Citation Nr: 20021206 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 06-07 135A DATE: March 24, 2020 ORDER From January 1, 2006, to August 29, 2006, and beginning October 1, 2006, entitlement to a 40 percent disability rating for service-connected lumbar degenerative disc disease (hereafter referred to as a "low back disability") is granted. FINDING OF FACT From January 1, 2006, to August 29, 2006, and beginning October 1, 2006, and affording all reasonable doubt to the Veteran, his service-connected low back disability more closely approximates limitation of forward flexion of the thoracolumbar spine to 30 degrees or less. CONCLUSION OF LAW From January 1, 2006, to August 29, 2006, and beginning October 1, 2006, and affording all reasonable doubt to the Veteran, the criteria for entitlement to a 40 percent disability rating for service-connected low back disability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5235–5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1986 to November 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran originally was awarded service connection by a July 1993 rating decision, which granted him a noncompensable rating. The Veteran then was granted a 20 percent rating effective November 13, 2003, a temporary total rating effective August 13, 2004, a 20 percent rating effective February 1, 2005, and a temporary total from September 22, 2005, to December 31, 2005. Since January 1, 2006, to August 25, 2008, the Veteran has been in receipt of 20 percent rating, excluding one period of a temporary total from August 30, 2006, to September 30, 2006. This increased rating appeal has been the subject of multiple Board remands (September 2012, November 2013, and June 2014). A December 2015 Board decision denying this claim was appealed to the United States Court of Appeals for Veterans Claims (Court). The Court issued a June 2017 Memorandum Decision, which vacated just that portion of the decision. There, the Court held that the Board provided inadequate reasons and bases for relying on a June 2007 VA examination. Specifically, the Court faulted the Board for misstating the findings of the VA examiner and noted that the examination itself was incomplete because of the amount of pain the Veteran was experiencing during the examination. Furthermore, the Court noted that the examiner did not provide any information about functional loss or additional limitation of motion of the lumbar spine as a result of flare-ups or on repetitive motion testing. The Court further cautioned the Board that, if the medical evidence of record was insufficient, it should consider getting a retrospective medical opinion for the period on appeal. In its most recent July 2018 decision, the Board again denied this increased rating claim. The Veteran again elected to appeal that determination to the Court. The Veteran and the Office of the General Counsel for VA (collectively referred to as “the Parties”) resolved that appeal by way of a Joint Motion for Partial Remand (JMPR). In pertinent part, the JMPR states as follows: The Board notes that the July 2007 VA examiner recorded “significant pain” during ROM testing, forward flexion to 58 degrees with pain markedly increasing at 50 degrees and “quite severe” at 58 degrees, and that the veteran and examiner “agreed that repetitive testing need not be performed.” The Board concluded that this did not demonstrate “de facto ankylosis,” and “did not indicate objective evidence of forward flexion to less than 30 degrees.” The Board stated that it “finds that the Veteran’s functional loss did not meet the requirements for a 40 percent disability rating during this stage” and that “Mitchell, DeLuca, and §§ 4.40 and 4.45 do not require the assignment of a higher schedular disability rating 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.” The Board did not explain this conclusion, however, despite being directed to provide a more adequate statement of reasons or bases on this very topic by the Court’s October 2017 Memorandum Decision on reconsideration. The Parties also agreed that the Board failed to consider the possible need for a retrospective medical opinion as required by the Court’s previous decision. Upon remand, the Board will afford all reasonable doubt to the Veteran and assign him a 40 percent disability rating for the entire period on appeal. As noted, the Veteran exhibited forward flexion to 58 degrees with pain markedly increasing at 50 degrees and “quite severe” at 58 degrees. This statement, in conjunction with the fact that the examiner failed to conduct repetitive use testing, prohibits the Board from evaluating whether the Veteran would have exhibited a limitation of forward flexion to at least 30 degrees. Furthermore, the Board finds that any possible retrospective opinion would be of little probative value. Thus, affording all reasonable doubt to the Veteran, the Board finds that his low back disability more closely approximates limitation of forward flexion to 30 degrees, and his appeal on this issue is granted. See 38 C.F.R. § 4.71a, DCs 5235–5243. Because there is no evidence of record to verify any form ankylosis of the Veteran’s spine, a rating in excess of 40 percent for any period is not warranted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.