Citation Nr: 21009973 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 10-18 988A DATE: February 23, 2021 ORDER An initial rating in excess of 10 percent prior to June 3, 2018 for a lumbar spine disorder is denied. REMANDED Entitlement to a separate rating for bilateral lower extremity radiculopathy is remanded. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT Prior to June 3, 2018, the Veteran’s lumbar spine disorder was not manifested by forward flexion of the thoracolumbar spine to 60 degrees or less; or, combined range of motion of the thoracolumbar spine 120 degrees or less; 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. CONCLUSION OF LAW Prior to June 3, 2018, the criteria for an initial rating in excess of 10 percent for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2003 to January 2008. In a January 2020 decision, the Board bifurcated the issue of entitlement to an increased rating for a lumbar spine disorder and adjudicated the period from June 3, 2018. The period prior to June 3, 2018 along with the issue of entitlement to TDIU was remanded for additional development. In June 2020, the Board again remanded this case for additional development. 1. Entitlement to an initial increased rating prior to June 3, 2018 for a lumbar spine disorder. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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, 126 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4. 40. It is important that when evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. It is the intent of the schedule to recognize painful motion with joint or periarticular pathology as productive of disability. It is also the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran’s lumbar spine disorder is rated under DC 5237 for a lumbosacral strain pursuant to the General Rating Formula for Diseases and Injuries of the Spine. Under this rating criteria, a 10 percent disability rating is warranted for forward flexion of the thoracolumbar (lumbar) 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 disability rating is assigned 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 disability rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. As explained below, there is no evidence the Veteran has intervertebral disc syndrome (IVDS) prior June 3, 2018. As such, the specific rating criteria that pertain to IVDS will not be considered herein. 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. 38 C.F.R. § 4.71a, Note (2). The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39- 40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § § 3.102. In this case, the Veteran is in receipt of an initial 10 percent rating prior to June 3, 2018 for his lumbar spine disorder. He contends that a higher rating is warranted. For reasons discussed more fully below, the Board finds that an increased 20 percent rating is not warranted prior to June 3, 2018. In July 2008, the Veteran underwent a VA orthopedic examination to evaluate several disabilities to include his lumbar spine disorder. The Veteran reported low back discomfort with use. Upon evaluation, the examiner noted no fixed or angular kyphosis or scoliosis, no regional or focal muscle wasting or atrophy, and mild intra-spinus process tenderness at L1, without perilumbar muscle stiffness or tenderness. On range of motion testing, the Veteran had flexion at 80 degrees, extension at 30 degrees, bilateral lateral flexion at 30 degrees, and bilateral rotation at 30 degrees. The examiner indicated that repeated movement did not show pain, excessive fatigability, incoordination, weakened movement, or flares. The Veteran demonstrated normal strength testing and normal heel/toe/tandem walk. In April 2012, the Veteran underwent a VA examination to evaluate his lumbar spine disorder. The Veteran reported non-radiating low back pain when stooping, standing in one position over 15 minutes, or riding in a car for over an hour. He did not report flare ups. Range of motion testing showed flexion at 90 degrees or greater, extension at 30 degrees or greater, left and right lateral flexion at 30 degrees or greater, and left and right lateral rotation at 30 degrees or greater. There was no objective evidence of painful motion noted. There was no additional range of motion loss on repetitive use testing. There was no localized tenderness or pain to palpation for joints and/or soft tissue. There was no guarding or muscle spasm and no radiculopathy. The Veteran had normal strength, reflexes, and sensation. The examiner indicated that there was no functional impact caused by the Veteran’s lumbar spine disorder. In January 2014, the Veteran was provided another VA examination to evaluate the severity of his lumbar spine disorder. The Veteran reported that there were flare ups with overuse. Range of motion testing showed flexion at 80 degrees, extension at 30 degrees, left and right lateral flexion at 30 degrees, and left and right lateral rotation at 30 degrees. There was no additional range of motion loss on repetitive use testing. The examiner documented functional impairment consisting of less movement than normal and pain on movement. The examiner indicated that the Veteran had localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. There was no guarding or muscle spasm resulting in abnormal gait or abnormal spinal contour, no radiculopathy, no ankylosis, and no IVDS. The Veteran had normal strength, reflexes, and sensation. The examiner stated that there were some limited initial flexion movements, but no additional loss of movement due to pain, weakness, fatigue, or incoordination with repetition. The examiner also stated that he could not determine the function/limitation due to flare-up episodes without resorting to mere speculation. In June 2015, a fourth VA examination was conducted to evaluate the Veteran’s lumbar spine disorder. The examiner diagnosed lumbosacral spine strain. The Veteran reported that there were no changes other than his back was getting stiffer when he bent forward. He also reported flare ups when bending forward. Range of motion testing showed flexion at 70 degrees, extension at 30 degrees, bilateral lateral flexion at 30 degrees, and bilateral lateral rotation at 30 degrees. There was no additional range of motion loss on repetitive use testing. There was no evidence of pain with weight bearing. The examiner indicated that the Veteran had localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine. The Veteran had guarding and tenderness that did not result in abnormal gait or abnormal spinal contour. There was no radiculopathy, no ankylosis, and no IVDS. The Veteran had normal strength, reflexes, and sensation. The examiner indicated that the examination was neither medical consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time or during flare ups and pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare ups. VA treatment records throughout the period on appeal document the Veteran’s continued reports of low back pain and no problems with gait or balance. See November 2015 and October 2017 VA Treatment records. In August 2017, the Board acknowledged that the June 2015 VA examination did not include range of motion testing results for both active and passive motion and, therefore, did not comply with the holding in Correia v. McDonald, 28 Vet. App. 158 (2016). The Board remanded the claim for a new VA examination, which was conducted on June 3, 2018 VA examination. This examination was the basis for the Regional Office’s (RO’s) grant of entitlement to a 40 percent rating for a lumbar spine disorder, effective June 3, 2018. See September 2019 rating decision. Thereafter, in January and June 2020, the Board sought further clarification and remanded the claim (limited to the period prior to June 3, 2018) for a retrospective medical opinion to determine whether the Veteran’s range of motion results from the July 2008, April 2012, January 2014, and June 2015 VA examinations would have been reduced if tested in both active and passive motion and with weight bearing and non-weight bearing. The Board also sought clarification as to the extent of the Veteran’s functional loss during a flare up of pain as described in his June 2008, April 2012, January 2014, and June 2015 VA examinations. In October 2020, the RO procured a VA addendum opinion consistent with the instructions outlined in the January and June 2020 Board remands. The examiner stated that the VA examinations conducted in 2008, 2012, 2014, and 2015 were all very similar and reported similar findings. The range of motion demonstrated by these examinations were near normal for flexion and normal in every other plane. The examiner observed that the documented range of motion findings were reported for active range of motion while weight bearing, but if active range of motion had been tested while non-weight bearing, the results would almost certainly have been the same if not completely normal. Passive range of motion testing for the low back was not recommended, nor would it be expected to be any worse if it were tested. The examiner indicated further that the consistency demonstrated on the VA examinations from 2008, 2012, 2014, and 2015 supported the reliability that the documented ranges of motion were an accurate reflection of the Veteran’s status. Active range of motion testing while weight bearing gave the most accurate picture of functionality and passive range of motion would be difficult to perform and was not recommended. The examiner indicated further that the Veteran did not report flare ups for the 2008 or 2012 VA examinations and, therefore, no additional range of motion or functional loss would be reported. The first-time flare ups were reported was during the 2014 VA examination and again during the 2015 VA examination. During such flare ups, further decreased range of motion would be reasonably estimated to be at 75 degrees of flexion for the 2014 VA examination and 65 degrees of flexion for the 2015 VA examination, with normal range of motion in every other plane. Repetitive testing did not, however, result in any loss of range of motion in any plane, which would support the lack of further degradation in range of motion or functional loss with repetitive use. The examiner clarified that, when the 2018 VA examination was conducted, there was a drastic decrease in range of motion findings in every plane, with no evidence of trauma to account for such a change and additional review of the available medical records did not reveal any instances which would indicate a specific time period at which the Veteran’s change in range of motion took place. It was unexpected that the Veteran would display a significant reduction in range of motion 3 years after the 2015 VA examination without an inciting event. Therefore, the examiner opined that the disability prior to June 3, 2018 remained in effect as of the 2015 VA examination. The Board finds the October 2020 VA examiner’s opinions to be highly probative as they are well-reasoned and based on a thorough review of the record. There is no evidence to the contrary. Based on the foregoing, the Board finds that the preponderance of the evidence is against awarding a higher initial rating in excess of 10 percent for the Veteran’s lumbar spine disorder prior to June 3, 2018. Namely, the record shows that, for this period, the Veteran’s lumbar spine was limited to flexion of no less than 65 degrees, with no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. As indicated by the October 2020 VA examiner, there was also no evidence of trauma or worsening to account for the change in symptomatology during the June 3, 2018 VA examination. The examiner stated that it would be unexpected that the Veteran would display a significant reduction in range of motion 3 years after the 2015 VA examination without an inciting event. Accordingly, there is no evidence to support a higher initial rating prior to the June 3, 2018 VA examination. The Board acknowledges the Veteran’s contentions that the June 2015 VA examination was insufficient because the examiner did not report an abnormal gait or abnormal spinal contour and, when the examination was conducted, he was on medication, which masked his symptoms. See August 2017 Appellate Brief. The Veteran also contended that the June 2015 VA examination was inadequate because it only lasted 10 minutes, the examiner did not allow the Veteran to report more detail regarding his back pain, the examiner asked the Veteran to bend further forward regardless of pain, and the examining room was not large enough to adequately evaluate his stride. See September 2015 VA Form 9. The Board notes, that while the June 2015 VA examination failed to provide the necessary information with regard to active/passive motion, weight/non-weight bearing, and flare ups, the examination was deficient in this regard only and, as discussed more fully below, such deficiency was corrected by the October 2020 VA medical opinion. Moreover, in spite of the Veteran’s contentions, there is no indication that the available results from the June 2015 VA examination were inadequate for rating purposes or that the VA examiner failed in his duties to provide to conduct the examination. Rather, the evidence shows that the results from the June 2015 VA examination were obtained by a qualified medical professional and were predicated on interview and physical examination of the Veteran. Lastly, with regard to the Veteran’s contention that his medication masked the true severity of his disability, the Board notes that, while the Veteran is competent to report his symptoms, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his lumbar spine disorder and the effects of medication. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, the October 2020 VA examiner considered the effects of the Veteran’s lumbar spine disorder during flare ups, presumably without the effects of medication, and determined that there would be additional decreased range of motion estimated at 65 degrees of flexion for the 2015 VA examinations. Accordingly, remand for another VA medical opinion to consider the Veteran’s pre-June 3, 2018 lumbar spine range of motion without the effects of medication would not be useful in this case. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). The Board acknowledges that while the pre-June 3, 2018 VA examinations do not necessarily comply with the United States Court of Appeals for Veterans’ Claims (Court’s) holding in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the October 2020 VA medical opinion corrects any such deficiencies. As indicated above, the October 2020 VA examiner clarified that, if active range of motion was tested while non-weight bearing, the results would almost be the same if not completely normal and passive range of motion testing would not be recommended and would not be expected to be any worse. The examiner also indicated that the consistency demonstrated on the VA examinations from 2008, 2012, 2014, and 2015 supported the reliability that the documented ranges of motion were an accurate reflection of the Veteran’s status. With regard to flare-up episodes, the October 2020 VA examiner provided an estimation of the additional range of motion loss for the flare ups that occurred during the 2014 and 2015 VA examinations. During the 2012 and 2015 VA examinations it was determined that the examinations were neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time and pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. With regard to the other 2008 and 2014 VA examinations, the October 2020 VA examiner clarified that repetitive testing did not result in any loss of range of motion in any plane, which would support the lack of further degradation in range of motion or functional loss with repetitive use. As the October 2020 VA examiner provided clarification regarding the lumbar spine range of motion for active and passive motion, with weight bearing and non-weight bearing, and during flare ups and repeated use over time, the Board finds that such opinion satisfies the requirements of Sharp and Correia. Therefore, a remand for an additional examination/medical opinion would serve no useful purpose. Soyini, 1 Vet. App. at 546. REASONS FOR REMAND 1. Entitlement to a separate rating for bilateral lower extremity radiculopathy is remanded. The record suggests the presence of bilateral lower extremity radiculopathy associated with low back pain prior to the Veteran’s June 3, 2018 VA examination. See December 2015 VA Treatment records. However, during such examination no radiculopathy was documented. Therefore, the record remains unclear as to whether the Veteran has neurological abnormalities, to include left and right lower extremity radiculopathy, that are associated with his service-connected lumbar spine disorder. Accordingly, remand is warranted for a clarification opinion to address the etiology of any neurological abnormalities. 2. Entitlement to a TDIU is remanded. Consideration of entitlement to a TDIU is dependent upon the impact of the Veteran's service-connected disabilities on his ability to obtain or retain substantially gainful employment. The matter of a TDIU is, thus, inextricably intertwined with the Veteran's claim remanded herein. Accordingly, remand of the inextricably intertwined TDIU issue is also required. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Obtain a VA medical opinion from an appropriate VA examiner to determine the nature and etiology of any neurological abnormalities associated with the Veteran’s service-connected lumbar spine disorder (a physical examination may be conducted, if deemed necessary). The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner. a) The examiner should provide diagnoses for any neurological abnormalities present during the applicable appeal period. In rendering a diagnosis, the examiner should consider and discuss the December 2015 VA treatment records that show evidence of radicular symptoms right greater than left. b) The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed neurological abnormality is a residual associated with the Veteran’s lumbar spine disorder. c) If, and only if, the examiner determines that the Veteran’s diagnosed neurological abnormality is etiologically related to the Veteran’s lumbar spine disorder, to the extent possibly, the examiner should identify any nerve(s) affected and determine if that symptomatology is best characterized as "slight," "moderate," "moderately severe," or "severe" incomplete paralysis or complete paralysis. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Metzner, Paul 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.