DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

Summary

The Veteran served on active duty from November 1975 to May 1977. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2008 rating decision, with prior remands in March 2013, April 2017, and October 2017. The Veteran appeals the reduction of his rating for Scheuermann's disease of the thoracolumbar spine from 20 percent to 10 percent, and seeks an increased rating for residuals of a left torn anterior attachment of the medial meniscus. The Board restored the 20 percent rating for the thoracolumbar spine disability, effective January 22, 2018, finding it protected under 38 C.F.R. § 3.951(b) as it had been in effect for over 20 years. However, the Board remanded the claims for an increased rating for the thoracolumbar spine and for residuals of the left knee meniscus. The Board found the January 2018 VA examinations inadequate because the examiner could not assess functional impairment during flare-ups without resorting to speculation. Citing Sharp v. Shulkin, the Board determined new examinations are warranted to ascertain the current severity of both disabilities, including range of motion testing and assessment of functional loss during flare-ups, with the examiner to provide a complete rationale for all opinions and explain any inability to render an opinion without speculation.

Rationale

Rating protected under 38 C.F.R. § 3.951(b); Continuously rated at 20% for over 20 years; No showing of fraud

Full Decision Text

Citation Nr: 18114088
Decision Date: 06/26/18	Archive Date: 06/26/18

DOCKET NO. 10-41 018
DATE:	June 26, 2018
ORDER
The reduction from a 20 percent rating to a 10 percent rating for Scheuermann's disease of the throracolumbar spine was not proper; a 20 percent disability rating is restored, effective January 22, 2018.
REMANDED
Entitlement to a rating in excess of 20 percent for Scheuermann’s disease of the thoracolumbar spine is remanded.
Entitlement to a rating in excess of 10 percent for residuals of a left torn anterior attachment of the medial meniscus is remanded.
FINDING OF FACT
The Veteran’s thoracolumbar spine disability was awarded a 20 percent rating in a January 1979 rating decision, which was in effect for more than 20 years.
CONCLUSION OF LAW
The 20 percent rating awarded in January 1979 is a protected rating, and therefore restoration of a 20 percent rating for Scheuermann’s disease of the thoracolumbar spine from January 22, 2018, is warranted.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.951(b) (2017).  
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from November 1975 to May 1977.  These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2008 rating decision.
In March 2013, April 2017, and October 2017, the Board remanded the claims for further development.
Restoration of 20 percent rating for Scheuermann’s disease of the thoracolumbar spine from January 22, 2018
When a disability rating has been in effect for 20 or more years, that rating is protected.  “A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by the Department of Veterans Affairs will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. Likewise, a rating of permanent total disability for pension purposes which has been in force for 20 or more years will not be reduced except upon a showing that the rating was based on fraud.  The 20-year period will be computed from the effective date of the evaluation to the effective date of reduction of evaluation.”  38 C.F.R. § 3.951 (b). 
Service connection for the Veteran’s thoracolumbar spine disability was originally granted in a January 1979 rating decision and a 20 percent rating was assigned effective May 12, 1977.  This rating was based on orthopedic manifestations of the rating decision.  In an April 2018 rating decision, the RO granted separate ratings for radiculopathy of both lower extremities under the updated General Rating Formula for Diseases and Injuries of the Spine and reduced the rating for the thoracolumbar spine disability to 10 percent.  The 20 percent rating for orthopedic manifestations has been in effect since May 12, 1977, more than 20 years.  Therefore, the 20 percent rating for the low back is protected and cannot be reduced absent fraud, which has not been shown.
Restoration of a 20 percent rating for Scheuermann’s disease of the thoracolumbar spine from January 22, 2018, is warranted.
REASONS FOR REMAND
Entitlement to a rating in excess of 20 percent for Scheuermann’s disease of the thoracolumbar spine and entitlement to a rating in excess of 10 percent for residuals of a left torn anterior attachment of the medial meniscus are remanded.
The Veteran contends that his service-connected thoracolumbar spine disability and left knee disability warrant higher ratings than what is assigned.  As discussed above, the Board has restored the 20 percent rating for the thoracolumbar spine disability, effective January 22, 2018.   
Pursuant to the Board’s October 2017 remand, the Veteran was afforded VA examinations of the back and knee in January 2018.  The Board finds that these examination reports are inadequate for rating purposes.  At both examinations, the Veteran reported flare-ups of both his spine and knee disabilities.  However, the examiner noted that the examinations had not been conducted during a flare-up of either the Veteran’s thoracolumbar spine or left knee. The examiner could not answer whether pain, weakness, fatigability, or incoordination significantly limited functional ability of the Veteran’s thor
, the Board has restored the 20 percent rating for the thoracolumbar spine disability, effective January 22, 2018.   
Pursuant to the Board’s October 2017 remand, the Veteran was afforded VA examinations of the back and knee in January 2018.  The Board finds that these examination reports are inadequate for rating purposes.  At both examinations, the Veteran reported flare-ups of both his spine and knee disabilities.  However, the examiner noted that the examinations had not been conducted during a flare-up of either the Veteran’s thoracolumbar spine or left knee. The examiner could not answer whether pain, weakness, fatigability, or incoordination significantly limited functional ability of the Veteran’s thoracolumbar spine and left knee without resorting to mere speculation because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions.
Direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion. Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017).  In Sharp, the United States Court of Appeals for Veterans Claims (Court) explained that neither the law nor VA practice require that an examination be conducted during a flare for the functional impairment caused by flares to be taken into account.  Id. at 34. The Court noted that the VA Clinician’s Guide specifically advises examiners to try to procure information necessary to render an opinion regarding flares from Veterans.  Id. at 35.  Therefore, examiners may offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of Veterans.  The Board may accept a VA examiner’s statement that an opinion cannot be offered without resorting to speculation only after a determination that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner.  Id. at 33.  Thus, in light of Sharp, the Board finds new VA examinations are warranted to determine the current severity of the Veteran’s thoracolumbar and left knee disabilities.
The matters are REMANDED for the following actions:
1. Schedule the Veteran for VA examinations to ascertain the current severity of the Veteran’s service-connected thoracolumbar spine and left knee disabilities. All necessary tests should be conducted.  The claims file should be made available to and be reviewed by the examiner in conjunction with the examinations.  The examiner should address the following:
The examiner should conduct range of motion testing of the thoracolumbar spine and left knee.  The examiner should indicate whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the thoracolumbar spine and left knee disabilities.  If pain on motion is observed, the examiner should indicate the point at which pain begins.
In addition, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss of the thoracolumbar spine and left knee due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion.
The examination must include testing of the thoracolumbar spine and left knee joints for pain on both active and passive motion, in weight-bearing and non-weight-bearing.  If this cannot be performed, the examiner should explain why.
If the examination is not conducted during a flare-up, the functional impact of a flare-up should be estimated based on relevant sources, including lay statements of the Veteran.
If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so.
The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If the examiner finds that an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or by the examiner (does not have the knowledge or training).
2. Readjudicate the claims on appeal in light of all of the evidence of record.  If the issues remain denied, the Veteran and his representative should be provided with a supplemental statement of the case as to the issues on appeal, and afforded a reasonable period within which to respond thereto.

 
LANA K. JENG
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. Henriquez, Counsel