Citation Nr: 21002990 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 07-34 356 DATE: January 19, 2021 ORDER Entitlement to an initial disability rating of 40 percent, but not higher, for a low back strain is granted, with an effective date of May 30, 2007, subject to the laws and regulations governing the payment of VA monetary benefits. FINDING OF FACT The Veteran’s low back strain is characterized by flare-ups resulting in pain, stiffness, and further functional loss throughout the entire period remaining on appeal. CONCLUSION OF LAW The criteria for a disability rating of 40 percent for lumbosacral strain since May 30, 2007, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from October 1983 to July 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In December 2009, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This claim was before the Board in June 2012, December 2013, and August 2015, at which time the Board granted a 20 percent rating prior to May 30, 2007, but denied a rating in excess of 20 percent thereafter. The Veteran appealed the Board’s August 2015 decision to the United States Court of Appeals for Veterans Claims (Court). In May 2016, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the August 2015 Board decision to the extent it denied an initial higher rating in excess of 20 percent for a lower back strain and remanding the case to the Board for further action. In January 2017, the Board remanded the claim for further development, to include scheduling the Veteran for a new VA examination. This case was before the Board in April 2018 and most recently in September 2020. Again, it was remanded given the inadequacy of the October 2017 and April 2020 VA examinations. Regarding the October 2017 VA examination, the examiner was inconsistent with his determinations stating the Veteran experiences less movement than normal due to ankylosis but later stating she does not have ankylosis. Regarding the April 2020 VA examination, the Board again found the examiner did not substantially comply with the Board’s remand directives, noting the examiner indicated the Veteran reported daily flare-ups that are moderate to severe, and further limited motion. However, no opinion was provided as to the presence of flare-ups and their contribution to functional loss, if any, at the time of prior examinations in June 2005, May 2007, May 2008, December 2012, and October 2017. The Board found both examinations were not compliant with the Court’s decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) (for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups). As such, the case was remanded in order for the Veteran to be afforded an additional VA examination. The case is again before the Board for further appellate consideration. 1. Entitlement to an initial disability rating in excess of 20 percent for low back strain. In this post-remand case, the Veteran contends she is entitled to an increased rating in excess of 20 percent for her low back strain. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should 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. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). All service-connected spine disabilities are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the spinal disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based (IVDS) on Incapacitating Episodes (Incapacitating Episodes Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Under the General Rating Formula, a 20 percent disability rating is warranted when 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, when 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. 38 C.F.R. § 4.71a, General Rating Formula. A 30 percent disability rating is warranted when forward flexion of the cervical spine is 15 degrees or less; or favorable ankylosis of the entire cervical spine. Id. A 40 percent disability rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent evaluation is assigned if there is unfavorable ankylosis of the entire spine. Id. 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. 38 C.F.R. § 4.71a, General Rating Formula at Note (2). 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, and the normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. When rating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2017). 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. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). First, in a June 2005 VA examination, the Veteran’s gait was normal. X-rays were normal and she reported chiropractic therapy was helpful. Range of motion (ROM) revealed 90 degrees flexion with pain, 30 degrees extension, 30 degrees right and lateral flexion, and 45 degrees right and lateral rotation. The combined ROM was 240 degrees. She complained of major flare-ups that occurred every two months and lasted four days. She indicated she missed about 20 days of work due to low back pain. The impression was chronic low back strain with mild functional loss. In October 2006, the Veteran complained of reduced ROM, painful motion, tenderness, spasm, weakness, difficulty sitting/standing, and sometimes walking. In a March 2007 statement, she complained of an altered gait. During a May 2008 VA examination, the Veteran complained of pain in the lower back with spasms. Her disability was characterized by moderate effects on sports and shopping, but no effect on chores, traveling, and other daily activities. There was radiation manifested by intermittent “electrical shocks” down the left leg. Flare-ups were noted to occur two to three times per week. Range of motions measurements indicated 80 degrees flexion, 15 degrees extension, 30 degrees right and left lateral flexion, and 45 degrees right nad lateral rotation. The combined range of motion was 245 degrees. At an October 2009 VA examination, the Veteran presented with complaints of daily and constant low back pain. Sharp shooting pain to the pelvis, thoracic spine and legs. The examiner noted they did not follow a radicular dermatome. The Veteran used a TENs (transcutaneous electrical nerve stimulation) device almost daily to assist with back pain. She also wore a back brace three to four times a week when exercising or with severe pain. Range of motion measurements indicated 100 degrees flexion, 40 degrees extension, 50 degrees right lateral flexion, 45 degrees left lateral flexion, and 45 degrees right and left lateral rotation. Combined range of motion was 325 degrees. There was pain on motion with 80-100 degrees flexion and 35-40 degrees extension. No additional limitation in range of motion following repetitive use. X-rays of the lumbar spine indicated stable to mild levoscoliosis. There was no evidence of significant disk height loss or lumbar strain. However, the examiner noted the Veteran’s comorbid condition of fibromyalgia that contributed to her back disability. The examiner stated it was not possible to discern—without resorting to mere speculation—to what degree the lumbar spine condition contributed to chronic low back pain and to what degree her fibromyalgia als contributed. VA treatment records from June 2009 indicate a diagnosis of sciatica with radiation down both legs. VA treatment records from July 2010 note a complain of radicular symptoms, however, July 2012 Disability Benefits Questionnaire (DBQ) note no diagnosis of a peripheral nerve condition or neuropathy was diagnosed. At December 2012 VA examination, complaints of daily pain were reported by the Veteran. She also reported to start seeing an acupuncturist. She had flare-ups lasting three to four days. Her range of motion measurements revealed 90 degrees flexion, with pain; 25 degrees extension, with pain; 30 degrees right and left lateral rotation. The combined total range of motion was 235 degrees. There was no additional loss of motion after repetitive use. There was noted guarding or muscle spasm of the back, but it did not result in abnormal gait or spinal contour. The examiner diagnosed chronic low back strain with secondary degenerative disc disease. The examiner noted no evidence of radiculopathy or IVDS. This claim was previously before the Board in August 2015. As a result, the Board determined the Veteran was entitled to a disability rating of 20 percent for her low back strain for the entire period of the appeal, dating back to July 1, 2005. Additionally, a 10 percent rating was assigned for left lower radiculopathy. However, this decision was appealed to the Court in May 2016. The Court granted a JMPR vacating the August 2015 Board decision to the extent that it denied an initial higher rating in excess of 20 percent for a low back strain and remanding the case to the Board for further action. Specifically, the Court determined a remand was necessary to discuss the adequacy of the June 2005, May 2007, May 2008, and December 2012 VA examinations. The Court explained that the examiners noted the presence of flare-ups on those examinations but did not adequately discuss what functional loss, if any, was due to the flare-ups or what degree of any functional loss could be determined. Furthermore, the case was remanded in January 2017 and again in April 2018 due to the inadequacy of the October 2017 VA examination. The Veteran was afforded a VA examination in April 2020. The examiner indicated the Veteran reported daily flare-ups that are moderate to severe and limited her motion. The examiner confirmed the Veteran’s diagnosis of lumbosacral strain and degenerative arthritis of the spine. Per the Veteran’s reported history, she claims her condition began in 1994 after lifting and carrying heavy equipment while deployed. She experienced pain, depression, and neck pain and soreness. Her current symptoms include inflammation, spasms, aches, sciatica, nerve pain, and muscle pain. She reports daily flare-ups that are moderate to severe and are triggered by doing chores, lying down for too long, reaching, and “yard work.” The examiner measured the Veteran’s range of motion and found it to be “abnormal or outside of normal range.” The Veteran’s flexion is 0 to 65 degrees, extension is 0 to 30 degrees, right lateral flexion is 0 to 30 degrees, left lateral flexion is 0 to 30 degrees, right lateral rotation is 0 to 30 degrees, and left lateral rotation is 0 to 30 degrees. The examiner stated the range of motion itself does not contribute to a functional loss. No pain was noted on the examination. After three repetitions, there was no additional loss of function or range of motion. After repeated use over time there was no additional loss in range of motion. It was reported the examination was being conducted during a flare-up, however, no additional loss in range of motion was noted. During the flare-up, the Veteran’s flexion is 0 to 65 degrees, extension is 0 to 30 degrees, right lateral flexion is 0 to 30 degrees, left lateral flexion is 0 to 30 degrees, right lateral rotation is 0 to 30 degrees, and left lateral rotation is 0 to 30 degrees. There was no evidence of guarding or muscle spasms. No evidence of muscle atrophy, radicular pain, ankylosis, or other neurologic abnormalities. However, the examiner did not substantially comply the with remand instructions. More specifically, the examiner failed to provide an opinion regarding flare-ups and further limitation of motion from examinations stemming from June 2005, May 2007, May 2008, December 2012, and October 2017. As such, the Board in its September 2020 decision remanded the issue in order to obtain an addendum opinion. The Board requested an opinion regarding the June 2005, May 2007, May 2008, December 2012, October 2017, and April 2020 VA examination reports and whether there would be any additional functional loss due to the Veteran’s reported flare-ups at the time of those examinations and an estimate of the degree of additional range of motion loss due to pain on use or during flare-ups. Furthermore, the examiner was asked to provide an opinion as to whether the Veteran’s current daily flare-ups significantly limit her functional ability. An addendum opinion was obtained in October 2020. The examiner stated the claimant could not reliably determine and demonstrate range of motion (ROM) loss during a flare-up or after repetitive use. The examiner further stated the medical records did not sufficiently identify previous ROM during flare-ups or after repetitive use. Furthermore, general medical knowledge of the Veteran’s joint condition is insufficient to reasonable estimate ROM for each plane of motion as there is great variability between patients with similar conditions. The Board finds this opinion to be of little probative value. The examiner is unable to provide an opinion without resorting to speculation and was not in substantial compliance with the Board’s remand directives. On the other hand, there is private medical evidence submitted by the Veteran from 2008 to 2014 documenting her chronic low back pain. In a June 2014 note, it specifically notes the Veteran “had a bad flare up yesterday.” In another June 2014 note it states the Veteran presented to physical therapy “very sore.” Furthermore, her May 2007, May 2008, December 2012, October 2017, and April 2020 VA examinations all indicate she experiences flare-ups. In her December 2012 VA examination, flare-ups last three to four days resulting in muscle spasms, stiffness, and more severe pain. During her October 2017 VA examination, flare-ups were noted to occur two to three times per month causing her to have to stay in bed. In her April 2020 VA examination, it is noted that her flare-ups are caused by “doing everyday household chores” and are moderate to severe in severity. Therefore, under DeLuca, and affording the Veteran the benefit of the doubt, given the long-standing evidence of complaints of flare-ups and subsequent evidence of functional loss, the Board finds an increased rating to 40 percent for low back strain warranted for the entire period remaining on appeal. 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (VA may consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria). Although the Veteran’s medical records and VA examinations and medical opinions do not specify to what degree of additional functional loss her flare-ups result in, medical evidence indicates she frequently and continually experienced flares of additional pain, spasms, stiffness, loss of work, and soreness, which would sometime cause her to be bedridden. As such, a 40 percent disability rating, under DeLuca, is warranted. As there is no evidence of spine ankylosis and the 40 percent disability rating is the highest schedular rating allowed for limitation of lumbar range of motion and pain, further consideration of the Veteran’s flares and loss of functional use for an even higher rating is not warranted. Spencer v. West, 13 Vet. App. 376 (2000); Johnston v. Brown, 10 Vet. App. 80 (1997); and 38 C.F.R. §§ 4.40, 4.45. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. DeBoer, 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.