Citation Nr: 20060387 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 14-18 567 DATE: September 14, 2020 ORDER 1. Entitlement to a 20 percent rating for the Veteran’s low back disability from the earlier effective date of September 22, 2016 is granted, subject to regulations governing payment of monetary awards; entitlement to ratings for the low back disability in excess of 10 percent prior to September 22, 2016 and in excess of 20 percent from that date is denied. REMANDED 2. Entitlement to service connection for diabetes mellitus is remanded. FINDINGS OF FACT 1. Prior to September 22, 2016, the Veteran’s low back disability was not shown to have been manifested by forward flexion limited to 60 degrees or less; combined range of motion limited to 120 degrees or less; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or incapacitating episodes of intervertebral disc disease; separately ratable neurological manifestations were not shown. 2. From (the earlier effective date of) September 22, 2016, the Veteran’s low back disability is reasonably shown to have been manifested by forward flexion limited to 60 degrees or less. 3. At no time since September 22, 2016 is the low back disability shown to have been manifested by forward flexion limited to 30 degrees or favorable ankylosis of the entire thoracolumbar spine; or incapacitating episodes of intervertebral disc disease; or additional separately ratable neurological manifestations. CONCLUSION OF LAW A 20 percent rating is warranted for the Veteran’s low back disability from the earlier effective date of September 22, 2016; ratings for the back disability in excess of 10 percent prior to September 22, 2016 and in excess of 20 percent from that date are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code (Code) 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from June 1988 to June 1998, from May 1999 to May 2000, and from September 2001 to August 2004, and had additional Reserve service. These matters are before the Board on appeal from a July 2011 rating decision. In October 2018, a Travel Board hearing was held before the undersigned; a transcript is in the record. In June 2019, the matters were remanded for additional development. Entitlement to a 20 percent rating for a back disability is granted from (the earlier effective date of) September 22, 2016; entitlement to ratings in excess of 10 percent prior to September 22, 2016, and in excess of 20 percent from that date are denied. On March 2011 VA examination, the Veteran reported having back pain and occasional numbness in his legs. He was not on any treatment at that time. On physical examination, his gait was normal and non-antalgic. He had normal heel walking, toe walking, and heel to toe walking. Neurological testing was normal. A spine examination was normal without tenderness, muscle spasm, or bony crepitus. Lumbar spine forward flexion was from 0 to 70 degrees, extension was from 0 to 30 degrees, bilateral lateral flexion was from 0 to 30 degrees, and bilateral lateral rotation was from 0 to 30 degrees, with pain at the end of range. He did not use ambulation aids, and had not been on medically prescribed bed rest in the previous 12 months. Based on this evidence, a July 2011 rating decision granted service connection for lumbar strain, rated 10 percent. On September 2011 treatment, the Veteran reported intermittent back spasms that had been somewhat severe over the previous several weeks. He had not taken any medication for the back pain and he declined physical therapy. The impression was lumbar spasm. On December 2011 treatment, he reported ongoing low back pain; he was referred to physical therapy for exercises to help with pain. On November 2012 treatment, he reported that his back felt fine, and inserts in his shoes helped with running. On April 2015 VA treatment, the Veteran was noted to have limited range of motion with chronic back pain since a 2005 injury on duty. An MRI showed a ruptured disc. He reported unpredictable flare-ups that last a few hours. He reported shooting pain through the left leg with numbness, and recently in the upper right thigh. He did not take medications with flares. On October 2015 treatment, the Veteran reported that he was in a motor vehicle accident the previous week when he lost control of his vehicle and it flipped over several times. He complained of low back pain going down on the right side. He denied having numbness or tingling down his legs. There was tenderness to palpation over the right paraspinal muscles in the lumbar area; there was no bruising, and straight-leg-raising was negative. Muscle strength of the lower extremities was fully intact. On February 2016 VA examination, the Veteran reported increasing low back pain described as sharp, aching, and constant with a severity of 7/10. He reported worsened pain with prolonged standing. He reported flare-ups of back pain with sitting or lying down. On physical examination, forward flexion was from 0 to 90 degrees, extension was from 0 to 20 degrees, right and left lateral flexion was from 0 to 30 degrees, and right and left lateral rotation was from 0 to 30 degrees. The range of motion itself did not contribute to a functional loss. Pain was noted on forward flexion but did not result in or cause functional loss. There was no evidence of pain with weight-bearing. There was tenderness to palpation of the bilateral low lumbar paraspinal muscles. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. There was no muscle spasm or guarding of the thoracolumbar spine. Localized tenderness did not result in abnormal gait or abnormal spinal contour. Muscle strength testing was 5/5 and there was no muscle atrophy. Deep tendon reflexes were normal. Sensation testing was normal. Straight leg raising was negative. There were no signs or symptoms due to radiculopathy. There was no ankylosis of the spine. There were no other neurologic abnormalities related to a back condition. The Veteran did not have thoracolumbar spine IVDS, and did not use any assistive devices. Lumbar spine X-rays showed degenerative changes and no fracture. The examiner opined that the Veteran’s back condition impacts his ability to work due to pain on prolonged standing. On September 22, 2016 initial chiropractic exam, the Veteran reported that he was in a motor vehicle accident in March 2016 that caused lower back pain. He reported frequent aching pain and stiffness in the right pelvis, left pelvis, and low back. He reported pain with ambulation. On physical examination, lumbar flexion was to 50 degrees, extension was within normal limits, left and right lateral flexion were to 20 degrees, and left and right lateral rotation were to 25 degrees, each limited by pain. Moderate tenderness was noted in the left and right lower back. At the October 2018 Board hearing, the Veteran testified that his back disability had progressively worsened since a February 2016 examination. He testified that he could barely bend over without having lower back pain, and his legs tingled and went numb at times due to his back pain. He testified that he received treatment from a non-VA chiropractor. On February 4, 2020 VA examination, the Veteran reported having numbness from the back to the upper thigh after standing for too long. He reported having pain getting out of bed in the morning, and he frequently sought treatment from a chiropractor. He was not taking any medications for his back. He reported flare-ups 3 to 4 times per week; the flare-ups were mild, lasted 10 to 15 minutes, and were precipitated by overexertion. He did not report having any functional loss or impairment of the thoracolumbar spine. On physical examination, forward flexion was from 0 to 60 degrees, extension was from 0 to 30 degrees, right lateral flexion was from 0 to 30 degrees, left lateral flexion was from 0 to 15 degrees, and right and left lateral rotation were each from 0 to 30 degrees. Pain was noted in all ranges of motion and caused functional loss. There was objective evidence of pain on passive range of motion testing. There was evidence of pain with weight bearing and on non-weight bearing. There was objective evidence of mild tenderness or pain on palpation of the lumbar spine. There was no additional loss of function or range of motion with repetitive use testing. On flare-ups and repeated use over time, functional ability was limited due to pain, but the range of motion was unchanged. There was no guarding or muscle spasm of the thoracolumbar spine. There were no additional factors contributing to disability. Muscle strength testing was 5/5. There was no muscle atrophy. Deep tendon reflexes were normal. Sensation testing was normal. Straight leg raising was negative. There were no signs or symptoms of radiculopathy. There was no ankylosis of the spine. There were no other neurologic abnormalities related to a back condition. The Veteran did not have thoracolumbar spine IVDS, and he did not use any assistive devices. The diagnosis of degenerative joint disease of the spine was a progression of the previous diagnosis of lumbosacral strain. The examiner opined that the Veteran has loss of motion and with bending, which may impair physical activity or occupational functioning related to bending. Based on this evidence, a June 2020 rating decision granted a 20 percent rating for the Veteran’s lumbar strain with degenerative arthritis of the spine, effective February 4, 2020, the date of the VA examination showing increased symptomatology. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability for the time period beginning one year before the claim was filed until VA makes a final decision on the claim. Id. When evaluating a service-connected disability based on limitation of motion, the Board must take into consideration functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see Johnson v. Brown, 9 Vet. App. 7 (1996). 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). Nonetheless, a rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’” as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The VA Rating Schedule provides for the following ratings for spine disabilities, with or 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. According to the General Rating Formula for Diseases and Injuries of the Spine (General Formula), the following ratings are to be assigned: [The ratings listed below apply to Codes 5235 through 5243 (unless a disability rated under Code 5243 is alternatively rated under the “Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes”).] Under the General Formula, a 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, with combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, with 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 warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.71a and note 1 following the General Formula. [If the service connected spine disability includes intervertebral disc syndrome (IVDS) it may alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Here, IVDS is not shown or alleged. 38 C.F.R. § 4.71a.] Additional VA treatment records throughout show symptoms largely similar to those found on the VA examinations described above. At the outset, the Board notes that neurological manifestations of the Veteran’s low back disability are not shown or alleged, and discussion of separate ratings for neurological manifestations is not necessary. Additionally, as incapacitating episodes of IVDS are not shown or alleged, consideration of a rating based on incapacitating episodes is not warranted. VA examination, treatment records, and lay statements, overall, do not show that, prior to September 22, 2016 symptoms of the Veteran’s back disability included forward flexion limited to 60 degrees or less; combined range of thoracolumbar motion limited to 120 degrees or less; 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 (the criteria for a 20 percent rating). On March 2011 and February 2016 VA examinations, there was no muscle spasm or guarding of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour, and forward flexion was to 70 degrees and 90 degrees, respectively. Consequently, a rating in excess of 10 percent under the General Formula was not warranted prior to September 22, 2016. On September 22, 2016 private treatment, forward flexion of the Veteran’s thoracolumbar spine was limited (by pain) to 50 degrees. While there was no examination to assess the disability just prior to, or soon after, the September 22, 2016 treatment visit, the next VA examination to assess the back, on February 4, 2020, found limitation of forward flexion to 60 degrees (which warrants a 20 percent rating), and a 20 percent rating was granted from the February 4, 2020 examination date. Resolving reasonable doubt in the Veteran’s, as required (see 38 C.F.R. § 4.3), the Board finds that the limitation of motion warranting a 20 percent rating is shown from September 22, 2016 date of private treatment, and that a 20 percent rating is warranted for the back disability from that (earlier) date. Reports of the VA examinations, treatment records, and lay statements, overall, do not show that symptoms of the Veteran’s low back disability have at any time since September 22, 2016 included forward flexion limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine (the criteria for a 40 percent rating). Ankylosis of the spine has never been shown, and is not alleged. The criteria for a rating in excess of 20 percent under the General Formula have not been met at any time, and a higher rating is not warranted. As the symptoms and associated impairment of function of the Veteran’s low back disability from September 22, 2016 fall squarely within the parameters of the criteria for the 20 percent rating assigned, and never meet (or approximate) the criteria for the next higher rating under the General Formula, an increased rating under the General Formula is clearly not warranted. REASONS FOR REMAND Entitlement to service connection for diabetes mellitus is remanded. In the previous [June 2019] remand, the Board noted that the Veteran’s diabetes mellitus was first diagnosed in January 2006, and that he testified he was on active duty at Lackland Air Force Base at that time and had been experiencing symptoms related to diabetes mellitus for about six months prior. The Board noted that only active duty Reserve service (to include ACDUTRA) is qualifying service to establish line of duty and entitlement to compensation for disease. The Board further noted that development in a claim of service connection based on ACDUTRA must include identification of the period/periods when the claimed disability is alleged to have been incurred or aggravated; verification of whether the claimed period was during a recognized period of active duty service; and development of evidence to establish whether the claimed disease is indeed related to disease or event shown during a verified period of active duty service. The Board noted based on a review of the record that such development, to include verifying whether the Veteran was indeed in the line of duty when diabetes mellitus was incurred, was lacking, and that the AOJ had not made efforts to verify the Veteran’s claimed service in 2005/2006, including whether or not he was in the line of duty on active duty or ACDUTRA during such period. The Board instructed that the AOJ should arrange for verification of each alleged period of service during which the Veteran claims his diabetes mellitus was incurred, i.e., whether or not he was serving in the line of duty at the time on active duty or ACDUTRA. The Board further instructed that the AOJ should make formal findings in a memorandum for the record as to whether not each alleged period was indeed a period of active duty in the line of duty (to include periods of ACDUTRA). In a June 2019 AOJ letter, the Veteran was asked to identify the period of service when he claims his diabetes mellitus was incurred, for service connection. He did not respond, and the AOJ apparently took no further action to comply with the Board’s remand instructions. Accordingly, the Board finds that the matter must be remanded once again. It is well-established in case law that when remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). The actions previously sought by the Board are necessary for a proper adjudication of the appellant’s claim. The matter is REMANDED for the following action: 1. The Veteran should be asked to identify the period of service when he claims the diabetes mellitus he seeks to have service connected was incurred; he should be advised that if he fails to respond, only those periods of active duty/ACDUTRA already shown to be verified by the current record will be considered qualifying service for the benefit sought. 2. The AOJ should arrange for verification of each period of such service reported (whether the Veteran was serving in line of duty on active duty or ACDUTRA). The AOJ should make a formal finding in a memorandum for the record whether each alleged period was indeed a period of active duty in line of duty (to include ACDUTRA). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechner, 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.