Citation Nr: 21073252 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 14-29 980 DATE: December 8, 2021 ORDER Entitlement to an earlier effective date of February 25, 2009 for the 20 percent rating assigned for lumbosacral strain is granted. Entitlement to a rating in excess of 20 percent for lumbosacral strain is denied. FINDINGS OF FACT 1. The Veteran's combined range of motion of the thoracolumbar spine has at least as likely as not been limited to 120 degrees or less since the effective date of service connection for lumbosacral strain when considering the effects of flare-ups of the disability. 2. The preponderance of evidence is against a finding that the Veteran has had forward flexion limited to 30 degrees or less or a higher level of impairment, to include ankylosis of the thoracolumbar spine, at any point in the appeal period, with no evidence of intervertebral disc syndrome or neurological abnormalities in the Veteran's case. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of February 25, 2009 for the 20 percent rating assigned for lumbosacral strain have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a. 2. The criteria for a rating in excess of 20 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for lumbosacral strain with an initial 10 percent rating, effective February 25, 2009. The Veteran appeared at a hearing before the undersigned in April 2016. A transcript of the hearing is of record. This matter was most recently before the Board in August 2021, when it was remanded to ensure compliance with respect to remand directives related to obtaining an examination report that complies with the United States Court of Appeals for Veterans Claims holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). 1. Entitlement to an earlier effective date of February 25, 2009 for the 20 percent rating assigned for lumbosacral strain is granted. Subsequent to the Board's August 2021 remand, the Agency of Original Jurisdiction granted an increased 20 percent rating for lumbosacral strain, effective September 8, 2021, based on the date of a post-remand examination that indicates the combined range of motion of the Veteran's thoracolumbar spine is limited to less than 120 degrees when considering the effects of flare-ups of the disability. Since the Veteran's previous examination reports fail to comply with the holding in Sharp, the Board resolves reasonable doubt in the Veteran's favor and finds the September 2021 report probative with respect to his level of functional impairment throughout the appeal period. Accordingly, an earlier effective date of February 25, 2009 for the 20 percent rating assigned for lumbosacral strain is warranted. To that extent, the Veteran's appeal is granted. 2. Entitlement to a rating in excess of 20 percent for lumbosacral strain is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. § 4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a body part which becomes painful on use must be regarded as seriously disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment. DeLuca, 8 Vet. App. at 207-08. In applying these regulations, VA should obtain examinations in which the examiner determines whether the disability was manifested by pain, weakened movement, excess fatigability, incoordination, and flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to those factors. DeLuca, supra; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); 38 C.F.R. § 4.59. Under the General Rating Formula for Diseases and Injuries of the Spine, 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When 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(b); 38 C.F.R. § 4.3. In this case, there must be evidence showing that the Veteran's forward flexion of the thoracolumbar spine is limited to 30 degrees or less or that he has ankylosis of the entire thoracolumbar spine, whether favorable or unfavorable, to warrant a higher rating under the General Rating Formula for Diseases and Injuries of the Spine. The Veteran has been provided several examinations during the appeal period. His initial examination was in October 2009 with subsequent examinations in July 2012, December 2014, December 2016, December 2019, and September 2021. These examination reports have all shown the Veteran retains more than 30 degrees of forward flexion of the thoracolumbar spine and does not have any degree of ankylosis of the thoracolumbar spine even after consideration of additional functional impairment due to pain, weakened movement, excess fatigability, incoordination, and flare-ups. The Board acknowledges it has previously remanded the Veteran's appeal due to inadequacies in prior examination reports under the Court's holding Sharp, as well in Correia v. McDonald, 28 Vet. App. 158 (2016). Yet, the Veteran's most recent September 2021 examination report complies with the Court's holding in both Correia and Sharp and shows the Veteran retains 45 degree of forward flexion during flare-ups and/or with repeated use over time compared with 60 degrees on initial range of motion testing. The Correia- and Sharp-compliant September 2021 examination report is otherwise consistent with the Veteran's previous examination reports, which show he had between 70 degrees and 90 degrees forward flexion on initial range of motion testing. Thus, the Board finds the September 2021 examination report is probative with respect to the Veteran's range of motion during flare-ups and on repeated use throughout the appeal period. Treatment records provide no indication the Veteran's thoracolumbar spine range of motion is limited beyond that shown during his examinations. In sum, the Board finds the preponderance of evidence is against a finding that the Veteran's forward flexion of the thoracolumbar spine has been limited to 30 degrees or less or that he has ankylosis of the entire thoracolumbar spine at any point in the appeal period; therefore, a rating in excess of 20 percent is not warranted under General Rating Formula for Diseases and Injuries of the Spine. The Board acknowledges the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for ratings in excess of 20 percent, but there is no indication from the record the Veteran has intervertebral disc syndrome, as all of his examiners have explicitly reported he does not have intervertebral disc syndrome but rather a lumbosacral strain. See 38 C.F.R. § 38 C.F.R. § 4.71a, Diagnostic Code 5243. Thus, a rating in excess of 20 percent is not warranted under the alternate Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board further recognizes Note 1 to General Rating Formula for Diseases and Injuries of the Spine requires consideration of ratings for neurological impairment associated with a spine disability. The record does not establish the Veteran has any neurological impairment associated with his service-connected lumbosacral strain. Much like the findings regarding intervertebral disc syndrome, there is a consensus among the examiners during the appeal period that there is no evidence of neurological abnormalities in the Veteran's case. As a result, further consideration for Note 1 to General Rating Formula for Diseases and Injuries of the Spine is not necessary in the context of the Veteran's appeal. In sum, an earlier effective date of February 25, 2009 for the 20 percent rating assigned for lumbosacral strain is warranted because the evidence establishes that Veteran's combined range of motion of the thoracolumbar spine has at least as likely as not been limited to 120 degrees or less since the effective date of service connection for lumbosacral strain when considering the effects of flare-ups of the disability, but the preponderance of evidence is against a finding that the Veteran has had forward flexion limited to 30 degrees or less or a higher level of impairment, to include ankylosis of the thoracolumbar spine, at any point in the appeal period with no evidence of intervertebral disc syndrome or neurological abnormalities in the Veteran's case. Accordingly, a rating in excess of 20 percent for lumbosacral strain must be denied. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.