medical records indicate a 2016 diagnosis of levoscoliosis, and the presence of muscle spasms, which satisfies the criteria for a 20 percent disability rating for the Veteran’s back disability. However, in order to meet the criteria for a rating of 40 percent the Veteran’s forward flexion of the thoracolumbar spine must be 30 degrees or less; or, there must be favorable ankylosis of the entire thoracolumbar spine. The medical evidence of record in this case illustrates drastically different opinions regarding the functional state of the Veteran’s back disability. In a January 2015 VA examination, the examiner considered the Veteran’s spinal flexion and rotation. The examiner’s report indicates a forward flexion of 80, extension of 30, and right and left lateral rotation and flexion all to be 30. Examiners are required to provide an opinion, if possible, regarding the functional loss associated with pain and flare-ups. 38 C.F.R. §§ 4.40 and 4.45. Examiners have the ability to estimate functional loss due to pain during flare-ups based on lay statements describing functional loss and the severity, duration and characteristics of flare-ups. If the examiner concludes that he or she cannot provide an opinion as to an estimate of additional loss of ROM due solely to not being able to directly observe the Veteran under those circumstances, the opinion is inadequate. If the examiner states he or she cannot estimate additional loss of ROM, he or she must elicit adequate information as to the duration, characteristics, severity or functional loss by means other than direct observation. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The January 2015 VA examiner took into consideration the Veteran’s statements regarding flare-ups and accordingly, the examiner opined as to the spinal movement during such an episode. The examiner reported that during a flare-up the Veteran has a forward flexion of 70, extension of 20, and right and left lateral rotation and flexion all to be 20. Then, in June 2016, the Veteran was provided another examination. The June 2016 examiner reported a forward flexion of 75, extension of 20, and both right and left lateral flexion and extension all of 30 or greater. The examiner also found that there was no IVDS that required bed rest in the past 12 months. The report indicates that the Veteran referenced experiencing flare-ups in back pain however, the 2016 examiner did not express an opinion as to the effect of the flare-up on the disability and provided no rationale for the lack of opinion. Therefore, this exam is incomplete in this area under Sharp. 29 Vet. App. 26 (2017). In addition to the two VA examinations, the Veteran also submitted a March 2018 examination report from a private provider. This report contained drastically lower movement measurements. The private opinion reported a forward flexion of 45, extension of 25, and both right and left lateral flexion and extension of 20. The private provider also opined as to the effect of a flare-up on the Veteran’s condition. The opinion states that during a flare-up the Veteran’s forward flexion is reduced to 5, extension of 10, both right and left lateral flexion of 10, and both right and left lateral rotation of 5. The Board finds that the state of the competent evidence requires a remand in this case in order to determine the current state of the Veteran’s back condition beyond the aforementioned grant of 20 percent earlier in this opinion. Indeed, the medical evidence of records shows contradicting opinions that indicate drastically different levels of range of motion for the Veteran’s back disability. Due to the inadequacy of the 2016 VA examination, the only two medical opinions of record are separated by more than three years and therefore, the Board finds that a new VA examination is warranted to establish a current evaluation of the Veteran’s range of motion in relation to his low back disability.   The matter is REMANDED for the following actions: 1. Obtain any outstanding treatment records not yet associated with the claims file. 2. After associating any records with the claims file, schedule the Veteran for an appropriate VA examination related to a back disability (to include lumbosacral strain and intervertebral disc syndrome). Review of the claims file should be noted in the examiner’s report. The examiner is to explain the reasons for any opinion offered. The examiner is to describe all impairments of the Veteran's back; make determinations regarding range of motion, including any additional functional impairment; and identify any related neurological symptoms. (a) The examiner should test active and passive range of motion, and provide weight-bearing and non-weight-bearing information, or detail why such testing is not necessary. Range of motion should be expressed in terms of degrees for active and passive motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b) The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion caused by flare-ups of the Veteran's disability (if the Veteran is not experiencing a flare-up at the time of the examination, the examiner should ask the Veteran to describe the frequency, severity, duration, and type of symptoms experienced during flare-ups and provide an opinion based on that information). The examiner's comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss or loss during flare-ups should be expressed in degrees of additional range of motion loss. The examiner must consider lay reports from the Veteran along with pertinent medical evidence, including medical literature submitted by him. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Watkins, Law Clerk