Citation Nr: 21076921 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 08-09 138 DATE: December 28, 2021 ORDER Entitlement to service connection for a right hip disorder is denied. Entitlement to a disability rating of 40 percent for service-connected lumbar strain as of May 23, 2012 is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected lumbar strain prior to May 23, 2012 is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a current right hip disorder that began in or is related to his active military service or that arthritis was manifested to a compensable degree within a year of service. 2. The preponderance of the evidence is against finding that the Veteran's right hip pain is due to an undiagnosed illness or medically unexplained chronic multisymptom illness (MUCMI). 3. The preponderance of the evidence is against finding that the Veteran has a current right hip disorder that is proximately due to, the result of, or has been aggravated by his service-connected low back strain. 4. Resolving reasonable doubt in the Veteran's favor, as of March 23, 2012, his service-connected lumbar strain was productive of a disability picture consistent with forward flexion of the thoracolumbar spine of 40 degrees or less, but not ankylosis of the thoracolumbar spine or the functional equivalent thereof. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disorder are not met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317. 2. As of March 23, 2012, the criteria for a rating of 40 percent, but no higher, for service-connected lumbar strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active military service from March 1990 to October 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO)'s August 2008 rating decision. The Veteran testified at a Board video-conference hearing in March 2015 held before the undersigned Veterans Law Judge and the transcript is associated with the claims file. The Board previously remanded the Veteran's claim for service connection for a right hip disorder in December 2010, December 2013, August 2017, May 2020 and March 2021 for additional development. The Board finds that substantial compliance with the prior remands has been accomplished. Substantial compliance with a remand order, not strict compliance, is required. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). Therefore, the Board may proceed forward with adjudicating the Veteran's claim without prejudice to him. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Furthermore, the Board notes that the issue of entitlement to higher ratings for the Veteran's service-connected lumbar strain was returned to the Board from the Court of Appeals for Veterans Claims (Court) in March 2021 pursuant to a Joint Motion for Partial Remand (JMPR). The Veteran was issued a 90-day letter in June 2021. The 90 days having expired, this issue is ready for readjudication. 1. Entitlement to service connection for a right hip disorder The Veteran is seeking service connection for a right hip disorder, diagnosed as arthritis, which he contends is either directly related to his military service or is secondary to his service-connected lumbar strain. Alternatively, as the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War, VA has considered whether presumptive service connection for an undiagnosed illness or a MUCMI is warranted. The Veteran reports that his occupational specialty (MOS) (i.e., LOS-F-H Crewmember) required him to sit in a tight and cramped seat and/or space in a Bradley tank for over 36 hours during training. He initially reported that his lower back, right hip and both knees were first checked out by the field medic at NTC and he was given Motrin for pain. See June 2006 Correspondence. However, the Veteran later denied receiving treatment in service for his right hip. See March 2015 Board hearing transcript, p. 18. Post-service VA treatment records show the Veteran's first complaints are seen in a November 2005 Primary Care note in which he reported having pain from an old right groin strain. A July 2006 Nurse's note records the Veteran's complaints of pain in the various places to include the right hip, but no evaluation was performed. In October 2007, the Veteran underwent an Orthopedic consultation where it was noted he had clicking with flexion and extension of the right hip when he does a flutter kick type of motion with some pain. The assessment was a possible right hip labral tear or acetabular/femoral anterior impingement. A November 2007 magnetic resonance imaging (MRI) study without contrast showed fluid in the right hip joint but was otherwise negative. At a November 2007 follow up visit with Orthopedics, the Veteran reported some consistent popping and pain. In January 2008, the Veteran underwent an MRI with contrast which was unremarkable and specifically ruled out a labral tear of the right hip. At a May 2008 Orthopedic follow up visit, the Veteran reported having pain in front of the right hip and pointed to the proximal medial groin. He reported that his symptoms are primarily activity based. On examination, the Veteran was tender over the medial inguinal ligament and going down into the region of the femoral triangle. The impression was persistent medial right groin pain. In June 2008, he underwent a surgical consultation which assessed him to have musculoskeletal groin pain without need for surgery. On examination, it was noted he was tender right on the tendon part of the adductor muscle group as it inserts onto the pelvis as he noticed extreme discomfort upon palpation of this area. In August 2008, the Veteran underwent a consultation with Rheumatology at which the Veteran reported experiencing intermittent right hip pain since 1996 with current episode since 2000. The impression was decreased flexion and internal rotation, but not external rotation, of the right hip. At a September 2008 physical therapy consultation, the Veteran again complained of right groin pain and active range of motion of the right hip was limited in external rotation. Subsequent physical therapy notes indicate the Veteran's pain and range of motion improved with therapy. A February 2009 Orthopedic note indicates the Veteran described a snapping or pain sensation in the anterior groin with a burning sensation at times and at times feels like it comes around from the right buttock and around the side of the hip. He reported he feels the symptoms in the anterior medial groin when doing exercises with an abdominal roller. He was noted to have a normal gait without signs of favoring. Supine examination showed full range of motion of the hip and negative straight leg raise. The impression was right hip area of discomfort. The physician noted that there are conditions when the soleus tendon, or maybe even a soleus bursal inflammation, may reproduce similar symptoms and strongly recommended that the Veteran continued therapy for stretching exercises of the proximal quads and soleus. Thereafter, his records are somewhat silent for complaints regarding the right hip until December 2015 at which time it was noted he had right hip pain on passive range of motion and was referred to physical therapy again. In February 2016, he underwent a physical therapy consultation at which time he reported the date of onset was in January 2015 and he complained of mild intermittent pain deep in the right hip which becomes severe with going down stairs or when he tries to squat or move suddenly. He described the pain as a burning sensation. On examination, he did not have tenderness over the lateral aspect of the right hip but had slightly decreased muscle strength in both lower extremities, worse in the right hip. Movements of the right hip were either pain-free or far less painful when performed passively with end range of motion rotations, especially external rotation, reproducing the pain. It was noted that X-rays taken in December 2015 showed mild degenerative changes at the hips. However, the impression was right hip pain for past year with signs and symptoms more indicative of soft tissue or labral tear than mild arthritic changes. In April 2016, he was reassessed by Physical Therapy at which time it was noted he had mild, intermittent pain deep in the right hip which worsens with going down the stairs some of the time and somewhat less with squatting, but the same when moving suddenly. He described the pain as a burning sensation, predominantly in the groin. The physical therapy treatment notes show the Veteran's right hip pain improved and treatment records thereafter are quiet for additional treatment for the Veteran's right hip pain. The medical evidence also includes VA in-person examinations conducted in August 2008, April 2011, and April 2018. In August 2008, the Veteran was diagnosed to have a right hip strain. In April 2011, the Veteran was diagnosed to have a possible labral tear. However, in April 2018, the VA examiner found no evidence to diagnose a current right hip disorder. Moreover, the examiners provided negative opinions as to the Veteran's right hip disorder being related to his active military service or secondary to his service-connected lumbar spine disability. However, in previous remands, the Board has found these medical opinions to be inadequate for various reasons. The RO obtained additional medical opinions in July 2020 and May 2021 at the request of the Board. In a March 2021 remand, the Board also found the July 2020 medical opinions to be inadequate. The RO obtained new medical opinions in May 2021. After reviewing these medical opinions, the Board finds that they are sufficient to adjudicate the Veteran's claim. The examiner considered the Veteran's past medical history (including the various diagnoses in the treatment records), his contentions, and the examination findings and, based on that, rendered appropriate opinions consistent therewith and the remainder of the evidence of record. The Board finds, therefore, that the examiner's opinion is highly probative as to whether a nexus relationship exists between the Veteran's right hip disorder and his military service or his service-connected lumbar spine disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion.); see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). The evidence establishes that the Veteran has a current right hip disorder although there is conflicting evidence as to what exactly the diagnosis may be. In previous remands, the Board has identified these conditions as right hip strain, recurrent dislocation of joint of pelvic region and thigh, internal derangement of the hip and arthritis. The Board also acknowledged that a November 2007 MRI showed fluid on the right hip joint but was uncertain whether this represents a disorder. The Board finds that the evidence clearly demonstrates that the Veteran's pain causes functional loss as he has treated with physical therapy multiple times over the years with findings of decreased motion and muscle strength in the right hip resulting from his pain. The Court of Appeals for the Federal Circuit has held that, where pain causes functional impairment, a "disability" for VA compensation purposes can exist, even if there is no underlying diagnosis or pathology. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). Thus, the Board finds that the Veteran has a current right hip disability. In considering whether the Veteran's current right hip disability is related to his military service, the Board initially notes that a December 2015 X-ray of the hips showed that the Veteran now has degenerative changes (i.e., arthritis) of the hips; however, previous imaging scans were negative for such a finding. Osteoarthritis is an enumerated chronic disease under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, as the evidence does not show the presence of osteoarthritis until almost 20 years after the Veteran's discharge from active service, the Board finds that presumptive service connection for a chronic disease is not warranted as the evidence fails to demonstrate that osteoarthritis manifested to a compensable degree within one year of discharge. See 38 C.F.R. § 3.307(a)(3). Moreover, the Board finds that service connection based upon chronicity or a continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) is also not warranted as the evidence clearly demonstrates that the Veteran's osteoarthritis has not been present since his active military service but presented more than 20 years thereafter. Moreover, the Board acknowledges that the Veteran served in the Southwest Asia theater of operations during the Persian Gulf War and, therefore, also considers whether his right hip pain may be due to an undiagnosed illness or a medically unexplained complex multisymptom illness (MUCMI). Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2026. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a MUCMI. 38 C.F.R. § 3.317(a)(2)(i). The term MUCMI refers to a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. 38 C.F.R. § 3.317(a)(2)(ii). A multisymptom illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive. Stewart v. Wilkie, 30 Vet. App. 383, 389-90 (2018). A multisymptom illness is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood. Id. The determination of whether a MUCMI is "medically unexplained," that is, the etiology and pathophysiology of the multisymptom illness, must be particular to the claimant's case. Id. at 291. Here, the Veteran had active service in Saudi Arabia from January to May of 1991. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). In May 2021, a VA clinician opined that, after considering all the potential diagnoses identified by the Board, the Veteran's right hip disability cannot be considered an undiagnosed illness or a MUCMI setting forth that each diagnosis identified has a known etiology and pathology. 38 C.F.R. § 3.317(a)(1)(ii), (a)(2)(ii). The Board finds this opinion probative because it is clearly based upon the record, considers all identified diagnoses and is consistent with the other evidence of record. Even though the medical records do not show a confirmed diagnosis of the Veteran's right hip condition, all of his treating physicians appear to agree that he has a clear disability. The Board does not find any evidence to the contrary. Moreover, the VA clinician who provided the May 2021 medical opinion clearly believes that the Veteran's right hip disability is a product of a known etiology and pathology explaining that each identified condition has a specific etiology and pathology. Accordingly, as both the etiology and the pathophysiology of the Veteran's right hip disability are at least partially understood, it is not considered an undiagnosed illness or a MUCMI and presumptive service connection on this basis is not warranted. In addition, the Board has considered whether the Veteran's right hip disability is secondary to his service-connected lumbar spine disability. Service connection may be granted on a secondary basis for a disability that is proximately due to, the result of, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling, Leopoldo v. Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet. App. 34 (1991). Thus, service connection on a secondary basis may be granted under one of two conditions. The first is when the disorder is proximately due to or the result of a disorder of service origin. In that case, all symptomatology resulting from the secondary disorder will be considered in rating the disability. The second is when a service-connected disability aggravates a nonservice-connected disability. In those cases, VA may only consider the degree of disability over and above the degree of disability prior to the aggravation. The May 2021 VA clinician opined that the Veteran's right hip disability is not at least as likely as not proximately due to or the result of the service-connected lumbar spine disability. The examiner explained that the identified right hip disorders and the service-connected lumbar strain are not medically related as right hip strain, recurrent dislocation of joint of pelvic region and thigh, internal derangement of the hip and osteoarthritis are entirely separate entities from the lumbar strain and are unrelated to it. A thorough review of the available scientific and objective literature failed to demonstrate a causal relationship. In making this determination, the VA clinician remarked that it had considered the Veteran's reported history of his symptoms and the lay/buddy statements regarding the Veteran's symptoms, the contentions that gait and stance can affect other joints, and the cited articles. The Board finds that the Veteran's treatment records support the VA clinician's findings in that they do not show any opinion relating the Veteran's right hip issues to his service-connected lumbar spine disability. Rather, the earliest records showing the Veteran's complaints of right hip pain indicate that the Veteran reported he had a previous groin strain with recurrent symptoms. Moreover, the treatment records do not show that the Veteran's gait and stance were primarily disturbed by his service-connected lumbar strain. Rather, the overwhelming majority of the notations regarding his gait and stance in these treatment records indicate they were normal with the exception of when he had flare ups of his right hip pain. For example, the Veteran's gait was noted to be slightly antalgic at the time of a February 2016 Physical Therapy consultation; however, a couple weeks later and after several physical therapy visits, his gait was again noted to be normal. Furthermore, the Board finds that the evidence is against finding that the Veteran's right hip disability has been aggravated by his service-connected lumbar strain. The May 2021 VA clinician stated that he could not establish a baseline and opined that the Veteran's right hip disability has not been aggravated beyond its natural progression by his service-connected lumbar strain because there is a lack of sufficient objective medical evidence to confirm or support such a conclusion. VA will not concede service connection on a secondary basis due to aggravation unless a baseline level of severity of the disability can be established. 38 C.F.R. § 3.310. The VA clinician specifically opined that a baseline could not be established. Moreover, the Veteran has not presented any argument or set forth any evidence to establish a baseline. Therefore, without an established baseline level of severity, secondary service connection on the basis of aggravation cannot be established. The Veteran has not submitted any opposing opinion to support his contention that his right hip disability is secondary to his service-connected lumbar strain. Although he believes that his right hip disability is proximately due to or the result of his service-connected lumbar spine disability, neither the Veteran nor his representative in this case is competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships, disease pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran or his representative in this case because the record does not show that they have the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA medical opinion that the Veteran's right hip disorder is not secondary to the service-connected lumbar strain. Finally, the Board has considered whether the Veteran's right hip disability is directly related to his military service but finds the preponderance of the evidence is against such a finding. Service connection may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's right hip disability and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The post-service medical evidence does not establish the presence of a right hip condition until 2005 at the earliest with the Veteran's statements indicating the earliest onset to be in 2000 after his discharge from active service. Although the Veteran initially reported in support of his claim that he was treated for his right hip in service, at the Board hearing, he denied having any treatment in service. The Veteran's VA treatment records also show his report to his treating physicians that his right hip pain did not start until 2000. Given the inconsistencies in the Veteran's statements as to the onset of his right hip pain along with the lack of evidence of treatment in the service treatment records or for many years after, the Board does not find the Veteran's statements as to an onset in service of his current right hip disorder to be credible. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, and consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). Furthermore, the May 2021 VA examiner provided a negative medical opinion that the Veteran's current right hip disorder is directly related to his military service because of the type of disorder noted in his treatment records and the lack of evidence of any treatment for or diagnosis of those disorders in the service treatment record and there is no objective evidence in the available medical records showing a link between them and the Veteran's service. The Veteran has not submitted any medical evidence or opinion opposing the VA examiner's negative nexus opinion and, as previously discussed, his lay statements of a relationship between his military service and his current right hip disorder are not competent as he lacks the expertise to render such an opinion. For the foregoing reasons, the Board concludes that the preponderance of the evidence is against finding that the Veteran's right hip disorder, whatever the diagnosis, is related to his military service (to include on a presumptive and direct basis) or secondary to his service-connected lumbar spine disability. The Board has considered the doctrine of reasonable doubt but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Service connection is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to a disability rating in excess of 20 percent for service-connected lumbar strain as of May 23, 2012 The Veteran's appeal was previously before the Board in May 2020 at which time the Board issued a decision denying higher staged ratings for the Veteran's service-connected lumbar strain. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In March 2021, the Court vacated the Board's decision and remanded the Veteran's appeal back to the Board pursuant to a JMPR, in which the parties agreed the Board provided inadequate reasons and bases in the May 2020 decision. In the JMPR, the parties agreed the Board erred in that, for the period commencing on May 23, 2012, the Board provided inadequate reasons and bases for finding a rating in excess of 20 percent is not warranted despite medical evidence indicating the Veteran began having pain at 20 degrees of forward flexion of the thoracolumbar spine. The Veteran's service-connected lumbar strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases 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. 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. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. As of February 7, 2021, VA amended the rule pertaining to the evaluation of musculoskeletal disabilities. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 25,450 (November 27, 2020). In this regard, while such did not amend the General Rating Formula or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, diagnostic code 5243 now includes the following language: "assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." Therefore, such changes do not affect the criteria under which the Veteran's lumbar spine disability is rated. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. On VA examination conducted on May 23, 2012, the Veteran was diagnosed to have a lumbar strain. He reported having flare-ups of pain three times per week in the early morning described as pain in the lumbar region (L3-L4) that radiates out laterally. On physical examination, range of motion testing showed the Veteran had forward flexion limited to 45 degrees with pain beginning at 20 degrees with no additional limitation of motion after repetitive use testing. There was also pain on palpation of the paraspinous muscles. The examiner noted that the only contributing factor to disability was pain on movement. Based upon this examination, the RO awarded a 20 percent disability rating for the Veteran's service-connected lumbar strain. Upon further review, however, the Board finds that a 40 percent rating, but no higher, is warranted. VA has recognized that painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. Consequently, as the May 2012 VA examination showed the Veteran had painful motion beginning at 20 degrees of flexion, the Board finds that the criteria for a higher rating of 40 percent has been met. However, the Board continues to find that a disability rating higher than 40 percent is not warranted as the evidence does not establish that the Veteran has actual ankylosis of the thoracolumbar spine or the functional equivalent thereof. Even though the Veteran's pain causes limitation of motion of the thoracolumbar spine, the examination shows he continues to have significant motion of the thoracolumbar spine beyond where his pain begins. Moreover, the Veteran's statements as to flare-ups of pain do not indicate he has the functional equivalent of ankylosis of the thoracolumbar spine as he does not report having the inability to move the spine. The Board further acknowledges that there is evidence indicating the Veteran's may have ankylosing spondylitis of the spine to include fusion or ankylosis of the left sacroiliac joint. An August 2008 Rheumatology consultation note shows the Veteran was assessed to have ankylosing spondylitis by the New York criteria with X-rays of the lumbar spine showing sclerosis and possible fusion of the upper left sacroiliac joint. However, an October 2011 Rheumatology note indicates that the assessment was that the Veteran's back pain by history seemed to be inflammatory and additional work up was ordered. A February 2012 Rheumatology note indicated that it was still not clear that he has ankylosing spondylitis as his HLA B27 was negative and X-rays showed that the sacroiliac joints were not fused. Subsequently, a March 2016 VA examiner addressed the question of whether the Veteran has ankylosing spondylitis and determined that this diagnosis of had been discontinued based on the negative HLA B24 and other confirmatory studies, including labs and imaging studies, were normal. This finding is supported by the Veteran's primary care physician who stated in an April 2016 that the Veteran has no evidence of inflammatory arthritis. Hence, the Board finds that evaluating the Veteran's lumbar spine disability as an inflammatory arthritis such as ankylosing spondylitis is not justified by the evidence of record. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is in favor of granting a rating of 40 percent, but no higher, for the Veteran's service-connected lumbar strain. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. In making this decision, the Board acknowledges that the May 2012 VA examination does not comply with Sharp and Mitchell in that the examiner did not provide an explanation as to why he could not determine the Veteran's additional limitation of motion upon flare ups or after repetitive use over time. However, the Board has considered the Veteran's reports of additional functional loss on flare ups or with repetitive use over time along with the May 2012 VA examiner's findings of where pain begins in awarding a higher rating. Moreover, subsequent examinations done in March 2016 and April 2018 do not show any functional limitations on either flare ups or after repetitive use over time. Regardless, a 40 percent rating is the maximum rating for limitation of motion of the lumbar spine. REASONS FOR REMAND 3. Entitlement to a disability rating in excess of 10 percent for service-connected lumbar strain prior to May 23, 2012 is remanded. Regarding the Veteran's lumbar spine claim for a disability rating higher than 10 percent prior to May 23, 2012, the Board finds that further medical clarification is required. In the JMPR, the parties agreed that the Board erred in failing to address favorable evidence, to wit, VA treatment records from August and September of 2008 and by relying on an August 2008 VA examination which the parties found inadequate because the examiner did not provide an estimate as to the degrees of loss of range of motion during flare ups or provide an explanation as to why an estimate could not be given pursuant to Sharp. The August 2008 VA examiner stated that additional limitation due to flare ups cannot be determined without resorting to speculation but did not explain the reason for this conclusion. Therefore, the examiner did not provide an adequate assessment regarding the Veteran's functional loss as required by Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). An examiner's inability to provide an opinion without resorting to speculation must be based the limitation of knowledge in the medical community at large and not a limitation of the individual examiner. A merely statement such as that given by the examiner is not adequate because it does not make it clear the reason that an opinion cannot be given. Hence, remand is warranted for an opinion as to what, if any, additional functional limitations the Veteran had in August 2008 during flare-ups, expressed in degrees of loss of range of motion, or for an explanation as to why an estimate cannot be given. The matters are REMANDED for the following action: Please obtain a retrospective opinion as to the service-connected low back for the period prior to May 23, 2012, that provides an estimation of functional loss on flare-ups pursuant to Sharp of the Veteran's service-connected lumbar strain. The examiner is asked to express an opinion that considers functional loss as reported at the August 2008 back examination. Specifically, the examiner is to describe the additional functional impairment caused by the Veteran's lumbar strain during flare-ups (as reported by the Veteran at the August 2008 VA examination and seen in the VA treatment records from April 2008 to May 2012) and state whether such functional loss resulted in additional loss of range of motion. If so, this should be expressed in degrees of motion, if possible. If any part of the requested opinion above cannot be provided without resorting to speculation, the clinician must provide a clear explanation as to why an opinion cannot be given to include, but not limited to, whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional attainable facts are required), or a deficiency in the examiner's knowledge or training. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.M. Kreitlow 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.