Citation Nr: 21006980 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 12-18 452 DATE: February 8, 2021 ORDER An increased rating of 20 percent for lumbar strain with spondylosis is granted. REMANDED A rating in excess of 20 percent for lumbar strain with spondylosis is remanded. A rating in excess of 10 percent for right lower extremity radiculopathy, as secondary to the service-connected lumbar strain with spondylosis is remanded. A rating in excess of 10 percent for left lower extremity radiculopathy, as secondary to the service-connected lumbar strain with spondylosis is remanded. FINDING OF FACT Considering the Veteran’s pain and corresponding functional impairment, including during flare-ups, throughout the appeal, his lumbar strain with spondylosis was productive of disability analogous to limitation of motion greater than 30 degrees but not greater than 60 degrees of forward flexion. CONCLUSION OF LAW Throughout the appeal, criteria for a 20 percent rating for lumbar strain with spondylosis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1993 to April 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned in April 2017. This case was previously remanded by the Board in January 2018 and November 2019 decisions for further development. In the January 2018 Board decision, separate ratings of 10 percent were granted for associated left and right lower extremity radiculopathy, secondary to Veteran’s service-connected back disability. In the November 2019 Board decision, the Board remanded the issues for a new VA examination and medical opinions. The Board noted that the October 2018 VA thoracolumbar spine examination did not adequately address functional limitations during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017) outlines a VA examiners’ obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups. The examiner indicated the Veteran has occasional sharp pain during flare-ups, and these sharp increased pains occur twice a day. Additionally, the examination was not conducted during a flare-up, and the examiner was unable to state without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups. In light of Sharp, the Board found that a new VA examination should be provided addressing the Veteran’s lumbar strain with spondylosis, and radiculopathy of both right and left lower extremities. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A review of the record shows that Veteran is currently employed, so the issue of TDIU is not before the Board at this time. The Veteran additionally filed a claim for service connection for GERD, secondary to the service-connected lumbar strain with spondylosis in August 2020. In a January 2021 rating decision, the claim was denied, and is not before the Board at this time. 1. An increased rating for 20 percent for lumbar strain with spondylosis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran is seeking a rating in excess of 10 percent for his back disability prior to January 22, 2020 and in excess of 20 percent thereafter, pursuant to Diagnostic Code 5237. Under 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, spine disorders are to be rated under the General Rating Formula for Diseases and Injuries of the Spine on the basis of limitation of motion. Under these diagnostic codes, a 10 percent rating is assigned when rating forward flexion of the thoracolumbar spine is 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 assigned 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 there is 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 assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the thoracolumbar spine only. Finally, a 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. The General Rating Formula for Diseases and Injuries of the Spine provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. The Veteran contends that his back disability warrants a rating higher than that currently assigned. For the period prior to January 22, 2020, the Veteran has been rated 10 percent for the back disability, with an effective date of April 11, 2010. The Veteran was provided a VA Examination for his service-connected back disability in August 2011. For the period since January 22, 2020, the Veteran has been rated at 20 percent disabling for his back disability. In light of the Veteran’s VA examination results, the Board finds that a rating of 20 percent is warranted for the Veteran’s back disability throughout the whole appeal. The Veteran has received VA examinations for his back disability in August 2011 and October 2018. These VA medical examinations prior to the November 2019 Board remand are deemed to be inadequate for adjudication purposes as they do not comply with addressing the impact of flare-ups on range of motion of the back and testing of pain on both active and passive motion in weight-bearing and non-weight bearing, pursuant to Mitchell v. Shinseki, 25 Vet. App. 32 (2011), Sharp v. Shulkin, 29 Vet. App. 26 (2017), and Correia v. McDonald, 28 Vet. App. 158 (2016). The VA examiner for the January 2020 VA examination also did not estimate range of motion during Veteran’s reported flare-ups. The examination was not conducted during a flare-up, and the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare up. Because the January 2020 VA examination notes functional loss or impairment of the back and constant back pain, and the examination was not conducted during a flare-up, the Board finds that the Veteran’s lumbar spondylosis more nearly approximates the criteria for a 20 percent rating when considering this report of pain, and limited functional ability with flare-ups. The Board concludes that considering the lay and medical evidence, including the VA examination reports, which shows that the Veteran had forward flexion to 60 degrees and that the exam was not conducted during flare-ups nor did it test for additional functional loss with repetitive use over time, the condition warrants a 20 percent rating throughout the appeal. REASONS FOR REMAND 1. A rating in excess of 20 percent for lumbar strain with spondylosis is remanded. 2. A rating in excess of 10 percent for right lower extremity radiculopathy, as secondary to the service-connected lumbar strain with spondylosis is remanded. 3. A rating in excess of 10 percent for left lower extremity radiculopathy, as secondary to the service-connected lumbar strain with spondylosis is remanded. Regrettably, a remand is necessary for further evidentiary development of the Veteran’s increased ratings claim on appeal. The January 2020 VA examination did not comply with the remand directives; therefore, it must be remanded again to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Post-remand, the Veteran was afforded a VA examination in January 2020 for his back and lower extremity radiculopathy disabilities. However, in the examination the Veteran reported flare-ups, and the exam was not conducted during flare-ups. The VA examiner held that the exam was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-ups and had no basis to offer additional losses of function or motion. The Board finds that the January 2020 VA examiner did not substantially comply with the remand directives of the November 2019 Board decision. Thus, a remand is necessary to obtain a new VA examination for the Veteran’s back disability that complies with Sharp and Correia. Stegall, 11 Vet. App. at 268. The Veteran’s increased rating claims for right lower extremity and left lower extremity radiculopathy are also remanded, as they are inextricably intertwined with the above-discussed lumbar strain with spondylosis increased rating claim. The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first- hand knowledge, and/or were contemporaneously informed of his back disability, the nature, extent and severity of his back symptoms and the impact of his service-connected disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Then, arrange for the Veteran to undergo a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to evaluate the current nature and severity of his service-connected lumbar spine disability with associated bilateral lower extremity radiculopathy. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. (a.) The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved must be tested for pain on both active and passive motion and in weight-bearing and non-weight-bearing, if possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (c) The examiner should describe all functional limitations present (i) after repetition over time and, separately, (ii) during flare-ups. (Continued on the next page)   The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training) STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.