Citation Nr: 21066281 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 14-20 144 DATE: October 29, 2021 REMANDED Entitlement to a compensable disability rating prior to November 26, 2019 and in excess of 10 percent, thereafter, for a low back strain (low back disability), is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1990 to December 1991. This matter comes before the Board of Veteran's Appeals (Board) from a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in July 2019 when the claim was remanded for development. The Board finds the July 2019 remand directives have been substantially complied with, to the extent that an examination was afforded to the Veteran, and the matter is again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). During the pendency of the appeal, the Veteran's back disability rating was increased from noncompensable to 10 percent, effective November 26, 2019. As this rating is less than the maximum available rating and does not cover the entire period on appeal, the claim for increase remains on appellate status and is again before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Entitlement to a compensable disability rating prior to November 26, 2019 and in excess of 10 percent, thereafter, for a low back strain is remanded. As a threshold matter, the Board acknowledges that the Veteran's back disability presents with a particular set of circumstances, as the Veteran experienced a post-service spinal cord injury that resulted in the loss of use of his lower extremities (paraplegia). The Veteran's spinal cord injury is a separate disability from his service-connected low back strain- for which he seeks an increased disability rating. In July 2019, the Board remanded the present matter for development. The Board requested in its remand directives for the Veteran to be afforded a new examination regarding his service-connected low back disability. The examination was necessary to ascertain the current severity of the disability, as the Veteran's most recent VA examination of record dated back to the year 2010. See July 2019 Board remand. Pursuant to the Board's remand directives, the Veteran was afforded a Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (Back DBQ) in November 2019. This Back DBQ was completed based on the in-person examination results and the examiner noted having reviewed the evidence available in the VA e-folder. A diagnosis of lumbosacral strain was noted. As to the course of the condition since its onset, the examiner noted the Veteran's report that the condition had progressed as he has developed pain, soreness, spasms, stiffness, and tightness. The Veteran noted taking prescribed pain medication as needed for his pain, that he required the use of a tens unit, and his report that the pain is constant and worse while in a sitting and/or in a lying down position. Despite the Veteran's report of worsening pain while sitting and when in a lying down position, the examiner determined that the Veteran did not report flare-ups of his condition and did not elicit further information on the matter or provide estimated range of motion measurements. Additionally, the examiner determined that range of motion testing could not be performed because the Veteran is paralyzed from the waist down, wheelchair bound, and is unable to perform the range of motion exercises required. In the remarks section, the examiner noted that the Veteran uses a catheter for urinary voiding, and this is directly related to the Veteran's paralysis (spinal cord injury) and not his lower back strain. The examiner also noted that the examination was limited due to the Veteran's paralysis and that there were no other clinical findings noted on the exam to suggest another back condition related to his military service, apart from the service-connected low back strain. As to diagnostic testing, the examiner noted imaging studies had been performed and did not show arthritis. However, the x-rays referenced are dated August 1991, May 2006, and September 2010. See Back DBQ of November 2019. For the reasons explained below, the Board finds this examination inadequate for adjudication purposes. In October 2021, an Appellate Brief by the Veteran's representative was associated with the claims file. The Veteran's representative in essence asserts that the November 2019 Back DBQ is inadequate for adjudication purposes because no diagnostic testing was accomplished contemporaneous to the examination. The representative cited the applicable diagnostic code and noted that x-ray evidence or an MRI would have provided the examiner updated evidence pertaining to the current level of disability and would have aided the examiner in determining whether the Veteran's back disability presents with an abnormal spinal contour, such as scoliosis, reverse lordosis, or abnormal kyphosis. See Appellate Brief of October 2021. The Board agrees that updated x-rays in the present appeal were warranted, given the specific facts of this case, and will remand the matter for development. Additionally, the Board observes that it is not clear from the Back DBQ of November 2019 whether the Veteran's low back strain presents with symptomatology separate and distinct from his non-service-connected spinal cord injury. In other words, it is unclear if any functional impairment the Veteran suffers as a result of his service-connected low back strain, can be differentiated from his non-service-connected spinal cord injury. Notably, the examiner that completed the November 2019 Back DBQ determined that the Veteran was unable to complete range of motion testing because he was wheelchair bound. However, it is unclear from the examination report whether the Veteran's inability to perform range of motion testing is solely due to his spinal cord injury and/or due to his low back strain. Thus, the Board finds that upon remand the examiner must opine whether it is possible to differentiate between the symptoms and/or functional impairment associated with the Veteran's service-connected low back strain, and the symptoms and/or functional impairment associated with his non-service-connected spinal cord injury. If the examiner can differentiate between the conditions, the examiner must note the findings upon which such conclusion is based and must clearly identify the limitations or symptoms attributed to the service-connected low back strain and the limitations or symptoms attributed to the spinal cord injury. If such differentiation is not possible, the examiner must note so, and the examiner is asked to note all back related limitations and/or symptoms when completing the Back DBQ, to include whether the noted finding can or cannot be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998) (holding that when a claimant has both service-connected and nonservice-connected disabilities, the Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability); see also 38 C.F.R. § 3.102. Furthermore, as the Veteran's representative asserts in the Appellate Brief, the Veteran's back disability is evaluated pursuant to diagnostic code 5237 and the General Rating Formula for Diseases and Injuries of the Spine (rating formula). See Appellate Brief of October 2021. Under the rating formula, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, warrant a 20 percent disability rating. Additionally, ankylosis of the spine warrants higher ratings. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. Thus, in addition to range of motion measurements, findings pertinent to muscle spasms, guarding, abnormal spinal contour, fractures of the vertebral body and/or ankylosis, are pertinent, in order to apply the rating formula to the Veteran's service-connected disability. Moreover, the Board acknowledges that the rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. See Chavis v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). Here, the Back DBQ of 2019 is based upon imaging studies that are too remote to provide the Board with an accurate disability picture of the Veteran's low back disability, in view of the specific facts of this case and the Veteran's competent lay assertions regarding worsening pain and other symptomatology such as spasms. Accordingly, upon remand, diagnostic testing should be completed, to include imaging studies such as x-rays, to determine the current severity of the Veteran's low back disability and whether the disability presents with an abnormal spinal contour or other pertinent findings, to include whether the Veteran's service-connected low back disability results in ankylosis of the spine or the functional equivalent of ankylosis. Chavis, supra. Additionally, the Board observes that at the hearing the Veteran reported flares of his condition. To the extent possible, the examiner must elicit information from the Veteran regarding the flares he experiences, their frequency, duration, and severity, as well as any additional functional limitation the Veteran may experience during such a flare, as related to his service-connected low back disability. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Finally, the Board acknowledges that the Veteran's low back disability picture is complicated by his non-service-connected spinal cord disability. Thus, in view of the particular facts of this case, the Board finds that the examination must be completed by an examiner that specializes in spinal cord disabilities, nervous disorders, and/or orthopedic disabilities. The matter is REMANDED for the following actions: 1. Update existing VA medical records. 2. Schedule the Veteran for an examination pertaining to his service-connected low back disability. As the Veteran's back disability presents with particular complications, the examination must be completed by an examiner that specializes in spinal cord disabilities, nervous disorders, and/or orthopedic disabilities. Diagnostic testing must be accomplished, to include imaging studies such as an x-ray of the spine, and/or any other diagnostic testing deemed necessary by the examiner. a. The examiner is asked to opine whether it is possible to differentiate between the symptoms and/or functional impairment associated with the Veteran's service-connected low back strain, and the symptoms and/or functional impairment associated with his non-service-connected spinal cord injury. i. If the examiner can differentiate between the conditions, the examiner must explain the findings upon which such conclusion is based and must clearly identify the limitations or symptoms attributed to the service-connected low back strain and the limitations or symptoms attributed to the spinal cord injury. ii. If such differentiation is not possible, the examiner must note so, and the examiner is asked to note in the Back DBQ report all back related findings, limitations and/or symptoms; including those that cannot be differentiated or clearly attributed to either disability. b. If range of motion testing for the Veteran's low back strain cannot be performed, the examiner is asked to explain why that is, whether the inability to perform the tests is solely due to the Veteran's low back strain and/or his spinal cord disability, whether there are any alternative sources of information that would aid the examiner in providing range of motion measurements and/or whether any deviation from the best practice pertaining to range of motion testing of the spine (i.e. measurements as observed while the Veteran is sitting down on his wheelchair as opposed to standing) would result in an accurate representation of the Veteran's functional ability as it pertains to his service-connected lumbar disability. i. If range of motion testing cannot be performed as a result of the severity of the functional impairment the Veteran experiences, the examiner must opine whether such functional impairment is due to ankylosis or the functional equivalent of ankylosis, and whether such impairment is due to the Veteran's service-connected low back disability, his spinal cord injury or whether it cannot be differentiated. c. To the extent possible, the examiner must elicit information from the Veteran regarding the flares he experiences, their frequency, duration, and severity, precipitating and alleviating factors and the extent of functional impairment, as well as any additional functional limitation the Veteran experiences during such a flare, as it relates to his lumbar spine disability or that cannot be clearly attributed to his spinal cord injury. The Board recognizes the difficulty of making such an estimate pertaining to the Veteran's flares but emphasizes that such is required and would appreciate an estimate on the part of the examiner with the understanding that such is not a definitive conclusion but merely an approximation based on the available evidence. The fact that some speculation is required is understood and should not preclude the examiner from providing the requested estimate. If the examiner is nevertheless unable to estimate the functional loss in terms of degrees after physical examination and eliciting the pertinent information about the flare-ups, he or she must explain why, beyond the fact that such would require speculation. 3. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.