Citation Nr: 21070500 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 19-07 555 DATE: November 24, 2021 ORDER Entitlement to an initial increased rating of 40 percent, but no higher, from October 1, 2016, for lumbosacral strain is granted. FINDING OF FACT The evidence does not indicate, nor does the Veteran contend, that his lumbosacral strain manifested in ankylosis or the functional equivalent of ankylosis at any time throughout the appeal period; the evidence also does not indicate that the left lower extremity (LLE) neurological symptoms are etiologically related to the service-connected lumbosacral strain. CONCLUSION OF LAW The criteria for entitlement to an initial increased rating of 40 percent, but no higher, from October 1, 2016, for lumbosacral strain have been met. 38 U.S.C. §§ 1155, 5100, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.655, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Code (DC) 5237, General Rating Formula for Diseases and Injuries of the Spine (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from December 2006 to June 2015. This appeal originates from a March 2017 Rating Decision, in which the Agency of Original Jurisdiction (AOJ) granted service connection for lumbosacral strain at 10 percent effective October 1, 2016. In a January 2019 Rating Decision, the AOJ increased the lumbosacral strain rating from 10 percent to 40 percent effective January 15, 2019. In an August 2019 Decision, the Board, in pertinent part: denied entitlement to an initial increased rating above 10 percent prior to January 15, 2019, for lumbosacral strain; and also denied entitlement to an increased rating above 40 percent since January 15, 2019, for lumbosacral strain. In an April 2021 Memorandum Decision, the U.S. Court of Appeals for Veterans Claims (Court), in pertinent part, vacated and remanded the August 2019 Board Decision insofar as it denied entitlement to an initial increased rating above 10 percent prior to January 15, 2019, for lumbosacral strain; the Veteran did not challenge the Board's August 2019 denial of entitlement to an increased rating above 40 percent since January 15, 2019, for lumbosacral strain. 1. Entitlement to an initial increased rating above 10 percent prior to January 15, 2019, for lumbosacral strain Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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 evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Under the General Rating Formula for Disease and Injuries of the Spine, a 10 percent rating is warranted for: forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, DC 5237. A 20 percent rating is warranted 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. Id. A 40 percent 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 rating is warranted for: unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent (maximum schedular) rating is warranted for: unfavorable ankylosis of the entire spine. Id. Note (1) under the General Rating Formula for Disease and Injuries of the Spine also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. Normal back motion is flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to disabilities involving arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the Court in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. Furthermore, in Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012), the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. Additionally, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that, when possible, examiners must include range of motion testing on active and passive motion and in weight-bearing and non-weight-bearing conditions. Further, in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), the Court held that an examiner must attempt to elicit information regarding the severity, frequency, duration, and functional loss during flare-ups before determining that additional range of motion loss due to flare-ups cannot be estimated. The Veteran's lumbosacral strain is currently rated under DC 5237 at: 10 percent from October 1, 2016; and 40 percent since January 15, 2019. See January 2019 Codesheet; 38 C.F.R. § 4.71a, DC 5237, General Rating Formula for Diseases and Injuries of the Spine. The Veteran generally contends that, prior to January 15, 2019, he met the criteria for a higher rating for his lumbosacral strain. During the February 2017 VA back conditions examination, the Veteran reported pain that comes and goes and worsens when getting out of bed in the morning; although the examiner indicated that there were no flare-ups, the Board has interpreted the Veteran's reports of fluctuating pain severity as flare-ups. The examiner found, in pertinent part: initial forward flexion from 0 to 90 degrees with pain; no radiculopathy; no intervertebral disc syndrome (IVDS); and no ankylosis. The examiner did not estimate range of motion loss during flare-ups. In a February 2017 VA peripheral nerves conditions examination (afforded to the Veteran in connection with another claim), the examiner found pain and numbness of the left foot secondary to a shrapnel injury to the left foot; the examiner did not diagnose radiculopathy related to the lumbosacral strain. March 2017 records from East Orange VAMC documented: numbness, tingling, and pain in the LLE secondary to a left-foot shrapnel injury; continued back pain without radiculopathy, incontinence, or paresthesias; and continued physical therapy activities of jiu jitsu, yoga, and running about 6 miles per week. A November 2017 record from East Orange VAMC documented: the Veteran's reports of left lower back pain that had been sharp, shooting, and radiating to the flank, groin, and left hip for three days (at 9 out of 10 on the pain scale); the Veteran's denial of numbness, tingling, or weakness to the extremities; and the Veteran's reports of difficulty with daily activities (getting up, especially in the morning when he needs to stand, getting into the car, and driving). In a December 2017 Statement, the Veteran reported that: he starts feeling pain when he bends to approximately 30 degrees and has constant pain in his back otherwise; he has tried stretching and yoga, but nothing helps; and he has extreme pain. In the December 2017 Notice of Disagreement (NOD), the representative contended that a higher rating was warranted because of the Veteran's forward flexion being limited to between 10 and 60 degrees, as the Veteran described in his December 2017 Statement. During the January 2019 VA back conditions examination, the Veteran reported: pain that had progressively worsened over the past 12 months; pain that impedes his ability for basic functions like bending, squatting, and standing or sitting for long periods of time; flare-ups, including acute pain a year ago that required emergency room treatment and remaining in bed for two days, during which pain increases to 10 out of 10 on the pain scale and lasts for two to three days; and functional loss of less movement than normal and pain on bending, sitting, and standing for long periods of time. The Veteran denied bowel and bladder symptoms and lower extremity involvement. The examiner found, in pertinent part: initial forward flexion from 0 to 20 degrees with pain (with the Veteran reporting difficulty bending over to pick things up and sitting/standing for more than about 20 minutes at a time); no radiculopathy; no IVDS; and no ankylosis. The examiner indicated that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare-ups, but stated that he could not estimate additional range of motion loss during flare-ups without resorting to mere speculation because: there is no conceptual or empirical basis for making such a determination without directly observing function under those conditions; and, for this Veteran, there is no persistent evidence of record, considered to be valid or reproducible for rating purposes, that indicates a loss of function during these conditions. In the April 2021 Memorandum Decision, the Court found that the Board provided inadequate reasons or bases because, among other things, it did not account for potentially favorable evidence prior to January 15, 2019 (the Veteran's statements in the December 2017 NOD regarding pain when bending at around 30 degrees and the Veteran's statements during the January 2019 VA examination regarding worsening symptoms in the past year). Based on the evidence above, the Board finds that a 40 percent rating, but no higher, is warranted throughout the appeal period. The Board finds the February 2017 examiner's range of motion measurements to be inadequate insofar as they did not contemplate the Veteran's flare-ups, which have existed throughout the appeal period. Thus, the Board applies the range of motion measurements from the January 2019 VA examination retroactively to the entire appeal period because the examiner considered additional functional loss due to flare-ups, consistent with the holding in Sharp. Sharp; supra. Notably, although the January 2019 examiner did not specifically estimate range of motion loss during flare-ups, he indicated that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare-ups and estimated range of motion loss not during flare-ups at 0 to 20 degrees for initial forward flexion with pain; accordingly, because the Veteran described increased functional loss during flare-ups, it is clear that the range of motion during flare-ups would be even less than 0 to 20 degrees for forward flexion. Applying that flare-up functional loss to the entire appeal period warrants a 40 percent rating throughout (due to forward flexion of the thoracolumbar spine 30 degrees or less). However, higher ratings of 50 percent and 100 percent are not warranted because the evidence does not indicate, nor does the Veteran contend, that his lumbosacral strain manifested in ankylosis or the functional equivalent of ankylosis at any time throughout the appeal period (ankylosis is a required finding for those higher ratings). Lastly, the Board finds that associated neurological ratings are not warranted because the evidence also does not indicate that the LLE neurological symptoms are etiologically related to the service-connected lumbosacral strain; rather, as discussed above, they have been attributed to a left-foot shrapnel injury. Thus, the Board grants the increased rating claim to 40 percent, but no higher, from October 1, 2016. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, 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.