Citation Nr: 21062997 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 16-19 016A DATE: October 12, 2021 ORDER Entitlement to a rating in excess of 40 percent for a lumbar strain is denied. REMANDED Entitlement to a separate rating for service connection for radiculopathy of the bilateral lower extremities is remanded. FINDING OF FACT Throughout the entire period on appeal, the Veteran's lumbar strain manifested as forward flexion to less than 40 degrees, at worst in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without ankylosis, incapacitating episodes or associated bowel or bladder impairments. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 40 percent for a lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1973 to May 1993. This appeal comes before the Board of Veterans' Appeals (Board) on appeal of an August 19, 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. By way of background, the Veteran's lumbar strain was initially assigned a 20 percent initial rating effective August 17, 2020. Upon a Board decision issued April 13, 2020, the initial rating was increased to 40 percent throughout the period on appeal, but no higher and no earlier. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). A Joint Motion for Partial Remand (JMPR) maintained the increase to 40 percent, but vacated the denial of any higher rating and also vacated the denial of a separate entitlement to service connection for radiculopathy of the bilateral lower extremities. See Court JMPR (Jan. 22, 2021). Subsequent to the JMPR, the Board remanded the remaining claims on May 17, 2021, for development consistent with the JMPR to include the scheduling of an examination to determine the current severity of his service connected lumbar strain to include any manifestations of the disability such as radiculopathy. The Veteran then underwent an updated VA examination on July 11, 2021, and he was duly issued a Supplemental Statement of the Case (SSOC) on August 13, 2021. The Board therefore finds that there has been substantial compliance with its previous remand with regards to the issue decided herein. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that claims for entitlement to service connection for fatigue/shortness of breath and an acquired psychiatric disorder as well as entitlement to a total disability rating based on individual unemployability (TDIU) were remanded in August 2021 for additional development. That development appears to be in the process of being conducted by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these claims. 1. Entitlement to a rating in excess of 40 percent at for a lumbar strain is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 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, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's service-connected lumbar spine disability is currently evaluated as 40 percent disabling under Diagnostic Code 5237 since August 17, 2010. VA regulations provide that spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or, only if intervertebral disc syndrome applies, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, under Diagnostic Code 5243, whichever would result in a higher rating. 38 C.F.R. § 4.71a. The evidence of record confirms that the Veteran has never been diagnosed with intervertebral disc syndrome at any time on appeal. See, e.g.: VA Exams (July 11, 2021; Jan. 9, 2021; July 11, 2019; Aug. 2, 2016), at Question No. 11a. As a result, the Board determines that the Intervertebral Disc Syndrome Formula and Diagnostic Code 5243 do not apply. As Diagnostic Code 5237 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran's favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The General Rating Formula for Diseases and Injuries of the Spine, 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, provides the following: a 40 percent rating is assigned when there is either forward flexion of the thoracolumbar spine limited to 30 degrees or less, or else 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 assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). However, the diagnostic criteria for Diagnostic Code 5237 are unchanged under these revisions. Therefore, the February 2021 musculoskeletal criteria do not apply to the Veteran's claims on appeal; and the appropriate criteria is discussed below. The current spine rating criteria instructs the Board to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note (1). The current spine rating criteria provide specific values for range of motion of the cervical and thoracolumbar (thoracic and lumbar) spine. For the thoracolumbar spine, normal range of motion on forward flexion is zero to 90 degrees; backwards extension, zero to 30 degrees; lateral flexion, zero to 30 degrees; and, lateral rotation, zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See 38 C.F.R. § 4.71a, Note (2) (see also Plate V). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. The Veteran was most recently examined in July 2011. Not only has the Veteran never been diagnosed with IVDS, but his lumbar spine disorder has never manifested in ankylosis at any time during the appeal period either. See, e.g.: VA Exams (July 11, 2021; Jan. 9, 2021; July 11, 2019; Aug. 2, 2016), at Question No. 9a. These findings appear to preclude any entitlement to a rating in excess of 40 percent. Meanwhile, as no higher rating can be awarded merely upon a showing of reduced range of motion without ankylosis, the Veteran is not prejudiced by any failure to consider effects of flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board further concludes that even though there is no Correia statement in the July 2021 examination, see Correia v. McDonald, 28 Vet. App. 158 (2016), this requirement does not apply because there is no opposite joint to the back. Alternatively, given the circumstances of the Veteran's case, even if it was found that the above examinations did not fully comply with the holdings in Correia, DeLuca, or Mitchell, the Board finds that further development would not be necessary as the deficiency would not be prejudicial to the Veteran as he is in receipt of the highest rating based on limitation of range of motion. Simply stated, the Veteran is currently receiving the maximum rating based on limitation of motion of the spine, 38 C.F.R. § 4.71a, Diagnostic Code 5237. There is no diagnosis of IVDS; therefore, Diagnostic Code 5243 cannot be applied to this claim. See id. at Diagnostic Code 5243. Any higher rating than 40 percent would require findings of unfavorable ankylosis of the entire thoracolumbar spine (50 percent, Diagnostic Code 5237) or of the entire spine (100 percent, Diagnostic Code 5237). There is no prejudice in any failure of any previous examination during the period of review to conform to 38 C.F.R. § 4.59 as interpreted in Correia. After taking into account the clinical findings and the lay statements, the evidence does not suggest that motion is limited to the requisite degree for a rating higher than the currently assigned 40 percent rating at any point since August 17, 2010. Similarly, Sharp is not for application because notwithstanding the Veteran's denial of flare-ups, see VA Exam (July 11, 2021), at Question No. 2b, Sharp, supra pertains to the adequacy of examinations as they relate to range of motion findings but range of motion findings are not relevant here because they cannot result in a higher rating. Moreover, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); 38 C.F.R. §§ 4.40, 4.45, this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Veteran has credibly reported that he experiences chronic pain in his spine, that has become progressively worse over time. See VA Exam (July 11, 2021), at Question No. 2a. The Board does not doubt the credibility of the Veteran and does not question the veracity of those statements. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465 (1994). Ultimately, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274 (2010). In addition to considering the orthopedic manifestations of a lumbar strain, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. However, the Veteran has not alleged, and the evidence does not show, that he has bladder impairment or bowel impairment as a result of his service-connected lumbar strain. Moreover, the Board is remanded a claim for a separate rating for radiculopathy of the lower extremities for additional development. Therefore, the Board finds that, at no time during the appeal period, has the Veteran's lumbosacral strain resulted in bowel or bladder impairment warranting a separate rating. The Board has also considered whether further staged ratings under Hart v. Mansfield, supra, are appropriate for the Veteran's service-connected lumbar strain; however, the Board finds that his symptomatology referable to such disability has been stable throughout each period on appeal. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). For the foregoing reasons, the preponderance of the evidence is against a rating higher than 40 percent for a lumbar strain at any point during the appeal period. The appeal is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to a separate rating for service connection for radiculopathy of the bilateral lower extremities is remanded. By virtue of having his claim remanded, the Veteran is entitled to substantial compliance with all previous remand directives, see Stegall v. West, 11 Vet. App. 268, 271 (1998); meanwhile, as examinations were ordered by the last remand to determine if radiculopathy is diagnosed and, if so, attributable to service, see McLendon v. Nicholson, 20 Vet. App. 79 (2006), these examinations must be adequate, see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In the July 2021 VA examination, the Veteran's diagnosis of radiculopathy of the bilateral lower extremities was confirmed, see VA Exam (July 11, 2021), at Question No. 1b. The Board is unable to reconcile contradictory findings that the radiculopathy is "directly related to diagnosis of degenerative joint disease," see id. at Question No. 15e-f, or else "SEPARATE and UNRELATED to the service-connected diagnosis," see id. at Page 19, Question No. 17a (emphasis in original). In light of the contradictory findings in the examination, the Board cannot make a determination as to whether a separate rating for radiculopathy of the bilateral lower extremities is warranted. On remand, clarification is required. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, forward the claims file to the July 2021 VA examiner of record, or, if they are unavailable, to a similarly qualified VA examiner. The examiner is asked to review all pertinent records associated with the claims file, including the Veteran's medical treatment records, lay statements, and a copy of this Remand. Upon examination, the examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the appropriate rating criteria. It is specifically requested that the examiner conduct any tests or studies necessary to determine the existence of objective neurologic abnormalities associated with the Veteran's lumbar spine disability namely, radiculopathy. The need for further in-person examination is left to the discretion of the examiner. The examiner must provide an addendum opinion that specifically reconciles whether the diagnosed radiculopathy of the bilateral lower extremities is "directly related" or "separate and unrelated" to the Veteran's service-connected lumbar spine disorder. See VA Exam (July 11, 2021), at Questions Nos. 15 and 17. The examiner's attention is also directed to the medical treatment records documenting radiculopathy, as well as to the Veteran's lay statements reporting symptoms of radiculopathy (e.g., the "sharp pain" described by the Veteran in the July 2019 VA examination as radiating into his arms and legs). The Veteran is competent to report observable symptomatology. If there is any medical or evidentiary reason to doubt the lay statements of the Veteran, this should be clearly stated in the evaluation and supported by the evidence of record. A clear rationale for all opinions expressed would be helpful; and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.