Citation Nr: 21006873 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-41 632 DATE: February 5, 2021 ORDER Prior to October 10, 2014, entitlement to a rating in excess of 10 percent for service-connected low back disability characterized as lumbar strain is denied. From October 10, 2014, entitlement to a 20 percent rating for lumbar strain, but no higher, is granted, subject to the laws and regulations governing the payment of monetary benefits. From October 20, 2014, entitlement to a rating in excess of 20 percent for lumbar strain is denied. REMANDED Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. Prior to October 10, 2014, the symptoms of the Veteran’s lumbar strain manifested as limitation of flexion no worse than 90 degrees, a combined range of motion no worse than 240 degrees, no ankylosis of the lumbar spine; and localized tenderness which did not result in abnormal gait or spinal contour. 2. From October 10, 2014, the symptoms of the Veteran’s lumbar strain with arthritis manifested as limitation of flexion no worse than 45 degrees, no ankylosis of the lumbar spine; and guarding and muscle spasm of the back which resulted in abnormal gait and or spinal contour. CONCLUSIONS OF LAW 1. Prior to October 10, 2014, the criteria for a disability rating in excess of 10 percent for lumbar strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. From October 10, 2014, the criteria for a 20 percent rating for lumbar strain are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 3. From October 10, 2014, the criteria for a disability rating in excess of 20 percent for lumbar strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from November 1990 to September 1991 and June 2000 to June 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board remanded the case to the AOJ in March 2018 and September 2019. In a September 2019 decision, the Board, in pertinent part, denied entitlement to service connection for tinnitus and remanded the issue of entitlement to an increased rating for lumbar strain to the AOJ for a VA examination. In May 2020, the Board determined that there had not been substantial compliance with the September 2019 remand directives with regards to the issue of an increased rating for the Veteran’s lumbar spine, and remanded the issue of entitlement to an increased rating for lumbar strain to the AOJ. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran appealed the September 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In July 2020, pursuant to a Joint Motion for Remand, the Court vacated the September 2019 decision and remanded the matter to the Board for action consistent with the Joint Motion. Increased Rating Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Although the Veteran’s entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994), see also 38 C.F.R. § 4.1. 1. Entitlement to a rating in excess of 10 percent for a low back disability prior to November 28, 2018, and in excess of 20 percent thereafter An August 1992 rating decision granted service connection for a back condition characterized as status post trauma to back, manifested by complaints of pain, with an evaluation of 10 percent effective September 21, 1991. The Veteran filed a claim for entitlement to an increased rating in February 2011. A February 2012 rating decision continued the 10 percent rating for lumbar strain, which the Veteran appealed in October 2014. A May 2019 rating decision granted a 20 percent rating for lumbar strain effective November 28, 2018. After a review of the evidence, for reasons set forth below, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s low back disability prior to October 10, 2014; a 20 percent rating, but no higher, is warranted for the Veteran’s low back disability from October 10, 2014; and a rating in excess of 20 percent is not warranted for the Veteran’s low back disability from October 10, 2014. The Veteran’s lumbar strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, which provides ratings for lumbosacral strain. The Board will consider whether the Veteran is entitled to receive higher ratings for his low back disability under all applicable diagnostic codes. The Veteran has a current diagnosis of lumbar strain with degenerative arthritis for his low back disability. See January 2012, November 2018, and October 2019 VA examinations. A January 2012 x-ray of the thoracolumbar spine did not demonstrate any significant evidence of degenerative changes. See January 2012 VA examination. A November 2014 MRI of the lumbar spine revealed mild degenerative changes. See October 2019 VA examination. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. In Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016), the Court clarified the additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. A review of the record reveals that, while the most recent VA examinations in November 2018 and October 2019 satisfy the requirements of Correia, the prior VA examination in January 2012 does not satisfy the requirements of Correia. In addition, a review of the record reveals that, while the May 2020 addendum opinion to the October 2019 VA examination satisfies the requirements of Sharp; the January 2012, November 2018 and October 2019 VA examinations do not satisfy the requirements of Sharp. Nevertheless, the Board finds that a remand to satisfy the requirements of Correia and Sharp is not warranted here, since remanding for another VA examination would not remedy the inadequacies of the evidence prior to the October 2019 VA examination and the May 2020 addendum opinion, and there is adequate evidence of record to address the guidance in those cases. For these reasons, the Board finds that VA examinations and the addendum opinion are in substantial compliance with applicable law and regulations, and that there is no prejudice to the Veteran in proceeding to a decision without a remand under the circumstances. In October 2019, the Veteran reported that he had flare-ups of his back once per month with pain lasting for up to an hour, with stiffness and spasms of the lower back with activities of daily living. Pursuant to the May 2020 Board remand, VA obtained an addendum opinion in May 2020. The VA examiner opined that the available records associated with the October 2019 VA examination did not reflect that the Veteran’s reported flare-ups, would cause a greater limitation of motion or function, than what was recorded based upon physical examination of the Veteran. The examiner noted that in October 2019, the Veteran reported that he had increased pain for approximately 1 hour, once a month and VA treatment records reflect that the Veteran worked 12 hour night shifts as a firefighter; and subsequent VA treatment records only noted chronic low back pain characterized as a 2 out of a 10. See also January 2020 and February 2020 VA treatment records. But see November 2018 VA examination; March 2020 VA treatment record. The Board notes that a January 2012 VA examination reflects that the Veteran had limitation of flexion no worse than 90 degrees and a combined range of motion no worse than 240 degrees. Physical examination of the lumbar spine revealed localized tenderness of the left thoracolumbar paraspinal muscles. The examiner noted that excess fatigability and interference with sitting, standing and weight-bearing contributed to functional loss. An October 2014 VA treatment record reflects limitation of flexion of at worst 45 degrees with pain. At a May 2015 Board hearing, the Veteran reported that over the years his low back pain had worsened, with pain on movement, stiffness and a constant dull pain in his lower back. November 2018 and October 2019 VA examinations reflect that the Veteran had limitation of flexion no worse than 80 degrees with pain and a combined range of motion no worse than 205 degrees with pain, which caused functional loss; and the Veteran had guarding or localized tenderness which resulted in abnormal gait or spinal contour. Further, throughout the period on appeal, the Veteran’s low back disability does not reflect findings of favorable or unfavorable ankylosis at any time during the pendency of the appeal. See November 2018 and October 2019 VA examinations. See 38 C.F.R. § 4.71a, General Rating. The medical evidence of record clearly shows that the Veteran’s spine is not ankylosed at any level. Although the Veteran’s low back disability does manifest in some limitation of motion from pain and stiffness, it is not in a fixed position without motion at any degree or angle, nor does the Veteran contend otherwise. Thus, based on the evidence as outlined above, the Board finds that the Veteran’s low back disability does not warrant a rating in excess of 10 percent prior to October 10, 2014, under Diagnostic Code 5237, because the evidence of record does not reflect that the Veteran had limitation of flexion of 60 degrees or less; a combined range of motion of 120 degrees or less; muscle spasm, guarding or localized tenderness; or ankylosis of the lumbar spine. 38 C.F.R. § 4.71a. Resolving all reasonable doubt in favor of the Veteran, with consideration of the objective medical evidence and subjective lay evidence of record, the Board finds that the Veteran’s low back disability warrants a 20 percent rating from October 10, 2014, the date of the VA treatment record which reflects that the Veteran had flexion no worse than 45 degrees. Finally, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran’s low back disability from November 28, 2018 under Diagnostic Code 5237, because the evidence of record does not reflect that the Veteran had limitation of flexion of 30 degrees or less or ankylosis of the lumbar spine. Id. Additionally, the Veteran’s low back disability does not warrant an additional rating for arthritis of the lumbar spine under Diagnostic Code 5003. The Veteran’s symptoms of pain and stiffness are already contemplated in his 10 percent rating prior to October 10, 2014, and in his 20 percent rating from October 10, 2014 under Diagnostic Code 5237. The Veteran cannot receive another 10 percent rating for pain under any other code contemplating limited and/or painful motion as this would result in compensating the Veteran twice for the same manifestation of his low back disability. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). See 38 C.F.R. § 4.71a; Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). The Board has also considered whether the Veteran is entitled to a higher rating under Diagnostic Code 5243 which provides ratings for IVDS with incapacitating episodes. However, as the Veteran’s low back disability does not reflect findings of IVDS with incapacitating episodes at any time during the pendency of the appeal, Diagnostic Code 5243 does not apply. 38 C.F.R. § 4.71a. The medical evidence of record does not show that the Veteran has IVDS or IVDS with incapacitating episodes as defined by regulation. Further, there is no evidence of separate associated neurological symptomatology that would warrant additional ratings. 38 C.F.R. § 4.71a, General Formula, Note 1. The Board has considered the lay testimony and statements of record regarding the severity of the Veteran’s low back disability and has relied on these reports in determining the appropriate disability rating under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. The Veteran is competent to report on factual matters of which he has firsthand knowledge and his statements regarding his symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). Where the Veteran has not discussed particular findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Resolving all reasonable doubt in favor of the Veteran, the Board finds that a 20 percent rating, but no higher, is warranted for the Veteran’s low back disability from October 10, 2014. Based on the evidence as outlined above, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s low back disability prior to October 10, 2014, and a 20 percent rating is not warranted for the Veteran’s low back disability from October 10, 2014. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for tinnitus is remanded. The Veteran asserts that his tinnitus is related to service. At the May 2015 Board hearing, the Veteran testified that during service, his military occupation specialty was an ordinance technician, and that he was around aircraft. He testified that on rare occasions, he worked around the aircraft without hearing protection. He also testified that during his first deployment in the Middle East, he did not wear hearing protection when he was exposed to noise from firefights and explosives. The Veteran testified that he began noticing his tinnitus in approximately 2006. The Veteran’s DD-214 notes that the Veteran’s military occupational specialty (MOS) was aircraft ordnance technician. Audiometry testing from January 2001 indicated that the Veteran was routinely exposed to noise. Therefore, the Board concedes that the Veteran was exposed to hazardous noise. 38 U.S.C. § 1154(a). As outlined in the July 2020 Joint Motion for Remand, the November 2018 VA examiner did not address whether it was more likely than not that the Veteran’s tinnitus was related to his conceded in-service noise exposure. In addition, the examiner did not discuss the Veteran’s statements regarding his in-service onset of tinnitus. Thus, the Board finds that an addendum opinion is warranted to determine the etiology of the Veteran’s tinnitus. The matters are REMANDED for the following action: Obtain a VA addendum opinion to ascertain the etiology of the Veteran’s hearing loss and tinnitus. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address whether it is at least as likely as not (50 percent or greater likelihood) that any current tinnitus manifested during service, that tinnitus was manifest to a compensable degree within one year of service, or that it is otherwise causally or etiologically related to a period of active duty service. The examiner should consider and discuss the June 1999, July 2004, October 2005, April 2011, March 2013, and April 2014 audiograms; and the April 2015 hearing test. In rendering the opinion, the examiner should consider the Veteran’s statements regarding his symptoms of his tinnitus to be competent. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Johnson 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.