Citation Nr: 21015126 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 18-23 978 DATE: March 16, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent for lumbosacral strain associated with trigger points/muscle spasms is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent for right knee strain is remanded. Entitlement to an initial compensable disability rating for right hip strain based on limitation in flexion is remanded. Entitlement to an initial disability rating in excess of 10 percent for right hip strain is remanded. FINDING OF FACT Throughout the entire period on appeal, forward flexion of the lumbar spine has not been limited to 30 degrees or less and there has been no favorable ankylosis. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 20 percent for lumbosacral strain associated with trigger points/muscle spasms have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from February 1979 to February 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from July 2016, November 2016, and June 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in New York, New York. In a January 2020 Board decision, the Board granted an initial disability rating in excess of 20 percent for the period prior to August 29, 2017 and denied a rating in excess of 20 percent thereafter, denied an initial disability rating in excess of 10 percent for a right knee strain, denied a compensable disability rating for right hip strain based on limitation of flexion, and denied an initial disability rating for a right hip strain. The Veteran appealed the January 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Order, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to vacate and remand the portion of the January 2020 Board decision denying increased ratings for the claims as stated above. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, 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 is resolved in favor of the veteran. 38 C.F.R. § 4.3. 1. Entitlement to an initial disability rating in excess of 20 percent for lumbosacral strain associated with trigger points/muscle spasms The Veteran generally contends that the symptoms of his lumbar spine disability warrant an increased disability rating. The Veteran has been in receipt of an initial 20 percent rating for lumbosacral strain associated with trigger points/muscle spasms effective from September 13, 2016 under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237. The Board notes that during the pendency of the Veteran’s increased rating claim on appeal, the rating criteria for evaluating arthritis and certain musculoskeletal disabilities were amended in November 2020, December 2020, and February 2021. See 85 Fed. Reg. 76,453-76,469 (Nov. 30, 2020); 85 Fed. Reg. 85,523-85,524 (Dec. 29, 2020); 86 Fed. Reg. 8,142-8,144 (Feb. 4, 2021). The change, effective February 7, 2021, added certain diagnostic codes and amended the rating criteria for several diagnostic codes listed under 38 C.F.R. § 4.71a. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board may not apply a current regulation prior to its effective date, unless the regulation specifically provides otherwise. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 307 (1991) to the extent that it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). However, the Board is not precluded from applying prior versions of the applicable regulations to the period on or after the effective date of the new regulation if the prior versions were in effect during the pendency of the appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); see also DeSousa v. Gober, 10 Vet. App. 461, 467 (1997).” As there is no indication that the above amendments were intended to be applied retroactively, the changes do not apply before the date they became effective. See Kuzma, 341 F.3d at 1329. For the entire appeal period, the criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. See 38 C.F.R. § 4.71a. The General Rating Formula provides that with or without symptom such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings are assigned: A 20 percent rating is warranted for the 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 assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. The regulations applicable to rating musculoskeletal disabilities require that VA must also consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (‘flare-ups’) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45. For VA purposes, unfavorable ankylosis is a condition in which 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. 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (5). In a September 2016 VA Form 21-4138 Statement in Support of Claim, the Veteran reported the he had constant spasms and pain just above the right hip. He reported he walked with a limp, stood leaning to the right, and had spasms that were so bad that the back locked up. He reported he had received injections to treat his spasms. He reported that coughing, sneezing, or laughing exacerbated his pain. During an October 2016 VA examination, the Veteran reported that his back locked up and had muscle spasms. He reported he was prescribed muscle relaxants. He stated he did not use hot or cold packs, but that he would stand in the hot shower and soak in Epsom salts; and hot water at other times seemed to help. The Veteran found dull pain and muscle spasms especially when flexed forward or lifting over 30 pounds, or with prolonged sitting. He did not have any epidurals, physical therapy, nor any surgical procedures to his lower back. He had injections of muscle relaxant in the emergency room for muscle spasms in his back. He denied flare-ups of the low back. The Veteran reported having functional loss or functional impairment and described pain to prolonged sitting and lifting heavy objects over 30 pounds, as well as more pain when walking upstairs or flexed forward. Upon physical examination, range of motion measurements of the low back were as follows: forward flexion to 80 degrees and extension to 30 degrees. Range of motion itself did not contribute to a functional loss. Pain was noted on examination and caused functional loss. Pain was noted on forward flexion and bilateral lateral rotation. There was no evidence of pain with weight-bearing. The Veteran had palpable muscle spasms (trigger points) in several locations, however it is notable that bilateral paraspinous muscles had prominent palpable trigger points (muscle spasms). The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time and the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use overtime. The examiner could not say without resorting to mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. He noted that the Veteran would have additional limitation during joint flare, or when the joint was used repeated over a period of time, manifested primarily by pain and difficulty continuing joint movement. Further, the examiner noted additional loss of range of motion could not be ascertained since the primary disability is related to pain and loss of repetitive use rather than loss of range of motion. The Veteran had muscle spasm that did not result in an abnormal gait or abnormal spinal contour. He did not have guarding. Additional factors contributing to the disability included interference with sitting and muscle spasms that were worse with prolonged sitting. Muscle strength testing was normal. The Veteran did not have muscle atrophy. Reflex examination results were normal. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis. The Veteran did not have IVDS. The Veteran denied the use of any assistive device as a normal mode of locomotion. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to his low back disability. Diagnostic imaging studies did not document degenerative or traumatic arthritis. The examiner noted the Veteran’s low back disability impacted his ability to work, and noted the Veteran’s low back disability would limit the Veteran from lifting over 35 pounds at the waist, bending, twisting or turning at the waist due to decreased range of motion, pain, and muscle spasms. An August 2017 private treatment record indicates that the Veteran had flare-ups that impacted function of the lumbar spine; functional loss or impairment of the lumbar spine; painful range of motion; pain on repetitive motion; pain in weight-bearing or in non-weight-bearing; pain on palpation or localized tenderness; presence of guarding or muscle spasms or lumbar spine; abnormal gait; less movement than normal; weakened movement; excess fatigability; swelling; instability of station; disturbance of locomotion; interference with standing; interference with sitting; presence of radiculopathy in the right sacroiliac joint and right foot. Range of motion measurements of the low back were as follows: forward flexion to 90 degrees and extension to 15 degrees. During an October 2017 VA examination, the Veteran reported constant pain in the low back, with pain that was worse on the right side. He reported that the severity of the pain depended on activity. The pain severity ranged from 5 to 9 out of 10 pain intensity. He reported his back would lock up at times. He reported intermittent numbness in the right lower back. He denied radiation of pain from his back to his legs. He reported he saw a chiropractor every 2 weeks and was awaiting consult from the VA for those visits. He did not have epidurals and did not have physical therapy. He did not have surgical procedures to the lower back. He stated he went to the emergency room for his low back earlier that year. He denied flare-ups of the low back. The Veteran reported having functional loss or functional impairment, and described pain with bending, pushing, pulling or lifting more than 20 pounds. He reported prolonged standing and walking caused pain. Upon physical examination, range of motion measurements of the low back were as follows: forward flexion to 50 degrees and extension to 30 degrees. Range of motion itself was not shown to contribute to a functional loss. Pain was noted on examination and caused functional loss. Pain was noted on forward flexion, right lateral flexion, right lateral rotation, and left lateral rotation. There was no evidence of pain with weight-bearing. The Veteran had tight lumbar paraspinal muscles with tenderness on the right side. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time and the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use overtime. The examiner could not say without resorting to mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. The Veteran had muscle spasm that did not result in an abnormal gait or abnormal spinal contour. The Veteran did not have guarding. Additional factors contributing to the disability included disturbance of locomotion and interference with standing. Muscle strength testing was normal. The Veteran did not have muscle atrophy. Reflex examination results were normal. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis. The Veteran did not have any other neurologic abnormalities or findings related to his low back disability (such as bowel or bladder problems or pathologic reflexes). The Veteran did not have IVDS. The Veteran denied the use of any assistive device as a normal mode of locomotion. Diagnostic imaging studies did not document degenerative or traumatic arthritis. The examiner noted the Veteran’s low back disability impacted his ability to work, and noted the Veteran was self-employed and worked alone. The examiner noted that after cleaning carpet, he would not be able to do anything for 2 days. The Veteran reported having to pull large carpet cleaner upstairs at times and move furniture, that would cause back pain. There was no evidence of pain on passive range of motion testing. There was no evidence of pain when the back was used in non-weight-bearing. During a September 2020 VA examination the Veteran described his current symptoms as muscle spasms, stiffness of back and legs, and soreness in back and ribs. The Veteran reported flare-ups of the thoracolumbar spine. He reported pain in his lower back and left hips when he had a flare up and his whole body would get stiff and tight. He reported functional loss/impairment described as the inability to move for sometimes a day or longer. He reported that he has to take pills and a heating pad right away to get any relief to start. Initial range of motion testing revealed forward flexion to 75 degrees and extension to 18 degrees. Range of motion itself did not contribute to a functional loss. Pain was noted on examination and caused functional loss on forward flexion, extension, right lateral flexion, and right lateral rotation. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue described as moderate. There was evidence of pain with weight-bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions. Pain, fatigue, weakness contributed to functional loss described in terms of range of motion as forward flexion to 72 degrees and extension to 14 degrees. The examination was not conducted during a flare up. Pain, fatigue, and weakness caused functional loss described in terms of range of motion as forward flexion to 72 degrees and extension to 14 degrees. The Veteran had muscle spasm resulting in abnormal gait or abnormal spine contour. There was no guarding. Additional factors contributing to disability include weakened movement due to muscle or peripheral nerves, disturbance of locomotion, interference with sitting, and interference with standing. The Veteran had weakness, pain, and spasms when standing or walking for extended periods of time. The Veteran does not have muscle atrophy. There was no radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis of the spine. The Veteran did not have IVDS of the thoracolumbar spine. The examiner noted that the Veteran’s lumbar spine condition impacts his ability to work. He would have difficulty with pushing, pulling, carrying, lifting, bending, squatting, standing, or walking for extended periods of time in certain work environments. There would be no issues with a sedentary position related to this condition. The Board notes that the Veteran has received treatment at the VA Medical Center and from private providers for various disabilities, to include his low back. However, a review of those records does not show that the Veteran has symptoms of his disability that are worse than those described above. Upon review of the evidence of record, the Board finds that an initial disability rating in excess of 20 percent for a lumbar spine disability is not warranted. The Veteran’s symptomatology for his lower back condition included objective pain, pain upon movement, flare-ups, and functional impairment. His forward flexion was, at worst, 50 degrees, and his extension was, at worst, to 20 degrees. This is taking into consideration the estimated limitation in range of motion during flare-ups and considering his functional impairment due to pain. There is no indication given by the Veteran that his flare-ups were of such severity as to rise to the level that warrant a rating of 40 percent on the basis of painful motion. Significantly, the Veteran’s self-reported history appears internally inconsistent. A private examination from 2017 reports that the Veteran reported flare ups of the low back. However, months later in October 2017, the Veteran reported that he did not have any flare ups. He began to consistently report flare ups of the lower back in 2020. He did not describe flare-ups that significantly limited his functional ability on any consistent basis as to find additional loss of motion rising to the degree that would warrant a rating of 40 percent. While he reported that a flare-up could render him in bed for a full day, he noted that his flare-ups were relieved by over the counter medication and a heating pad. Additionally, even taking into consideration the Veteran’s functional loss and impairment due to the extent of his pain (and painful motion), weakness, and fatigue, his symptoms are not severe enough to warrant a 40 percent disability rating under the general rating formula. The evidence reflects that the Veteran has complained of functional loss/impairment described as limitation in walking/sitting for prolonged periods of time due to pain and limitation in bending, pushing, pulling, and lifting greater than 20 pounds due to pain. Additionally, the examinations consistently reflect that pain was noted on examination that caused functional loss/impairment (although range of motion itself did not contribute to functional loss) and in September 2020, the examiner specifically noted that pain was noted on examination and caused functional loss. Additionally, pain, fatigue, and weakness caused function loss described in terms of range of motion as forward flexion to 72 degrees and extension to 14 degrees. The described functional loss/impairment from the Veteran and the estimated range of motion are no analogous with forward flexion to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Even giving the benefit of the doubt to the Veteran, there is no indication based upon the Veteran’s statements that functional loss/impairment and flare-ups were severe enough to result in flexion limited to such a degree that would warrant the assignment of a rating in excess of 20 percent. The above symptomology for the Veteran’s lumbar spine disability more nearly approximates the 20 percent criteria. Even when considering functional loss as set forth in 38 C.F.R. § 4.40 and 4.45, his disability picture is not more closely approximated by the 40 percent criteria, to include consideration of additional motion loss due to pain during flare-ups. As a result, an initial rating in excess of 20 percent for the Veteran’s lumbar spine condition must be denied. Consideration has been given to assigning a rating under Diagnostic Code 5243, for degenerative disc disease resulting in Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes rather than limitation of motion. However, there is no evidence of record indicating that the Veteran has IVDS or experiences incapacitating episodes which require medically prescribed bed rest. He reported that he could be bed ridden due to flare-ups; however, he stated this was alleviated by over the counter medication and heating pads. Therefore, a rating based on incapacitating episodes is not warranted, and the Veteran is properly rated based on pain and limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Consideration of ratings for any objective neurological abnormalities has also been given, but the Board concludes that there is no medical evidence to support a diagnosis of any such related condition. See 38 C.F.R. § 4.71a, Note 1. In this regard, the Board acknowledges the Veteran’s statement of radiating pain in his lower extremities but finds this evidence of limited probative value. While the Veteran, as a lay person is competent to report observable symptoms, such as pain, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the diagnosis of any neurological complications of his low back disability, especially in light of the VA examiners’ conclusions to the contrary and the fact that the evidence fails to demonstrate any such diagnosis upon medical testing. See id. The Veteran’s belief that he is entitled to higher ratings for his back disability is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings on the VA examination reports and treatment records that were recorded following physical examinations of the Veteran, than to the Veteran’s general belief that he is entitled to higher ratings. As the preponderance of the evidence is against any increase, the benefit of the doubt rule is not applicable in this situation. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, the preponderance of the evidence is against an initial rating in excess of 20 percent for the service-connected lumbosacral strain associated with trigger points/muscle spasms. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for right knee strain, entitlement to an compensable disability rating for a right hip strain based on limitation in flexion, and entitlement to an initial disability rating in excess of 10 percent for a right hip strain is remanded. In the Joint Motion, the parties agreed that the Board erred when it relied on inadequate examinations and providing an inadequate statement of reasons or bases to support its decision based on these examinations. In this regard, for an examination of the musculoskeletal system to be adequate under 38 C.F.R. § 4.40 , the medical examiner “must be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time.” DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). If feasible, the examiner should portray such determinations “in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Id.; see Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Before an examiner can conclude that such estimates cannot be provided without resorting to speculation, the examiner must elicit and consider information regarding functional loss of flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2017). The October 2017 VA examinations were inadequate because the examiner did not evaluate his hip and knee conditions adequately under Sharp. Id. The examiners each stated that due to the inability to observe the Veteran with repeated use over time, or in the case of the knee and hip conditions, during a flare-up, the examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time or with flare-ups. Sharp requires the examiner to consider all procurable and assembled date and “explain the basis for his or her conclusion that a non-speculative opinion cannot be offered” because “it must be apparent that the inability to provide an opinion reflects the limitation of knowledge in the medical community at large and not a limitation of the individual examiner.” Id. Here, it is unclear whether the basis of the examiner’s opinion was due to limitation of knowledge in the medical community at large or the examiner’s own limitation. The parties also noted that, in a subsequent decision on this matter, the Board should adequately address whether functional loss, to include during a flare-up, supports a higher rating. Therefore, the parties found that an additional VA examination is needed. See Sharp, 29 Vet. App. at 33-35 (finding inadequate a medical opinion that “declined to offer an opinion as to functional loss during flares 'without directly observing function under these circumstances” because the examiner “failed to ascertain adequate information” and did not provide an estimate or explain why the examiner could not do so). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate physician to evaluate the current severity of his service-connected right knee strain. All indicated tests and studies should be performed and findings reported in detail. The claims folder must be made available to the examiner for review prior to examination. The examination should be conducted in accordance with the current disability benefits questionnaire. The examiner should discuss any functional impairment that occurs during flare-ups, including estimating any additional limitation of motion. To the extent possible, they should address the frequency, duration, characteristics, and severity of flare-ups (through an examination, review of the medical records, and/or history provided by the Veteran). If examination results not provided during a flare-up are unavailable, and the examiner cannot otherwise opine as to functional loss, they must provide an explanation. If feasible, the examiner should portray such determinations “in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Before an examiner can conclude that such estimates cannot be provided without resorting to speculation, the examiner must elicit and consider information regarding functional loss of flare-ups. Furthermore, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing and during flare-ups can be estimated for the other VA examinations conducted during the appeal period. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, they should clearly explain so in the report. 2. Schedule the Veteran for a VA examination with an appropriate physician to evaluate the current severity of his service-connected right hip strain. All indicated tests and studies should be performed and findings reported in detail. The claims folder must be made available to the examiner for review prior to examination. The examination should be conducted in accordance with the current disability benefits questionnaire. The examiner should discuss any functional impairment that occurs during flare-ups, including estimating any additional limitation of motion. To the extent possible, they should address the frequency, duration, characteristics, and severity of flare-ups (through an examination, review of the medical records, and/or history provided by the Veteran). If examination results not provided during a flare-up are unavailable, and the examiner cannot otherwise opine as to functional loss, they must provide an explanation. If feasible, the examiner should portray such determinations “in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Before an examiner can conclude that such estimates cannot be provided without resorting to speculation, the examiner must elicit and consider information regarding functional loss of flare-ups. Furthermore, the VA examiner should comment as to whether range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing and during flare-ups can be estimated for the other VA examinations conducted during the appeal period. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, they should clearly explain so in the report. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.