Citation Nr: 20023033 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 13-18 665 DATE: April 2, 2020 ORDER Entitlement to a 10 percent rating, but no higher, is warranted throughout the entire appeal period for a lumbar spine disability. REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. FINDING OF FACT During the entire period on appeal, , the Veteran’s lumbar spine disability has manifested in localized tenderness, pain and stiffness with movement. CONCLUSION OF LAW The criteria for a 10 percent rating, but no higher, for a lumbar spine disability have been met throughout the entire appeal period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1997 to June 2007. Previously the case was before the Board in July 2017 and September 2019. The claims were most recently remanded for additional development and supplemental VA examinations. A VA examination as to the Veteran’s low back disability has been associated with the claims file. As discussed below, the Board’s remand directives for the Veteran’s claims for a right and left ankle disability have not been substantially complied with, and additional development is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an increased rating for a lumbar spine disability Disability ratings are determined by the application of VA’s Schedule for Rating 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 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The Veteran’s lumbar spine disability has been assigned a noncompensable rating as of November 23, 2009, and a 10 percent rating as of January 24, 2011, under DC 5237 for thoracolumbar strain. DC 5237 falls under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243. Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The General Rating Formula for Diseases and Injuries of the Spine provides that a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the cervical spine greater than 120 degrees, but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour. A 20 percent rating is assigned for 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 assigned for forward flexion of the thoracolumbar spine of 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is awarded for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Notes (2), (4). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The criteria are applied with and without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate DC. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The present claim for an increased rating arises from service connection for a lumbar spine disability that was originally granted in a May 2011 rating decision. In a November 2018 rating decision, the RO increased the rating to 10 percent, effective January 24, 2011, or the date of the VA examination showing compensable symptoms. The Veteran contends that the ratings for the lumbar spine disability do not adequately compensate the severity of his low back disability. At the January 2011 VA examination, the Veteran reported a dull, aching pain in the mid-lumbar area one to six days a week. The Veteran stated that he avoided lifting and carrying as much as possible, as those activities often triggered more intense pain. The Veteran reported that the back pain was getting progressively worse. The examiner noted history of fatigue, stiffness and pain in the back. The pain was described as mild, lasting hours. On examination, forward flexion was to 90 degrees, extension was to 30 degrees, left and right lateral flexion was to 30 degrees, and left and right lateral rotation was to 30 degrees. There was no objective evidence of pain on active range of motion. There was no additional limitation of range of motion after three repetitions. Muscle strength and deep tendon reflexes were all normal. There was no evidence of muscle atrophy or ankylosis. X-rays performed showed the normal radiographical appearance of the lumbar spine. At a January 2018 VA examination, the Veteran reported more frequent symptoms of soreness in the lower back since the prior VA examination. The Veteran stated that he experienced pain with moderate to strenuous activities, which required him to stop or limit those activities. The Veteran became sore with bending, lifting, and sitting. Flare-ups occurred once or twice a month, triggered by exercises, and lasted about two days. On examination, forward flexion was to 90 degrees, extension was to 30 degrees, left and right lateral flexion was to 30 degrees and left and right lateral rotation was to 30 degrees. There was pain noted on examination, but the pain did not result in or cause functional loss. There was no evidence of pain with weightbearing. The examiner noted mild tenderness to palpation of the upper lumbar spine. The Veteran was able to perform repetitive testing with no additional loss of range of motion or function. There was no guarding or muscle spasm, muscle atrophy or ankylosis present. Muscle strength testing and deep tendon reflexes were normal. X-rays were negative and found no arthritis. The examiner found no functional impact of the lumbar spine condition, noting that the Veteran had no difficulty getting up from a chair, on or off the examination table, or lying in the supine position and rising. At a December 2018 VA examination, the Veteran reported that his back tightened up causing pain. He stated he had difficulty with bending, lifting and sitting. The pain radiated from the back to the tailbone. The Veteran reported flare-ups, described as aches and soreness, once or twice a week, lasting one to two days. The Veteran was limited in prolonged standing and bending. On examination, flexion was to 90 degrees, extension was to 30 degrees, left and right lateral flexion was to 30 degrees and left and right lateral rotation was to 30 degrees. There was pain noted on examination, but it did not result in functional loss. There was no evidence of pain on weightbearing. The examiner noted mild localized tenderness and/or pain on palpation at the lumbar region. The Veteran was able to perform repetitive testing with no additional loss of function or range of motion. There was no guarding or muscle spasm, muscle atrophy or ankylosis present. Muscle strength testing and deep tendon reflexes were normal. X-rays found no arthritis and were negative other than slight retrolisthesis at the L5-S1. The examiner found no functional impact of the lumbar spine condition. At a December 2019 VA examination, the Veteran reported back pain with the lower back giving out sometimes during flare-ups. The Veteran stated that he experienced increased pain with lifting or moving things. On examination, flexion was to 80 degrees, extension was to 20 degrees, left and right lateral flexion was to 20 degrees and left and right lateral rotation was to 20 degrees. Passive range of motion was the same as active range of motion. Range of motion itself did not contribute to a functional loss. Pain was noted on active range of motion, but it did not result in functional loss. There was evidence of pain with weightbearing, but no pain with non-weightbearing. The examiner noted no localized tenderness or pain on palpation. The Veteran was able to perform repetitive testing with no additional loss of function or range of motion. During flare-ups and after repetitive use over time, the examiner found that pain and fatigue caused functional loss but no additional loss of range of motion. There was no guarding or muscle spasm, muscle atrophy or ankylosis present. Muscle strength testing and deep tendon reflexes were normal. The examiner found no functional impact of the lumbar spine condition. In correspondence dated in May 2011, the Veteran stated that his back was regularly sore and that he could not sit at a desk or perform physical activity without his lower back becoming painful and sore. This forced him to take time off of work or lay flat to relieve the pain. He estimated that he lost from work or activities as a result of the back condition. In a June 2013 statement, the Veteran contended that a 10 percent rating was warranted for painful motion. VA treatment records occasionally note complaints of back pain, but are otherwise absent findings regarding range of motion or other functional loss due to the Veteran’s lumbar spine disability. The Board finds that, resolving all reasonable doubt in favor of the Veteran, the evidence shows that symptoms existing at the January 2011 VA examination, on which the RO granted a 10 percent rating, were present from the beginning of the appeal period. Therefore, a 10 percent rating is warranted as of November 23, 2009, or the claim date. However, the Board finds that the preponderance of the evidence is against a rating higher than 10 percent for the Veteran’s lumbar spine disability, during the entire period on appeal. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to increased pain from physical activity. However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by these statements do not result in limitation of motion more nearly approximating 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. All examiners noting pain on examination found that the pain did not cause additional loss of range of motion or functional loss. At worst, the Veteran’s forward flexion was to 80 degrees. The majority of the evidence indicates that forward flexion was consistently to 90 degrees. The December 2019 VA examiner specifically addressed flare-ups and repetitive use after a period of time and found that while there was pain and fatigue causing functional loss, there was no further range of motion lost during those scenarios. The Board finds that the 10 percent rating adequately compensates the Veteran’s symptoms, as no additional loss of range of motion is shown. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. There was also no evidence of any separate compensable symptoms related to the Veteran’s lumbar spine disability, including radiculopathy or neurologic symptoms. Further, functional impairment due to pain on motion does not result in additional functional loss with pain on motion during repetitive use. does not warrant an increased rating. As such, the Board finds that a higher rating is not warranted on this basis. Consideration has also been given to assigning a rating for IVDS based on incapacitating episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. 38 C.F.R. § 4.71a. Accordingly, the Board finds that a 10 percent rating is warranted during the entire appeal period for the Veteran’s lumbar spine disability. However, the Board finds that preponderance of the evidence is against a finding that the lumbar spine disability warrants a rating higher than 10 percent at any point during the appeal period. REASONS FOR REMAND 1. Service connection for a right ankle disability 2. Service connection for a left ankle disability The Veteran contends that service connection is warranted for his current right and left ankle disabilities. These matters were previously before the Board in September 2019, at which time the claims were remanded for additional development. Specifically, the regional office (RO) was directed to attempt to obtain service treatment records from 2000 through June 2007. The RO was directed to contact appropriate locations to obtain the missing records, and that if the records could not be located, to make a formal finding of unavailability to be included in the claims file. The claims file includes a web screenshot showing a negative search result, indicating that “[t]he requested file was not found during the RMC Extraction.” Correspondence from the RO to the Veteran dated in November 2019 notified the Veteran that records could not be located and therefore were unavailable for review. Although the RO indicated in the correspondence that all efforts to obtain the needed information had been exhausted, those efforts were not described, nor was any formal finding of unavailability added to the claims file. The Board finds that these actions do not constitute substantial compliance with previous Board remand instructions. See Stegall, 11 Vet. App. at 271; Barr, 21 Vet. App. at 307. Therefore, a remand is necessary to make attempts to locate the Veteran’s service treatment records and to provide a formal finding of unavailability if multiple attempts are negative. The matters are REMANDED for the following action: 1. Contact the appropriate locations (e.g., National Personnel Records Center (NPRC), the Records Management Center (RMC), etc.), to request the Veteran’s complete service treatment records, through June 2007. The RO should make multiple attempts to locate these records. If complete records cannot be located or are otherwise unavailable, the Veteran should be notified. In addition, a Formal Finding of Unavailability delineating what attempts were made must be included in the claims file. 2. Then only if warranted based on the development above, the Veteran should be afforded a supplemental VA opinion as to the nature and etiology of any current right and left ankle disability. The examiner must opine whether: (a.) Identify all current right and left ankle disabilities. (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s right and left ankle disability is caused by service, to include in-service parachute jumps? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Attention is invited to the Veteran’s and associated lay statements note ankle popping, painful snapping and cracking that began in-service in 2005 and has continued since. In addition, service treatment records note a September 1999 right ankle injury. K. R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Ahmad 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.