Citation Nr: 21030145 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 09-50 854 DATE: May 17, 2021 REMANDED Entitlement to an effective date prior to May 1, 2000 for the award of a compensable evaluation for a service-connected lumbosacral strain is remanded. Entitlement to an increased rating for a service-connected lumbosacral strain, currently rated as 10 percent disabling between May 1, 2000 and August 9, 2007, 20 percent disabling between August 9, 2007 and March 31, 2008, and 40 percent disabling since March 31, 2008, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1982 to July 1992. This case comes to the Board from a July 2008 decision of the Agency of Original Jurisdiction (AOJ), which increased the rating assigned to the Veteran's service-connected lumbosacral strain from zero percent to 10 percent. The Veteran timely appealed the amount of the increase. Since then, the disability rating has been increased and the effective date of the increase has been moved forward. The Veteran has not, however, expressed satisfaction with either the amount of the increase or the most recently assigned effective date, which means both issues remain part of this appeal. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). In July 2012, the Veteran testified before a Veterans Law Judge (VLJ) who has now been appointed as the Board's Chairman. A transcript of the hearing is of record. The law prohibits the Chairman from participating in a proceeding as an individual member, but she may participate in a proceeding assigned to a panel. The law also provides a veteran the option of additional hearing(s) before the additional two VLJs assigned to the panel. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). An October 2019 letter explained this to the Veteran and offered him the opportunity to have additional hearings before the two other VLJs on this panel. Because he did not respond to the letter, the Board may proceed without an additional hearing. This appeal has a long procedural history. In May 2016, the Board denied an earlier effective date for the Veteran's award of a compensable rating and, for the periods between January 17, 2002 and August 8, 2007 and between September 23, 2010 and May 12, 2014, denied his increased rating claims, while remanding his claim for an increased rating for the period since May 12, 2014. After further proceedings before the United States Court of Appeals for Veterans Claims (Court), counsel for the parties filed a Joint Motion for Remand (JMR) in April 2017, asking the Court to vacate the May 2016 Board decision. By granting the JMR, the Court vacated the Board's denial of the earlier effective date and increased rating claims and returned those issues to the Board. The Board previously remanded these issues for further development. Although the Board regrets the need for further delay, another remand is necessary to arrange an adequate examination of the Veteran's spine. The AOJ obtained the most recent VA examination report for the spine in April 2017. When evaluating increased rating claims for service-connected joint disabilities, VA examiners have a duty to elicit information from the Veteran about the condition of the relevant joints after repeated use over time and during periods when the symptoms of the disability are at their worst ("flare-ups"). See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Although the April 2017 examiner reported the results of range of motion tests, she wrote that she could not estimate the range of motion, in degrees, for the Veteran's thoracolumbar after repeated use over time or during flare-ups, indicating that the requested estimates would require speculation. It is unclear whether the examiner attempted to elicit information from the Veteran about the extent of range of motion after repeated use or during flare-ups. Thus, the report failed to comply with Sharp. As noted, the Board has remanded this case since April 2017 without seeing the need for a new examination. Until very recently, an examiner's failure to comply with 38 C.F.R. §§ 4.40, 4.45, 4.59 and Sharp was considered harmless error when, as in this case, the Veteran has been awarded the highest rating authorized for the relevant joint based on limited motion and the criteria for an even higher rating require ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). But this understanding of the law is inconsistent with the Court's recent decision in Chavis v. McDonough, ___ Vet. App. ___; 2021 U.S. App. Vet. Claims LEXIS 660 (decided April 16, 2021). Chavis suggests that the Veteran in this case could potentially be eligible for a rating higher than 40 percent if weakened movement, excess fatigability, incoordination, and pain on movement during flare-ups cause him to experience the "functional equivalent" of ankylosis. Id. Based on this understanding of 38 C.F.R. §§ 4.40 and 4.45, the Board cannot find that the April 2017 examiner's failure to provide requested estimates of range of motion during flare-ups was harmless error. During the hearing, the Veteran testified that, during flare-ups, he was essentially incapacitated for approximately 15 days in 1999 and for about 20 days per year since 2001. Post-service VA treatment records apparently describe a flare-up in August 2007. He told his primary care physician that his back symptoms prevented him from working "all week" and that "he was unable to bend over but that has improved." An adequate VA examination report, one that complies with Sharp and includes a summary of statements from the Veteran about the details of his back condition during flare-ups, could help the Board decide whether, during these incidents, the Veteran was experiencing the functional equivalent of ankylosis. The earlier effective date claim is inextricably intertwined with the increased rating claim. Many earlier effective date claims depend almost entirely on the dates and sequences in which the AOJ received certain documents from the Veteran. But because the Veteran seeks an earlier effective date for his award of an increased rating, 38 U.S.C. § 5110(b)(3), could authorize an effective date earlier than the date of claim for an increased rating, if the relevant increase in disability took place within one year of the receipt of the claim. See also Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The details of the Veteran's interview with the examiner could possibly disclose new information about the precise timing of any pre-claim increase in the Veteran's lumbar spine disability. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file copies of all records of the Veteran's VA treatment since August 2019. 2. Schedule a VA examination to ascertain the current severity of the Veteran's service-connected thoracolumbar spine disability. The VBMS and Virtual VA electronic claims files must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the relevant disability should be identified. In addition to all findings identified on the appropriate examination form, the examiner who completes the questionnaire should determine the effective range of motion in the Veteran's thoracolumbar spine, and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of range of motion test results, in degrees, for both active and passive motion, and in weight bearing and nonweight-bearing. If the examiner believes that testing using one or more of these methods is unsafe or impractical, he or she should clearly explain the medical reasons for that conclusion. The examiner's report should also describe objective evidence of painful motion, if any, during each test. It is not sufficient merely to indicate whether or not pain was present during one of the required range of motion tests. If it is impossible to make any of these findings, please provide an explanation. To comply with Sharp v. Shulkin, 29 Vet. App. 26, 33, the examiner should describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability of the lumbosacral spine during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the description of reduced range of motion during flares or repetitive use. If the examiner indicates that pain does not cause functional loss with respect to the lumbosacral spine, he or she should thoroughly explain the medical reasons for that opinion. During his or her interview with the Veteran, the examiner should ask the Veteran whether (and, if so, how frequently) symptoms of weakened movement, excess fatigability, incoordination, and/or pain on movement have resulted in the functional equivalent of ankylosis since 1999. The examiner's report should summarize the Veteran's answer to this question. Whether or not the Veteran appears to have difficulty answering this question, the examiner should also ask the Veteran to describe the symptoms of his back during the days when, according to his hearing testimony, he missed work. Please remind the Veteran that he said that, due to his back symptoms, he missed 15 days of work in 1999 and missed approximately 20 days of work each year since 2001. Was he able to move his lower back at all at those times? If so, approximately how much movement could he accomplish? The report should summarize the Veteran's response to these questions. 3. The AOJ must ensure that the examination reports and opinions requested comply with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals CHERYL L. MASON Veterans Law Judge Board of Veterans' Appeals TBD To Be Determined Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.