Citation Nr: 21027910 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 15-21 247 DATE: May 7, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for service-connected lumbar strain is denied. FINDING OF FACT The Veteran's service-connected lumbar strain does not manifest with forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 20 percent for service-connected lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from September 1959 to August 1962, and from January 1991 to March 1991. The Veteran also had additional service in the U.S. Army Reserves. This matter before the Board of Veterans' Appeals (Board) is on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas (Agency of Original Jurisdiction (AOJ)). The Veteran testified at a Travel Board hearing before the undersigned in May 2018. A transcript of the proceeding is of record. This matter was most recently before the Board in August 2020. The Board remanded on the issue of entitlement to a disability rating in excess of 20 percent for service-connected lumbar strain to seek a medical opinion that considers the Veteran's demonstrations of severe loss of motion due to flare-ups and repetitive use. A review of the file reflects that a new examination was completed in September 2020 and another medical opinion one that documented the Veteran's demonstrations of loss of motion due to flare-ups and repetitive use was obtained. In a Post-Remand Brief dated April 2021, the Veteran's representative challenged the adequacy of the VA examination. It is asserted that the VA examiner, acknowledged to be a medical doctor, was not competent to perform the examination "the examiner, [T.B., MD), has no identified competence or expertise in the relevant specialty of Orthopedic Medicine (orthopedist)." It is further argued as follows: Unfortunately, the examiner is not shown to have any particular expertise, training, or competence in commenting on Orthopedic disorders. Rather, the examiner's specialty, if any was not noted. Absence of competence renders her assessment no more probative than the appellant's lay assertions that there is worsening of his back condition. The Board's prior remand instructed the AOJ to schedule an "orthopedic examination" but did not specify a particular specialist. Here, a medical doctor performed an orthopedic examination consisting of findings for range of motion, functional impairment, guarding and muscle spasm, muscle strength testing, reflexes, neurologic abnormalities, review of imaging studies, etc. The representative has not cited to any competent evidence suggesting that a medical doctor is not qualified to conduct a basic orthopedic examination. A doctor is defined as "[a] learned man; one qualified to give instruction of the highest order in a science or art, particularly, one who has received the highest academical degree in his art or faculty, as, a doctor of law, medicine, or theology. In colloquial language, however, the term is practically restricted to practitioners of medicine; i.e., physicians, surgeons." BLACK'S LAW DICTIONARY WITH PRONUNCIATIONS, 481 (6th Ed. 1990). The Board rejects the argument that a medical doctor is not qualified to perform a basic orthopedic VA examination of the spine, and the language of the prior remand directive did not specifically request a specialist. The Board further rejects the basic premise that an individual who possesses the highest academical degree in medicine is not more competent than a lay individual to provide clinical findings and medical opinions. Notably, the Veteran's representative has not requested VA to disclose the actual credentials of the 2020 VA examiner or specifically challenged whether this individual was actually a medical doctor. The Veteran's representative also cited the case of Sharp v. Shulkin, 29 Vet. App. 26 (2017) wherein the Court stated: "the VA Clinician's Guide makes explicit what DeLuca clearly implied: it instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves." Id. at 6. Even when the claimant is not experiencing a flare-up at the time of the examination, a VA examiner must elicit relevant information as to the Veteran's flares or ask him [or her] to describe the additional functional loss, if any, he [or she] suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record-including the veteran's lay information-or explain why [he or] she could not do so." The Board remanded this case for an examination which complied with Sharp, specifically requesting the examiner to have the Veteran demonstrate what he perceived as severe motion loss. At the September 2020 examination, the Veteran demonstrated to the examiner his ranges of loss of motion during flares which ranged from 45 degrees to 90 degrees. The Veteran himself described variations in his limitations inasmuch as he specifically stated that his motion "varies from one episode to another, and even from one point in time to another during flares. He demonstrates that he might be able to flex approximately 45 degrees ('half-way') before the back pain stops him at one point, but if he waits a few minutes and reattempts, may be successful in full flexion (despite ongoing increased pain intensity) in order to pick something up from the floor." The examiner found that, from this description it was not medically practicable to assign quantitative or numeric values for range of motion limitations during flares. The Board finds that the examiner's assessment substantially complies with the Board's prior remand directives and the Sharp requirements. In this respect, the examiner identified the approximate ranges of motion loss during flares between 45 to 90 degrees which substantially varied and the approximate time frame the motion loss exists. The examiner found no medical reason to reject the Veteran's description, and the record now contains a sufficiently clear medical description of the Veteran's "severe" motion loss from the Veteran himself. The Board thus finds that the AOJ substantially complied with the remand directive in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), and finds that the September 2020 examination is adequate for rating purposes. The Board notes that, effective February 7, 2021, the applicable rating criteria for certain musculoskeletal disorders were revised. 85 Fed. Reg. 76453 (Nov. 30, 2020). When regulations are revised during the course of an appeal, the Board is generally required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the Veteran. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (emphasis added). The final rule did not specifically permit retroactivity of the changes. The Board has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). These changes included a revision to DC 5242 to encompass "Degenerative arthritis, degenerative disc disease other than IVDS" while revising DC 5243 as intervertebral disc syndrome (IVDS) only when there is disc herniation with compression and/or irritation of the adjacent nerve root. 85 Fed. Reg. 76453 (Nov. 30, 2020). VA considers these non-substantive changes which clarify the meaning of IVDS. See 82 Fed. Reg. 35719, 35720 (Aug. 1, 2017). As such, the Board finds that this non-substantive change does not require AOJ review in the first instance as it has no practical application to the facts of this case. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 1. Entitlement to a disability rating in excess of 20 percent for service-connected lumbar strain Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 12627 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Veteran's lumbar strain is rated as 20 percent disabling under DC 5237, which applies the General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees, extension is to 30 degrees, left and right lateral flexion are to 30 degrees, and left and right lateral rotation are 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. 38 C.F.R. § 4.71a, General Rating Formula, n. 1. Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply to lumbar spine disabilities. An evaluation of 10 percent 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. An evaluation of 20 percent is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is 120 degrees or less; or if 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. 38 C.F.R. § 4.71a, DCs 5235-5243. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is limited to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine, is fixed in flexion or extension. 38 C.F.R. § 4.71a. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Provision 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). The provisions of 38 C.F.R. § 4.59 recognize that painful motion is an important factor of disability. Joints that are painful, unstable, misaligned or due to healed injury are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id. ; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). After thoroughly reviewing the evidence of record, the Board finds that an initial evaluation in excess of 20 percent is not warranted for the Veteran's lumbar strain. The Veteran first became service-connected for a lumbar strain following a July 2013 rating decision. The AOJ awarded a 20 percent disability rating for this condition, effective September 13, 2012 the date he filed his claim. In August 2013, he filed a Notice of Disagreement, contending that his back condition warranted a higher disability rating. A review of the record reveals the following as it pertains to the Veteran's lumbar strain. The Veteran filed his most recent claim for entitlement to service connection for a back condition in September 2012. In support of his claim, he provided a statement articulating that he injured his back in service when he fell and his back hit a flatcar. This statement was also signed and attested to by a fellow servicemember and notarized. The Veteran further explained that he was told at the time of this injury that he would experience problems with his back in the future. Civilian radiology records dated April 2010 reflected central spinal canal stenosis and neural foraminal canal stenosis of the lumbar spine. The physician acknowledged these findings were comparable to the findings of imaging taken one year prior, which included mild multilevel disc degeneration. CAPRI VA treatment records document complaints of back pain rated as a 5 on a 1-10 scale; in July 2012, he reported he had been experiencing this pain for about 5 years. In July 2013, the Veteran received a VA examination for his back. At that time, he was diagnosed with a lumbar sprain/strain, occurring in 1961, and present lumbar and sacroiliac arthritis. He reported flare ups lasting hours that sometimes occur daily, increasing his lumbar pain from a 3-4 out of 10 to an 8-9. Initial range of motion testing revealed forward flexion to 45 degrees (with no objective evidence of painful motion) and extension 30 degrees or greater. The author explained that pain could significantly limit his functional ability with flare ups or after repeated use over a period of time. However, he was unable to express range of motion in degrees because the Veteran could not replicate the range of motion. The Veteran was not found to have intervertebral disc syndrome and/or incapacitating episodes. Following this VA examination, the AOJ granted entitlement to service connection for a lumbar strain in a July 2013 rating decision, awarding a 20 percent disability rating. The Veteran filed a Notice of Disagreement in August 2013. CAPRI VA treatment records during this time period include references to back pain, but no range of motion testing was performed. It appears he completed physical therapy for his back, but continued to experience symptoms even after finishing his sessions. At his travel board hearing in May 2018, the Veteran testified to needing medication for his back and may possibly need surgery in the future due to the severe back pain. He used pillows for his back to get comfortable and often had difficulty doing things like putting his shoes on. In September 2018, the Board remanded the issue of entitlement to a disability rating in excess of 20 percent for service-connected lumbar strain to afford the Veteran the opportunity to present for a new examination. A second VA examination was performed in August 2019. The Veteran reported experiencing flare ups of the middle back and constant pain with flare ups of the lower back. During flare ups, he had difficulty getting out of bed in the morning, lifting, walking, climbing stairs, bending, and driving. Initial range of motion testing revealed forward flexion to 70 degrees and extension to 30 degrees. Pain was noted during the examination and was determined to cause functional loss, but the examiner was reportedly unable to describe in terms of range of motion because the examination did not occur during a flare up or after repeated use. The examiner indicated that the Veteran was unable to articulate any additional loss of range of motion during flare ups and repeated use, rendering the examiner unable to formulate an opinion. There was no evidence of pain on weight bearing. No ankylosis was present. Additional VA treatment records added to the file from this time period reflect that the Veteran received additional physical therapy for his back in March and April of 2020. During one such session, the physical therapist reported that he had "minimal" loss of flexion in the L-S spine, but a "major" loss of extension. Prior to receiving physical therapy, the Veteran was seen in the emergency room for worsening lower back pain radiating to his midback for one week. The Veteran's claim made its way to the Board once more in August 2020. However, the Board remanded once more for clarification regarding the extent of range of motion loss during flare ups and repetitive use, as the examiner merely documented that the Veteran experienced "severe" loss based on the Veteran's statements. The most recent VA examination was performed in September 2020. The Veteran said at that time that since the prior VA examination, he experienced constant pain in his back. Movements in certain positions aggravated the pain and approximately 2-3 times per week, the pain worsened and limited his motion. During flare ups, he had sharp pain to his lower back, which was relieved for a few hours by pain medication. The examiner wrote, "When asked to demonstrate any loss of movement associated with these flares, Veteran specifically states that this varies from one episode to another, and even from one point in time to another during the flares. He demonstrates that he might be able to flex approximately 45 degrees ('halfway') before the back pain stops him at one point, but if he waits a few minutes and reattempts, may be successful in full flexion (despite ongoing increased pain intensity)." The Veteran also reported functional loss with walking, bending, lifting, and carrying due to increased pain. Initial range of motion testing revealed forward flexion to 90 degrees and extension to 15 degrees. Pain was determined to cause limited functional ability during flare ups, but the examiner was unable to describe in terms of range of motions, stating: "Variability in pain during flares affects the degree of [range of motion] limitations. Veteran reports an unpredictable degree of restricted movement during flares. Available medical treatment records provide no [range of motion] measurements during flares. Due to variable symptoms, a quantitative estimation and/or assessment of [range of motion] limitations during flares cannot be accurately determined without direct observation." There was no evidence of pain with weight bearing, and passive range of motion and non-weight bearing assessments are inapplicable to spine conditions. Ankylosis of the spine was not observed. When addressing Sharp v. Shulkin criteria, the examiner explained: "History and examination of the Veteran, combined with a review of the available treatment records, provide no basis to offer additional losses of function or motion during flare ups or after repetitive motion over time beyond what is directly observed. Veteran's attempt to demonstrate [range of motion] limitations during flares (ranging from approximately 45 to 90 degrees of flexion) as requested by the Court yields inconsistent and variable results in accordance with the unpredictable and variable nature of his pain at that time. The subjective nature of Veteran's demonstrated movement limitations, in addition to the inconsistencies of such data in this case, makes it medically impracticable to assign quantitative or numeric values for [range of motion] limitations during flares." Based on the findings of the VA examinations as well as the information contained in the Veteran's CAPRI VA treatment notes, the Board finds that a 20 percent rating is the appropriate disability rating for his lumbar strain. A 40 percent evaluation is only warranted if forward flexion of the thoracolumbar spine is limited to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. The available evidence of record does not suggest that the Veteran's forward flexion is limited to 30 degrees or less even during flare ups. There is a medical description of "severe" motion loss which was not expressed in terms of degrees. As such, this description has probative value confirming motion loss during flares, but limited probative value concerning the actual extent of motion loss in degrees. The Veteran credibly reports functional limitations in activities such as walking, bending, lifting, and carrying due to increased pain which results in additional motion loss. At the September 2020 examination, the Veteran himself demonstrated that he experienced forward flexion to 45 degrees during flares, and this level of motion loss did not exist for an extended period of time. The Board has no reason to doubt the Veteran's own demonstration of motion loss at its worse. Even with consideration of functional motion loss during flares or repetitive use, the Board finds that the Veteran's lumbar motion loss has not met, or more nearly approximated, forward flexion limited to 30 degrees or less. Moreover, ankylosis has not been observed at any point during the pendency of the appeal. The Veteran himself demonstrated that his motion loss ranged from 45 degrees to 90 degrees during flares. He does not describe fixation of movement and the examinations have described active motion of the lumbar spine albeit limited at times. The Board further notes that the record contains no competent evidence of any neurologic complications from the service-connected lumbar spine disability. To the extent that the Veteran manifests IVDS, there is no evidence of incapacitating episodes as defined in VA's rating criteria which requires bed rest prescribed by a physician. Thus, a higher rating for any time during the appeal period based on the Formula for Rating IVDS Based on Incapacitating Episodes is not warranted. See Note (1) to DC 5243. As such, the Veteran is not entitled to a rating in excess of 20 percent for any time during the appeal period as the preponderance of the evidence is against the claim. To that end, the Board must deny the Veteran's claim for entitlement to a disability rating in excess of 20 percent for service-connected lumbar strain. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victoria A. Banis, Associate Counsel 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.