Citation Nr: 21028792 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-23 271 DATE: May 12, 2021 ORDER Entitlement to a 20 percent disability rating for lumbar myofascial strain prior to September 3, 2020 is granted. Entitlement to a disability rating in excess of 20 percent for lumbar myofascial strain from September 3, 2020 is denied. REMANDED Entitlement to a disability rating in excess of 10 percent prior to September 3, 2020 and in excess of 20 percent thereafter for right eye macular scar is remanded. FINDING OF FACT For the entire period on appeal, the Veteran's lumbar myofascial strain is manifested by forward flexion no worse than 50 degrees, with combined range of motion no worse than 150 degrees. There is neither ankylosis nor evidence of intravertebral disc disease (IVDS), nor of incapacitating episodes that requires bed rest prescribed by a physician, nor is there evidence of neurological manifestations related to the Veteran's disability. CONCLUSIONS OF LAW 1. The criteria for an increased 20 percent disability rating, but no higher, for lumbar myofascial strain prior to September 3, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. The criteria for a disability rating in excess of 20 percent for lumbar myofascial strain from September 3, 2020 have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served honorably on active duty with the United States Army from July 2011 to December 2014, including overseas service in Afghanistan. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2020. A transcript of the hearing is associated with the claims file. This case was most recently before the Board in October 2020, at which point the issues on appeal were remanded for additional development. The case has since returned to the Board for appellate consideration. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated based on specific criteria identified by Diagnostic Codes. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where there is a question as to which of two ratings should 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. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to a disability rating in excess of 10 percent prior to September 3, 2020 and in excess of 20 percent thereafter for lumbar myofascial strain The Veteran seeks increased ratings for his service-connected lumbar myofascial strain, currently rated 10 percent disabling prior to September 3, 2020, and 20 percent thereafter under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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 the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also Plate V. The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, 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 neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis). Id. The rating schedule also includes criteria for evaluating intervertebral disc disease (IVDS). When rated based on incapacitating episodes, a 10 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243. The Board notes the Veteran's lumbar back disability is currently rated using range of motion rather than IVDS. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." "The question of whether a particular medical issue is beyond the competence of a laypersonincluding both claimants and Board membersmust be determined on a case-by-case basis." Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). In this case, the Board is competent to observe that voluntary range of motion testing is going to be more favorable to the Veteran than involuntary range of motion testing. In DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1592 (32nd ed. 2012), range of motion redirects the reader to "exercise." Passive exercise "is motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient's own body." Id. at 658. Active exercise is "motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part." It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the Veteran's joint farther than he would be able to move it on her own. Therefore, active motion is more favorable to the Veteran, and the results of active motion testing were provided. Similarly, it is reasonable to conclude that non-weightbearing motion is less difficult than weightbearing motion. The competent evidence of record does not tend to indicate that the structural integrity of the Veteran's cervical spine is compromised in such a way that passive range of motion would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to test for limitation of motion on passive range of motion and in non-weight-bearing, or failure to provide specific measurements for such testing, is not prejudicial. The Board will therefore evaluate the Veteran's range of motion using the available findings of active range of motion and looking at all the relevant medical and lay evidence. Turning to the evidence, the Veteran was first afforded a VA back conditions examination in connection with his claim in August 2015. The examiner indicated that no records were reviewed in connection with the examination. The Veteran reported flare-ups of his lumbar myofascial strain and described them as hurting "really bad" and being unable to do much. He reported that because of his back disability, it hurt to sit for long periods or to stand and lift. Initial range of motion testing showed forward flexion to 70 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The Veteran's combined range of motion was 170 degrees. The examiner explained that the Veteran's abnormal range of motion contributed to functional loss by resulting in mildly increased time required to complete certain occupational tasks such as climbing, stooping, kneeling, and crouching, as well as decreased standing and ambulation potentially secondary to pain. The examiner indicated that pain was noted on examination and caused functional loss, and that pain was exhibited on all ranges of motion. There was no evidence of pain with weight bearing. There was pain on moderate palpation of the lumbar paraspinals consistent with the diagnosed lower back condition. The Veteran was able to complete repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examination did not take place immediately after repetitive use over time, and the examiner wrote that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner indicated that pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over a period of time. The examiner indicated that pain would cause this functional loss, but he was unable to describe in terms of range of motion. The examiner explained that "[t]heoretically repetitive use over a few minutes may result in a smaller loss of range of motion however repetitive use over a half hour to hour would result in a greater range of motion." The examination likewise did not take place immediately during a flare-up, and the examiner wrote that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups. The examiner indicated that pain, weakness, fatigability, or incoordination would significantly limit functional ability during a flare-up. The examiner indicated that pain would cause this functional loss, but he was unable to describe in terms of range of motion. The examiner explained that the Veteran did not indicate that flare-ups were always of the same intensity, which would suggest flare-ups ranging from a mild to severe magnitude with a corresponding difference in additional loss of range of motion: "[t]heoretically a very mild flare up may not reduce range of motion at all while an extremely severe flare up may prevent any movement whatsoever." The examiner also noted that the Veteran did not indicate a specific numerical loss of range of motion during either flare-ups or after repetitive use over time. The examiner did not provide findings for non-weightbearing or passive range of motion. The examiner indicated that the Veteran did not have guarding or muscle spasm of the thoracolumbar spine, but that an additional contributing factor of disability was less movement than normal. Muscle strength testing, reflex exam, and sensory exam were all normal. There was no ankylosis of the spine, and no IVDS of the thoracolumbar spine. The Veteran did not use any assistive devices. The examiner noted that imaging studies of the thoracolumbar spine had been performed and there was no arthritis documented. The examiner determined that the Veteran's lumbar disability would impact his ability to work: "[t]he functional impact of each condition is mildly increased time required to complete certain occupational tasks such as climbing, stooping, kneeling and crouching as well as decreased standing and ambulation potential secondary to pain however it is not a contraindication for him not to perform these tasks in most occupations." The Veteran was most recently afforded a VA examination in January 2021. The Veteran reported current symptoms of aching and pain, with current treatment of use of a transcutaneous electrical nerve stimulation (TENS) unit, heat cream, physical therapy, baclofen, ibuprofen, and lidocaine ointment. He reported that the impact of his disability was inability to lift anything heavy, bend, stand, or sit for extended periods. The Veteran reported flare-ups, which he described as severe, lasting weeks at a time, precipitated by washing dishes, running, lifting, exercise, and alleviated by ibuprofen, motrin, and pain medication. The Veteran did not report having any functional loss or functional impairment of the thoracolumbar spine. Initial range of motion testing showed forward flexion to 50 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. The Veteran's combined range of motion was 170 degrees. The examiner explained that the Veteran's range of motion was abnormal but did not contribute to functional loss. The examiner indicated that pain was noted on examination but did not cause functional loss, and that pain was exhibited on all ranges of motion. There was evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine, which the examiner described as "severe." The Veteran was able to complete repetitive use testing with at least three repetitions with no additional loss of function or range of motion. The examiner noted that the Veteran was not being examined immediately after repetitive use over time but that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner indicated that pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over a period of time. The examiner described range of motion after repeated use over time as the same as initial range of motion findings. The examiner indicated that the examination was being conducted during a flare-up. The examiner indicated that pain, weakness, fatigability, or incoordination would significantly limit functional ability with flare-ups. The examiner described range of motion during flare-ups as the same as initial range of motion findings. The examiner indicated that the Veteran did not have guarding or muscle spasm of the thoracolumbar spine, and there were no additional factors contributing to disability. Muscle strength testing, reflex exam, and sensory exam were all normal. There was no ankylosis of the spine, and no IVDS of the thoracolumbar spine. The Veteran did not use any assistive devices. The examiner noted that imaging studies of the thoracolumbar spine had been performed and there was no arthritis documented. The examiner determined that the Veteran's lumbar disability would impact his ability to work due to difficulty lifting heavy equipment, difficulty bending, difficulty standing for longer than four hours, and difficulty sitting for longer than one hour. The examiner indicated there was no objective evidence of pain on passive range of motion testing of the back, and there was no objective evidence of pain on non-weight bearing testing of the back. During his September 2020 Board hearing, the Veteran testified that his back was "terrible" and had gotten worse since his 2015 VA examination. He reported that his lower back hurts most of the time, and that he would have to move his body throughout the day to find comfortable positions. He testified that the TENS unit, lidocaine cream, and medications had not worked, but that he recently started injections, which helped. The Veteran further testified that there was a prospect that his low back disability might require surgery. He reported that he had stopped running due to back pain. VA treatment records show the Veteran frequently complained of and sought treatment for low back pain starting in July 2017, when he initially started receiving treatment through VA. The Veteran started complaining of severe low back pain at least as far back as November 2017. The Board notes that VA treatment records and the Veteran's Board hearing testimony suggest he received some private treatment for his low back prior to starting treatment at VA. In accordance with the Board's October 2020 remand instructions, VA contacted the Veteran to attempt to obtain copies of any outstanding private treatment records, but the Veteran responded that there were no private records and that all of his care was through VA. In any case, the Veteran's VA treatment records show the Veteran has undergone routine physical therapy in an attempt to treat his low back disability. Overall, after careful review of the record, the Board finds that the evidence supports assigning a 20 percent disability rating for the entire period on appeal, to include the period prior to September 3, 2020. The evidence shows that during the period, the Veteran's range of motion, even during flare-ups, was manifested by forward flexion no worse than 50 degrees, with combined range of motion no worse than 150 degrees. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Board has considered whether a higher rating is warranted based on evidence of ankylosis, but the Veteran was not found to have ankylosis at any point during the period on appeal. Under the applicable Diagnostic Code, a higher rating would require forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spinemanifestations that are not shown by the available evidence. The Board has also considered whether a higher rating is warranted for IVDS. However, the evidence does not show that the Veteran has been found to have IVDS at any point during the period on appeal, nor does it show incapacitating episodes that requires bed rest prescribed by a physician. Indeed, both the August 2015 and January 2021 VA examiners indicated that the Veteran did not have IVDS. In finding that a 20 percent disability rating is warranted for the entire period on appeal, the Board acknowledges that the August 2015 examination report showed active range of motion testing results commensurate with a 10 percent disability rating. However, the examiner did not review the Veteran's claims file in connection with the examination and did not conduct range of motion testing for pain on both active and passive range of motion and in weight-bearing and non-weightbearing. Further, although the Veteran reported experiencing significant flare-ups, the examiner did not attempt to estimate additional loss of function with flare-ups. For these reasons, the Board finds that the examination report is inadequate for rating purposes. Additionally, the Board notes that VA treatment records show the Veteran complained of "severe" low back pain dating at least as far back as November 2017. Additionally, the Board has considered whether a separate rating is warranted for any neurological component of the Veteran's lumbar spine disability, under 38 C.F.R. § 4.71a, General Rating Formula, Note (1). However, the evidence does not show that the Veteran has had any neurological manifestations of his lumbar spine disability during the period on appeal. Indeed, both the August 2015 and January 2021 VA examiners noted that there were no neurologic abnormalities or findings related to a thoracolumbar spine condition. Accordingly, a separate rating for neurological manifestations is not warranted. The Board acknowledges the Veteran's statements about the severity of his symptoms, including that his back disability causes him constant pain and limits his ability to sit for prolonged periods of time. While the Veteran is competent to testify as to his symptoms, he is not competent to opine on matters requiring medical knowledge, such as the severity of a lumbar spine disability condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For these reasons, the Board finds that a 20 percent rating, but no higher, is appropriate for the period on appeal. To this limited extent, the Veteran's claim for an increased rating for the period prior to September 3, 2020 is granted. However, his claim for a disability rating in excess of 20 percent for the period from September 3, 2020 is denied. REASONS FOR REMAND For the reason discussed below, the Veteran's claim of entitlement to a disability rating in excess of 10 percent prior to September 3, 2020 and in excess of 20 percent thereafter for right eye macular scar must be remanded for additional development. The Board notes that the Veteran underwent visual field testing during his August 2015 VA examination. In the remarks section of the examination report, the examiner wrote that visual field testing was performed using Goldmann's equivalent III/4e target. The examiner indicated that the Veteran did not have a visual field defect but later noted that he had a subjective complaint of diminished central vision. Unfortunately, the Goldmann visual field charts were not included with the examination report and are unavailable for review. Remand is warranted to attempt to obtain these records, as they are potentially relevant to the Veteran's claim for an increased rating for his service-connected eye disability. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file the Goldmann visual field charts from the Veteran's August 2015 VA eye examination. 2. Thereafter, readjudicate the issue on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. T. Raftery, 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.