Citation Nr: 21075714 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-38 961 DATE: December 21, 2021 ORDER Effective June 23, 2015, an initial 20 percent rating, but not higher, for service-connected lumbar contusion is granted. REMANDED Entitlement to service connection for heat stroke residuals, to include headaches, is remanded. FINDING OF FACT Throughout the pendency of the appeal, the Veteran suffered from forward flexion of the lumbar spine to, at worst, 40 degrees considering pain and other factors; ankylosis and incapacitating episodes due to intervertebral disc syndrome (IVDS) were not shown. CONCLUSION OF LAW Effective June 23, 2015, the criteria for an initial 20 percent rating, but not higher, for service-connected lumbar contusion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2009 to June 2015. This matter comes before the Board of Veterans' Appeals (Board) from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These issues were previously remanded by the Board in October 2018 and May 2021. Effective June 23, 2015, an initial 20 percent rating, but not higher, for service-connected lumbar contusion is granted. Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made 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. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 10 percent disability rating when 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. 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, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12 month period. In this case, the Veteran contends that he has had bedrest but this bedrest has never prescribed. During the appeal period the Veteran underwent VA examinations in June 2015, September 2019, and May 2021. Range of motion testing was performed and showed, at worst, forward flexion to 80 degrees and a combined range of motion no less than 220 degrees. During examination the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. No report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran's lay statements. While the Veteran has essentially stated that he has reduced motion in his spine, he has not described a range of motion which would warrant a higher rating. In this regard, during the September 2019 examination he did report flare-ups but described the flare-ups as consisting of increased pain. VA treatment records from March 2016 indicate that the Veteran has difficulty standing for more than1 hour, must shift his weight while sitting and gets a burning sensation in his back after walking 1 block. In his August 2016 Form 9, the Veteran stated that he experiences pain when sitting, lying down or standing and that he sometimes needs assistance getting up. The Veteran underwent a VA examination in August 2021. Range of motion testing was performed and showed, at worst, forward flexion to 40 degrees and a combined range of motion no less than 90 degrees. During examination the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. Here, the August 2021 VA examination report shows that the Veteran's service-connected back disability satisfies the criteria for a 20 percent rating based on limitation of motion. While earlier VA examination reports do not show that the Veteran meets the criteria for a 20 percent ratingeither on the basis of IVDS or limitation of motion measurementsthe Board finds that evidence additional functional loss, to include reports of pain on standing more than one hour, pain when sitting and lying down and that he sometimes needs assistance getting up warrants the next higher rating. Indeed, 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. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2014); DeLuca v. Brown, 8 Vet. App. 202 (1995). As the evidence shows that the Veteran's additional functional loss has been present throughout the pendency of the appeal, an initial 20 percent rating is warranted from June 23, 2015. The evidence of record does not support a rating in excess of 20 percent at any time during the pendency of the appeal. First, as there is no indication of physician-prescribed bedrest, a 40 percent rating is not warranted on the basis of IVDS. Second, as range of motion testing shows limitation of motion, at worst, to 40 degrees, a 40 percent rating is not warranted on the basis of limitation of motion, even considering the Veteran's reports of additional functional loss, to include during flare-ups or episodes of increased symptomatology. Indeed, such was the basis for the Board's decision to increase the Veteran's rating from 10 percent to 20 percent herein. Id. No report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran's lay statements. Finally, there is no medical evidence of favorable ankylosis of the entire thoracolumbar spine. Additionally, there is no lay evidence of limitation of motion that is the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021) (explaining that ankylosis is defined as immobility of a joint). For these reasons, effective June 23, 2015, an initial 20 percent rating, but not higher, for service-connected lumbar contusion is granted. REASONS FOR REMAND Entitlement to service connection for heat stroke residuals, to include headaches Remand is necessary to comply with the Board's May 2021 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The Board specifically requested an opinion on the Veteran's tension headaches, which has not been obtained. The May 2021 VA examination only addressed the Veteran's migraine headaches, but not his tension headaches. Additionally, this examiner appears to rely on lack of treatment records and does not adequately consider the Veteran's lay statements. As such, remand is necessary to obtain an opinion regarding his tension headaches as well as adequately address the Veteran's lay statements regarding the onset and course of any headache condition, including tension headaches and migraine headaches. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to treatment for residuals of heat stroke, including headaches. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current headaches onset during service or is otherwise related to an in-service injury, event, or disease, to include as due to heat stroke or exertional hyperthermia. In offering the opinion, the examiner is asked to consider the Veteran's lay statements of suffering from headaches in service and afterwards. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hofmeister 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.