Citation Nr: 1827675 Decision Date: 05/01/18 Archive Date: 05/14/18 DOCKET NO. 10-30 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for tremors, to include as secondary to medication used to treat a service-connected disability. 2. Entitlement to a disability rating in excess of 20 percent for degenerative joint disease (DJD) of the lumbar spine (hereinafter "lumbar spine disability"). REPRESENTATION Appellant represented by: John S. Berry, Esq. ATTORNEY FOR THE BOARD J. Coogan, Associate Counsel INTRODUCTION The Veteran had active service in the U.S. Army from January 1986 to June 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. An August 2014 Board decision denied the issues of entitlement to service connection for an acquired psychiatric disorder and tremors; denied increased ratings for the lumbar spine disability and an eye disability; and denied entitlement to a separate disability rating for neurological manifestations of the service-connected lumbar spine disability other than the service-connected left lower extremity radiculopathy. In April 2015, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), for the issues of denial of service connection for an acquired psychiatric disorder, an eye disability, and tremors, and denial of an increased rating for the lumbar spine disability. In August 2015, the Veteran and the VA General Counsel filed a Joint Motion for Partial Remand (JMPR), to vacate the Board's decision as to the issues of denial of service connection for an acquired psychiatric disorder and tremors, and denial of an increased rating for the lumbar spine disability. In an August 2015 Order, the Court granted the JMPR and remanded the case for readjudication of these three issues in accordance with the JMPR. In January 2016 and August 2017, the Board remanded the Veteran's claims for service connection for an acquired psychiatric disorder and tremors, and an increased rating for lumbar spine disability, for further development. In February 2018, a rating decision granted service connection for bipolar disorder with complaints of insomnia, fatigue, irritability, and diminished sex drive. FINDINGS OF FACT 1. During the appellate period, the available evidence of record does not demonstrate that the Veteran had forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 2. Resolving all reasonable doubt in favor of the Veteran, his currently diagnosed tremors are due to the medication required to treat his service-connected bipolar disorder. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for degenerative joint disease of the lumbar spine, have not been met. 38 U.S.C. § 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5242 (2017). 2. The criteria to establish entitlement to service connection for tremors, as secondary to service-connected bipolar disorder. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, the duty to notify was satisfied. As for the duty to assist, pertinent post-service medical records have been obtained, to the extent available, and no outstanding post-service records have been identified by the Veteran that have not been sought. The Board therefore finds that no additional evidence, which may aid the Veteran's claims or might be pertinent to the bases of any claim decided herein, has been submitted, identified or remains outstanding. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Over the course of this claim, including in petitions by the Veteran's representative, the August 2015 CAVC JMPR, and several Board remands, potential problems with the Veteran's VA examinations for his lumbar spine disability have been raised. The Veteran's claim has been remanded multiple times for additional VA examinations for his lumbar spine disability, to correct these issues. The Board finds that the Veteran's August 2016 and September 2017 VA examinations (with the related January 2018 supplemental statement by the examiner), read in combination, adequately provide the medical information necessary for a decision on the Veteran's lumbar back disability claim and meet the legal requirements for such an examination. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017) (VA examiners should provide an opinion as to additional functional loss during flare ups of musculoskeletal disability). The Board finds that the VA has satisfied all statutory and regulatory notice and duty to assist requirements. Thus, adjudication of the Veteran's claims at this time is warranted. In adjudicating the claims, the Board notes that it has reviewed all of the available evidence in the record on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence, certainly not in exhaustive detail. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, concerning each of the claims. Service Connection for Tremors Service connection may be established for a disability resulting from diseases or injuries that are clearly present in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for a disability diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303 (2017). In addition, service connection may be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. The Veteran has asserted that he suffers from intermittent tremors or shaking in his hands, especially under stressful conditions. The evidence establishes that the Veteran has a current diagnosis of benign tremor in his hands. For example, two August 2009 VA treatment records noted the Veteran's tremor, potentially linking it to his psychiatric medication, and an August 2013 VA examination officially diagnosed the Veteran with a benign tremor in his hands. In the August 2013 VA examination, the examiner opined that it was at least as likely as not that the Veteran's intermittent, minimal benign tremors of the hands were secondary to treatment of his bipolar disorder. The VA examiner noted that medical records showed the Veteran's bipolar disorder had been treated with the medications lithium carbonate and aripiprazole, and that the medical literature supported hand tremors as a side effect of these medications. The August 2013 VA examiner, however, noted that the Veteran was not service connected for his bipolar disorder at that time. Recently, in a February 2018 rating decision, the Veteran was granted service connection for his bipolar disorder condition. There is no contrary opinion of record addressing a relationship between the Veteran's tremors and his service connected bipolar disorder. The Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Thus, the Board finds that in light of the August 2013 VA examiner's opinion finding that the Veteran's currently diagnosed hand tremors are at least as likely as not secondary to the treatment of the Veteran's now service connected bipolar disorder (i.e., caused by his bipolar disorder medication), service connection for tremors is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49. Increased Rating for Lumbar Spine Disability The Veteran has asserted that his lumbar spine disability is more severe than reflected in the current 20 percent rating. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. See 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such diseases or injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. § 4.40 and 4.45. The diagnostic codes (DC) pertaining to range of motion (ROM) do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare ups. See DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). See also Sharp v. Shulkin, 29 Vet. App. 26 (2017) (Veteran may be entitled to higher disability rating than supported by the mechanical application of the schedule where there is evidence his or her disability causes additional functional loss, including due to pain or during flare ups). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. See Mitchell, 25 Vet. App. 32. Thus, when rating spine disabilities under the current rating criteria, the Board must discuss any additional limitation of motion that a Veteran has due to pain, weakness, or fatigue. Cullen v. Shinseki, 24 Vet. App. 74 (2010). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All spine disabilities are rated under a General Rating Formula for Diseases and Injuries of the Spine, unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. The General Rating Formula for Diseases and Injuries of the Spine provides that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of injury or disease, the following ratings will apply: A 20 percent rating is given for, in pertinent part, 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 given for, in pertinent part, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is given for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is given for unfavorable ankylosis of the entire spine. When rating diseases and injuries of the spine, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2017). For VA 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. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note (2) (2017). Under the General Rating Formula for Diseases and Injuries of the Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 38 C.F.R. § 4.71a, DC 5243, "incapacitating episodes" are defined as periods of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician. DC 5243, Note (1). Under DC 5243, a 20 percent rating is given if the condition has incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is given if the condition has incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating, the highest available rating, is given if the condition has incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. In the September 2010 rating decision on appeal here, the Veteran's lumbar spine disability rating was increased to 20 percent disabling under Diagnostic Codes 5010-5242, effective July 19, 2010. In a January 2013 rating decision, the Veteran was granted an earlier effective date of July 19, 2009 for the 20 percent rating. The next highest available potential rating for the Veteran's lumbar spine disability would be 40 percent, which requires forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. There are no private or VA treatment records in the available claims file that indicate the Veteran had any form of ankylosis during the appellate period. In addition, although the VA treatment records show that the Veteran was treated for his lumbar spine disability during the appellate period, there are no private or VA treatment records that document any actual measurements of the Veteran's forward flexion ROM. In December 2009, a VA Primary Care Outpatient record notes that the Veteran had had a recent increase in low back pain, and that, among other symptoms, forward bending was "very limited." This December 2009 record appears to say that the Veteran could touch fingertips to knees, walking down and back up, but the record gives no actual ROM measurements for forward flexion. Later in December 2009, the Veteran started a course of physical therapy (PT) for low back problems, with his first PT record stating his lumbar flexion was "WNL" with pain. In early January 2010, a PT Interim Note states that the Veteran reported his back pain had increased due to moving snow the prior evening, but that the Veteran felt better after the PT treatment. Later in January 2010, several PT notes state that the goal of functional ROM in lumbar spine with minimal discomfort had been met. A March 2017 VA Primary Care Clinic record notes that the Veteran had started having a flare up of his back pain six days earlier, while moving to a new house. The record reports that the Veteran stated he gets one or two back flare ups per year. The March 2017 record also reports that the Veteran had taken 30 hydrocodone pills in the last six months for back pain (which helped him function at work without being distracted by back pain), that he had no loss of bowel or bladder control, and that the pain radiated to his knee. The March 2017 record notes that the Veteran moved slowly and deliberately, was very careful when he picked up his jacket, and tried to keep his posture straight. None of these VA treatment records, however, or any other treatment record from the appellate period, provides an actual ROM measurement for the Veteran's forward flexion. The Veteran has been afforded four VA examinations for his lumbar spine disability during the appellate period. None of these VA examinations documented any form of ankylosis, and none found that the Veteran's forward flexion was 30 degrees or less, as required for a 40 percent disability rating. In August 2010, the Veteran was afforded a VA examination that diagnosed the Veteran with DJD lumbar spine L5, without evidence of any radiculopathy. The August 2010 VA examination found the Veteran had no ankylosis of the thoracolumbar spine and had forward flexion of 50 degrees, with objective evidence of pain. There was no additional limitation of ROM after three repetitions, but there was objective evidence of pain following repetitive motion. The Veteran reported that since December 2009, his back pain had been progressively worse, and that he had been taking hydrocodone four times a day. The Veteran reported fatigue, decreased motion, stiffness, weakness, and spine pain, but not spasm. In terms of work and daily activities, the Veteran reported difficulty with lifting and carrying, weakness or fatigue, pain, chores around the house such as carrying groceries or mowing the yard, and sitting at work. The VA examination did not note any bowel or bladder problems. The Veteran reported flare ups, saying they happened every two to three weeks, and were severe, lasting hours. During flare ups, he reported he could not twist and bend down as far as he usually could. The Veteran reported no incapacitating episodes of spine disease. In an April 2014 VA examination, the examiner reported that the Veteran had no ankylosis of the spine and had forward flexion of 65 degrees, with objective evidence of painful motion beginning at 60 degrees. The Veteran was able to perform repetitive use testing with three repetitions, after which forward flexion was 70 degrees. The examiner found that the Veteran did not have additional limitation in lumbar spine ROM after repetitive use testing. The VA examiner noted the Veteran reported that he stopped the motion of the DeLuca ROM examination due to pain. The examiner reported that the Veteran did have functional loss or impairment of the lumbar spine, namely less movement than normal and pain on movement. During the April 2014 VA examination, the Veteran reported taking one hydrocodone per day. The Veteran reported that, if he took the hydrocodone, he took it at 4:30 to 5:30 a.m.; the VA examination was done at 1:30 p.m. The VA examiner opined that the Veteran's pain medication had most likely had no effect on the Veteran's ROM and neurological testing during the VA examination, and provided an explanation, based on the half-life of the Veteran's low dose hydrocodone and the time he had taken it. In the April 2014 VA examination, the Veteran reported intermittent lumbar pain with mild radiation on the left side. In terms of work and daily activities, the Veteran reported that walking dogs, riding his stationary bicycle or taking out the garbage could irritate his back, and said that he felt he limped when he first started walking, but not once he got going. The VA examiner reported that the Veteran's gait was mildly delayed, but had no noticeable limp. The Veteran reported it was difficult to get down on the ground and that, two weeks earlier for his photography hobby, he had not been able to bend over to photograph a lower level of something. The examiner found that the Veteran's lumbar spine disability did have an impact on his ability to work, but noted the Veteran reported it didn't interfere with his work as long as he didn't have to lift things, and the Veteran noted it had been three months since he had had to lift anything heavy at work. The VA examiner stated that the Veteran had no other neurologic abnormalities or findings due to his lumbar spine condition, such as bowel or bladder problems. The Veteran did not have IVDS. The Veteran reported flare ups that impacted the function of his back. In a section for documenting the Veteran's description of the impact of flare ups, the VA examiner appears instead to have listed the activities that the Veteran said caused the flare ups, such as taking out the garbage, heavy lifting, repetitive bending, and riding the bicycle. The VA examiner concluded that pain and weakness were likely to occur when the spine was used repeatedly over time, and that flare ups could cause additional loss of motion, but said, in his opinion, the actual additional loss during flare ups could not be determined unless an examiner was present to objectively measure it. In August 2016, the Veteran was afforded another VA examination for his lumbar spine disability. The examiner found no ankylosis of the spine and forward flexion of 45 degrees. The examiner noted that, on the forward flexion ROM, the Veteran exhibited pain, and that pain caused functional loss. The examiner found evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions, with no additional loss of function or ROM after three repetitions. The VA examiner stated he was unable to say whether pain, weakness, fatigability, or incoordination could significantly limit functional ability when the joint was used repeatedly over a period of time, or degrees of ROM loss due to pain on use. In the August 2016 VA examination, the Veteran reported that his chronic low back pain remained very bothersome, with constant daily low back discomfort. He reported intermittent radicular pain down his left leg. The Veteran reported that, even on his better days, he had to be careful with bending and lifting, and every day had some discomfort with bending over to tie his shoes. The examiner found that the Veteran reported functional loss or impairment of the lumbar spine, with the Veteran reporting the example that he had trouble clipping his toenails. The VA examiner found that the Veteran did not have other neurologic abnormalities related to his thoracolumbar spine condition, such as bowel or bladder problems. The examiner found that the Veteran did have IVDS, but that he had not had any episodes that required prescribed bed rest and treatment within the last 12 months. For flare ups, the August 2016 VA examiner stated he was unable to provide information in terms of degrees of ROM loss during flare ups, because the Veteran was not experiencing a flare up at the time of the examination. Nevertheless, the VA examiner provided the best information available on the Veteran's lumbar spine disability flare ups. The VA examiner noted that, as per instructions, the Veteran was specifically asked to discuss how his ROM was limited during a flare up. The Veteran stated that it was limited, but could not quantify this as to exact degrees. The Veteran reported his back tended to flare up on average five to ten days per month, and he would take hydrocodone for pain relief. The Veteran reported that it could be pretty severe, and that he would have to mostly sit in a chair during flare ups and it limited his mobility, describing that he tended to be less active and move around less on those days due to the pain. He stated that on his flare up days he was slowed in even simple activities such as dressing, and he had trouble bending forward to tie his shoes on those days, and tried to avoid bending over and just slipped his feet into his shoes, and that slowed him down. The Veteran reported that he worked a desk job that started at 7:00 a.m., and he would wake up at 4:30 a.m. daily just in case he had a flare up, to allow extra time for dressing. The Veteran also indicated he had had PT in the past for a flare up of his lumbar spine disability, and the VA examiner quoted a December 2009 PT treatment record (the same December 2009 PT record cited in this decision, above) about the Veteran's ROM, which stated that lumbar flexion was "WNL" with pain. The VA examiner reported that the Veteran had stated during the August 2016 VA examination that he could bend and move to some degree even on bad flare up days. Having provided all the available evidence about the Veteran's condition during flare ups, the VA examiner stated that, beyond this, he could not determine exact degrees of increased limitation during flare ups without resorting to mere speculation. In September 2017, the Veteran was afforded another VA examination for his lumbar spine disability, which diagnosed him with lumbosacral strain, degenerative arthritis of the spine, and degenerative disc disease (DDD), and found left side radiculopathy. The VA examiner found no ankylosis of the spine and reported forward flexion of 55 degrees, with pain noted on the examination, which caused functional loss. The examiner found evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions, and had an additional loss of function or ROM after three repetitions, with a post-repetition forward flexion of 40 degrees, due to pain and lack of endurance. The Veteran reported functional loss or impairment of his thoracolumbar spine, with difficulty sitting, bending, walking, standing, or twisting. The VA examiner found that the Veteran's thoracolumbar spine condition had an impact on his ability to work, noting that the Veteran mentioned missing work about once per year due to his back. The examiner found no other neurologic abnormalities, such as bowel or bladder problems. The Veteran had IVDS, but it had not required prescribed bed rest or treatment by a physician in the last 12 months. In the September 2017 VA examination, the Veteran reported flare ups, which he said occurred about four times per week, due to sitting, bending, walking, standing or twisting. The VA examiner opined that pain and weakness could significantly limit functional ability during flare ups, or when the spine was used repeatedly over a period of time, and additional limitation due to pain, weakness, fatigability, and incoordination was feasible and likely to occur. The VA examiner stated, however, that it was not possible to determine actual degrees of additional ROM loss during flare ups due to pain, weakness, fatigability, or incoordination, without mere speculation, as an objective observer would need to be present during a flare up. In January 2018, the RO requested supplemental information from the September 2017 VA examiner, noting that the August 2017 Board remand had instructed that the VA examination must test for active and passive motion, in weight bearing and non-weight bearing, or the examiner must explain why that required testing was not possible, or was unnecessary. The September 2017 VA examiner explained that the September 2017 VA examination ROM results were for active motion, in weight bearing. He explained that it is not possible to perform passive ROM testing of the spine, in either weight bearing or non-weight bearing. He also noted that non-weight bearing ROM testing could not be performed, because it might be injurious. The Board finds that a rating in excess of 20 percent is not warranted at any point in the appellate period, because the available medical evidence of record does not show that the Veteran ever had forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. In addition, when determining the severity of musculoskeletal disabilities, VA must also consider the extent the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated due to the extent of pain or painful motion, limited or excess movement, weakness, incoordination, and premature or excess fatigability, particularly during times when symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. § 4.40, 4.45, 4.59. The Board has considered these additional factors, and finds that they do not warrant a higher rating level in this case. For example, although the Veteran does report flare ups, three of the four VA examinations during the appellate period found no additional limitation in ROM after repetition, and the fourth VA examination, in September 2017, found that although the Veteran's ROM was reduced after repetitive testing, it was still well above the 30 degrees forward flexion measurement required for a higher disability rating. In addition, none of the four VA examinations found that the Veteran's flare ups or other back symptoms, such as pain, limited or excess movement, weakness, incoordination, or excess fatigability, could result in favorable ankylosis of the entire thoracolumbar spine. Similarly, the recent guidance of the U.S. Court of Appeals for Veterans Claims that VA examiners should provide an opinion as to additional functional loss during flare ups of musculoskeletal disability, does not change the result here. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Although the August 2016 VA examiner stated that he could not provide exact degrees for the Veteran's increased limitation during a flare up, the examiner provided the best information available about the Veteran's condition during flare ups. This included noting that a December 2009 PT record after or during a flare reported that the Veteran's lumbar ROM for flexion was "WNL" with pain, and that the Veteran stated in the August 2016 VA examination that, even on bad flare days, he could bend and move to some degree, and that he had trouble bending forward to put on his shoes on flare days (but did not say he was incapable of bending over to put on his shoes). In addition, the Board notes that the Veteran reported in his August 2010 VA examination that his flare ups occurred every two to three weeks, in his August 2106 VA examination that they occurred five to ten times a month, and in his September 2017 VA examination that they occurred four times a week. However, in contrast, the Veteran is reported in a March 2017 VA Primary Care Clinic record for actual treatment to have stated that he has only one to two flare ups per year. Similarly, the September 2017 VA examination reported that the Veteran stated he missed work about once a year due to his back. In sum, the medical evidence as a whole does not provide an indication that, even during flare ups, the Veteran's ROM on forward flexion was 30 degrees or less. Consequently, further examination or opinion to obtain clinical estimates of motion loss in terms of degrees is unnecessary to decide the claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Under the General Rating Formula, objective neurologic abnormalities associated with the spinal disability are to be rated separately under the appropriate diagnostic code. The Board notes that the Veteran is separately service-connected for radiculopathy secondary to his service connected lumbar spine disability. Therefore, the Board will not address neurologic manifestations, as they are already being compensated. Duplicate compensation for the same symptoms is pyramiding, which is not permitted. 38 C.F.R. § 4.14 (2017). No additional neurological manifestations related to the Veteran's lumbar spine disability are noted within the medical evidence of record. Turning to DC 5243 (IVDS), the next highest possible disability rating under this alternate diagnostic code above the Veteran's existing 20 percent rating, would be 40 percent. Under DC 5243, a 40 percent disability rating requires that the condition had incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. There are no private or VA treatment records, or any VA examinations, documenting such incapacitating episodes during this time period. The Veteran has made statements regarding the severity of his lumbar spine disability. The Veteran is competent to report on factual matters of which he has first-hand knowledge, e.g., experiencing chronic back pain or painful flare ups. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, while the Board may consider the Veteran's subjective statements regarding the severity of the disability, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have, and these types of findings are not readily observable by a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Thus, the Board finds the objective medical findings and opinions provided by the experts at the Veteran's VA examinations and in other medical records are accorded the greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions . . . is, in the first instance, within the province of the adjudicators," i.e., the Board). In sum, the available medical evidence shows that the Veteran's lumbar spine disability did not meet the criteria for a rating in excess of 20 percent at any point during the appellate period and the claim for a higher rating is denied. ORDER Entitlement to service connection for tremors as secondary to treatment for service-connected bipolar disorder, is granted. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine, is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs