Citation Nr: 21032020 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-36 454 DATE: May 25, 2021 REMANDED Entitlement to a greater than 20 percent evaluation prior to July 15, 2019 for lumbar strain is remanded. Entitlement to a greater than 40 percent evaluation from July 15, 2019 for lumbar strain is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from February 2001 to February 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision. Historically, a September 2004 rating decision granted service connection for lumbar strain with a 20 percent disability rating. A May 2013 rating decision confirmed and continued the 20 percent rating. In October 2013, the Veteran filed a notice of disagreement (NOD). A June 2016 statement of the case (SOC) continued the 20 percent rating based on a June 2015 VA examination. In July 2016, the Veteran filed a timely substantive appeal. In September 2019, the issue of an evaluation in excess of 20 percent was before the Board and remanded for further development to assess the current severity of the service-connected lumbar strain. A January 2020 rating decision granted an increase rating of 40 percent effective July 15, 2019. A January 2020 supplemental statement of the case (SOC) denied a rating greater than 20 percent prior to July 15, 2019 and a rating greater than 40 percent from July 15, 2019. 1. Entitlement to a greater than 20 percent evaluation prior to July 15, 2019 for lumbar strain 2. Entitlement to a greater than 40 percent evaluation from July 15, 2019 for lumbar strain The Veteran asserts that a higher disability rating is warranted for his lumbar condition. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A review of the evidence of record reveals conflicting disability picture of the Veteran's lumbar condition. VA treatment records reflect that an October 2011 x-ray of the lumbar spine was normal. In October 2012, the Veteran requested stronger medication for his back pain. In November 2013, the Veteran reported that pain in his entire spine was getting progressively worse since February 2013. Examination revealed mild tenderness to palpation of the lumbar spine at L3-S1. A July 2015 x-ray of the low back was normal. During a July 2015 VA examination, the Veteran reported having limited lifting and prolonged standing due to pain; and pain with certain movements during flare-ups which affect daily living activities. Examination revealed a forward flexion of 80 degrees, combined range of motion of 195 degrees, and pain on movement. The Veteran reported occasionally wearing a back brace. A July 2016 lumbar spine x-ray revealed interval development of mild grade 1 retrolisthesis of L5 on S1. In November 2017, the Veteran reported having pain in right lower back for three days radiating into buttocks and down posterior leg. In February 2019, the Veteran reported having and extremely stiff back and right side low back pain that stays in his lower back that does not radiate. During a July 2019 physical therapy consult, the Veteran reported having daily pain in his back, increased pain with slight bending, and that he sometimes cannot get out of bed. During a July 2019 VA examination, the Veteran reported having pain in his lower back when he sits or stands too long, which increases when he bends over; that back pain greatly limits his functionality; he was unable to play the trumpet or DJ more than five minutes before he started having back pain; and when the pain gets worse it interferes with his concentration. Examination revealed an initial forward flexion of 20 degrees and combined range of motion of 112 degrees; an after repeated use forward flexion of 15 degrees and combined range of motion of 85 degrees; and moderate paraspinal tenderness in the L1-L2 area. During a December 2019 VA examination, the Veteran reported having back pain every day when he sleeps and pain all the times that extends from near his pelvis to the middle part of his back. He reported that it hurts when he sits, walks, or bends over so he cannot tie his shoes or pick anything off of the floor. He also reported that he cannot walk upstairs or downstairs. Examination revealed an initial forward flexion of 30 degrees and combined range of motion of 80 degrees; repeated use over time forward flexion of 20 degrees and combined range of motion of 70 degrees; and moderate tenderness in the L1-L5 area. The examiner noted that the lumbar strain had worsened causing stiffness, constant pain, and the inability to bend over a lot of times. In February 2020, the Veteran reported having low back and buttocks pain and stiffness for 18 hours after playing ice hockey and landing on the left side of his body. In August 2020, the Veteran reported having back pain and being seen in the emergency room for lower scapula after playing street hockey. During a February 2021 VA examination, the Veteran reported that since his last VA examination the lower back pain has been constant with sharp pain on the left side and buttock with prolonged sitting. He reported having lower back pain with intermittent bilateral lower extremity radiculopathy would impact occupational activities involving repetitive bending, lifting, climbing, prolonged sitting, walking, or standing. Examination revealed an initial forward flexion of 45 degrees and combined range of motion of 110 degrees; repeated use over time forward flexion of 40 degrees and combined range of motion of 100 degrees. X-rays of the lumbar spine revealed unchanged mild grade 1 retrolisthesis of L5 on S1. In April 2021, the Veteran was seen in the emergency room for low back and neck pain. The Veteran reported feeling a pop on his low back after lifting heavy boxes. He reported that the back pain was so severe that his knees buckled causing him to fall onto the floor. Examination revealed full range of motion with pain and tenderness to palpation of the lumbar spine and bilateral paraspinal muscles. X-rays of the lumbar spine revealed no fracture or malalignment. A remand for a new examination of the Veteran's level of disability should be based upon a finding that there is an indication in the record that condition has changed. Conversely, if there is no affirmative indication that the condition has changed, then the case should be decided based upon the available evidence and a finding that there is no indication that the condition has changed since the last examination. In this instance, the evidence of record contains subjective and objective reports of limited range of motion, as well as reports of the Veteran playing street hockey, lifting heavy boxes, and full range of motion with pain. The Board finds that a new examination is warranted in order to fully evaluate the severity of the Veteran's lumbar spine condition and to reconcile the conflicting reports of the severity of his condition. The matters are REMANDED for the following action: 1. Secure for the record updated (to the present, all not already associated with the record) complete clinical records of VA evaluations and treatment the Veteran has received for his back disability. 2. Schedule the Veteran an examination by an appropriate orthopedic clinician to assess the current severity of the Veteran's low back disability. The examiner should conduct a complete and through examination in accordance in the DBQ instructions for such examinations (including all the testing specified), with findings reported in detail. If any testing required cannot be completed, explain why that is so (i.e., status of disability does not allow for it or the Veteran is noncompliant). The examiner is instructed to review the Veteran's complete claims file, to include all VA examinations (indicating limited range of motion and functional impairment due to pain), VA radiology reports (April 2011, July 2016, February 2021, and April 2021), and VA treatment records (reflecting reports of constant pain, Veteran engaging in street hockey in August 2020 and pain after heavy lifting, with examination reflecting full range of motion in April 2021). The examiner is asked to reconcile the widely disparate disability picture presented on VA examinations (July 2015, July 2019, December 2019 and February 2021) versus that suggested, and shown by clinical findings, in the course of treatment during the pendency of this appeal (including that the Veteran plays street hockey and has engaged in heavy lifting -sustaining a recent superimposed injury, and even following that injury was found by an emergency room examiner to have full range of lumbar spine motion). To the extent possible, reconcile the widely-disparate disability picture. The examiner must address any credibility or malingering questions raised by the disparate pictures presented and suggested. 3. The AOJ must ensure that there is full compliance with the Board remand instructions before returning the case to the Board. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Camille NeSmith, 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.