Veteranclaims’s Blog

August 7, 2018

Single Judge Application;low back disability is a musculoskeletal condition;range of motion criteria;

Excerpt from decision below:

“A low back disability is a musculoskeletal condition, and examiners tasked with describing the extent of that disability must do so in terms of range of motion. Through a series of cases, this Court has interpreted the regulations relevant to lower back disabilities as imposing various requirements on medical examiners when
determining a veteran’s range of motion. Specifically, these cases establish that determining range of motion entails more than simply noting where flexion becomes impeded, or at what point the veteran can’t bend any further; it also includes identifying whether any movement is weaker, slower, or less coordinated than normal. If observed, the examiner must explain where in the range of motion the veteran experiences weakness or other impediments. These are the collective measurements of a veteran’s functional loss—the crux of a musculoskeletal disability rating. For this reason, examiners have a responsibility to convey all of this information to the Board.
The examiner in this case noted that Mr. Yarbrough had impeded motion at 45 degrees. He also concluded that pain caused weakened, fatigued, and less movement than normal, but he did not explain what portion of Mr. Yarbrough’s range of motion was affected by these manifestations.
By failing to articulate that information, the examiner did not provide a complete picture of
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Mr. Yarbrough’s disability. The Court has consistently held such opinions inadequate for rating
purposes and so the Board erred when it relied on it.

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-0600
GEORGE H. YARBROUGH, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

TOTH, Judge: The question in this case is whether the medical examiner fully described the functional loss in George Yarbrough’s low back. A low back disability is a musculoskeletal condition, and examiners tasked with describing the extent of that disability must do so in terms of range of motion. Through a series of cases, this Court has interpreted the regulations relevant to lower back disabilities as imposing various requirements on medical examiners when determining a veteran’s range of motion. Specifically, these cases establish that determining range of motion entails more than simply noting where flexion becomes impeded, or at what point the
veteran can’t bend any further; it also includes identifying whether any movement is weaker, slower, or less coordinated than normal. If observed, the examiner must explain where in the range of motion the veteran experiences weakness or other impediments. These are the collective measurements of a veteran’s functional loss—the crux of a musculoskeletal disability rating. For this reason, examiners have a responsibility to convey all of this information to the Board.
The examiner in this case noted that Mr. Yarbrough had impeded motion at 45 degrees. He also concluded that pain caused weakened, fatigued, and less movement than normal, but he did not explain what portion of Mr. Yarbrough’s range of motion was affected by these manifestations.
By failing to articulate that information, the examiner did not provide a complete picture of
2
Mr. Yarbrough’s disability. The Court has consistently held such opinions inadequate for rating
purposes and so the Board erred when it relied on it. A new medical examination is warranted and
the claim is remanded.
I. BACKGROUND
A. Musculoskeletal Ratings Generally
Mr. Yarbrough is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237 at 20% for a
lumbosacral strain (low back disability). It’s helpful to know at the outset that this is a
musculoskeletal condition, and, for rating purposes, the foundation of such a disability is the low
back’s functional loss. Thompson v. McDonald, 815 F.3d 781, 785–86 (Fed. Cir. 2016). Functional
loss is defined as the extent to which the low back is unable to move “with normal excursion,
strength, speed, coordination and endurance.” 38 C.F.R. § 4.40 (2018). Because this particular
body part is considered a joint, functional loss might also take the form of abnormal movement or
changes in strength, fatigability, or coordination in his low back. 38 C.F.R. § 4.45 (2018). And
importantly, pain is a recognized source of any of these effects. Schafrath v. Derwinski, 1 Vet.App.
589, 592 (1991).
These considerations ultimately guide the Board as it assigns a rating under the criteria
found in the diagnostic code. Thompson, 825 F.3d at 785. For Mr. Yarbrough’s condition, the
relevant criteria in DC 5237 provide a 20% rating where there is forward flexion of the
thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. And if the veteran’s
flexion is less than 30 degrees, a 40% rating is warranted. The same ratings may be assigned under
other circumstances not at issue here.
B. Facts and Procedural History
This is Mr. Yarbrough’s second appeal to this Court in pursuit of a higher 40% rating. Two
years ago, the Court set aside a June 2015 Board decision for failing to discuss a May 2014 VA
examiner’s determination that Mr. Yarbrough had functional loss resulting in less movement than
normal, weakened movement, and pain on movement. Yarbrough v. McDonald, No. 15-3130,
2016 WL 4137537 at *2 (Vet. App. Aug. 3, 2016). At the Court’s direction, the Board reconsidered
the May 2014 examination report and issued a new decision in February 2017. That decision is
appealed here, and the same 2014 medical examination once again assumes center stage as the
focus of the parties attention.
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Mr. Yarbrough underwent several VA examinations related to this claim but the Board
focused almost exclusively on the May 2014 examination report. The opinion documented
Mr. Yarbrough’s range of motion at 45 degrees with pain exhibited throughout the entire range.
The examiner noted that, after repetitive use of his low back, Mr. Yarbrough experienced
functional impairment in the form of less movement than normal, weakened movement, and
painful movement and that the functional impact of Mr. Yarbrough’s condition was that he could
not do physical work. But in the closing comments of his opinion, the examiner stated that
Mr. Yarbrough’s pain, weakness, fatigability, and incoordination did not significantly limit his
functional ability during flare-ups or when he used his low back repeatedly.
Relying on the 2014 opinion, the Board concluded that, despite the fact that Mr. Yarbrough
experiences pain throughout his entire range of motion, his 20% rating adequately compensated
him for any functional impairment because there were no clinical findings that warranted an
increased evaluation under §§ 4.40 and 4.45. The sole support offered by the Board for this
conclusion was that the competent medical evidence did “not indicate significant functional loss
attributed to the veteran’s low back complaints” and, although there was pain throughout his entire
range of motion, “there was no additional loss of motion on repetitive use.” R. at 10.
II. ANALYSIS
A. The Medical Opinion
1. DeLuca
In DeLuca v. Brown, 8 Vet.App. 202, 205–06 (1995), this Court first tackled one of the
trickier issues related to the assignment of disability ratings for musculoskeletal injuries of the low
back. Specifically, DC 5237, the relevant diagnostic code for Mr. Yarbrough’s low back disability,
focuses only on a mechanical range of motion and contains no additional considerations. By
contrast, § 4.40, which applies to all musculoskeletal disabilities, focuses on broader aspects of
functional loss such as the loss of “normal excursion, strength, speed, coordination and endurance.”
The question in DeLuca was whether medical examiners, in line with the narrow focus of DC 5237,
had to account only for a veteran’s loss in range of motion or whether they had to address the
broader aspects of functional loss discussed in § 4.40.1
1 In DeLuca, the veteran’s medical examiner recorded the range of motion of the veteran’s injured shoulder
but showed no signs that he considered the other possible forms of functional loss. That is, the examiner indicated that
4
DeLuca made clear that the Board—and by extension the examiner—must account for
functional loss due to pain, even under diagnostic codes that account only for a veteran’s range of
motion. 8 Vet.App. at 205–06. Specifically, DeLuca held that the musculoskeletal diagnostic codes
(like the one employed here) do not subsume the broader factors of §§ 4.40 and 4.45, and as such,
“it is essential that the rating examination adequately portray the functional loss.” Id. at 206. To
that end, medical examiners should, where feasible, express a veteran’s functional loss due to pain
in terms of degrees of lost range of motion. Id.
So, for example, where a veteran’s pain causes weakness in the course of a particular
movement, the question the examiner need answer is: within what range is that weakness
exhibited? Five degrees? Ten degrees? Throughout the entire range? When conveyed in this
manner, the information allows the Board to properly account for functional loss due to impeded
flexion and other forms of functional loss, including any due to pain—all set in terms of range of
motion that can form the basis of a rating under DC 5237. See § 4.40.
2. Adequacy of the Medical Opinion
With this understanding, the result in this case becomes clear: the May 2014 medical
opinion is inadequate. The examiner indicated that Mr. Yarbrough experienced functional loss in
the form of less movement than normal, weakened movement, and painful movement and that the
functional impact of Mr. Yarbrough’s condition was that he could not do physical work. He did
not, however, express the loss in terms of degrees of lost range of motion. Instead, he simply stated
that there was no additional loss in range of motion after repetitive use and that Mr. Yarbrough’s
pain, weakness, fatigability, and incoordination did not significantly limit his functional abilities.
The examiner’s use of the word “significantly” was vague and amounted to little more than
an unsupported conclusion. The opinion failed to clearly indicate whether Mr. Yarbrough’s
documented 45-degree range of motion encompassed his functional loss due to pain, or whether
Mr. DeLuca’s range of motion was fully impeded at a certain degree, but did not mention whether some portion of his
flexion was unimpeded and yet impacted by weakness, fatigability, or any of the other listed considerations. For its
part, the Board found the examiner’s opinion adequate. It reasoned that §§ 4.40 and 4.45 did not provide for an
increased rating because the particular diagnostic code was based on range of motion criteria. And because pain can
cause limitation of motion, the Board concluded that any rating based strictly on limitation of motion necessarily
contemplates the effects of pain. DeLuca, 8 Vet.App. at 204. As such, the Board found that § 4.40 and the effect pain
had on the shoulder’s range of motion was irrelevant. The Board similarly read out the provisions of § 4.45, suggesting
that, because “weakened movement and excess fatigability usually are associated with muscle injury,” and
incoordination is similarly associated with nerve injuries, the absence of any muscle or nerve injury in Mr. DeLuca’s
case precluded consideration of changes in strength, fatigability, or coordination. Id. at 206.
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that range merely reflected impeded flexion. Leaving this question open thwarted the Board’s
ability to rate Mr. Yarbrough in a way that reflected his full disability picture. As such, the opinion
was inadequate and the Board clearly erred by relying on it. See Nieves-Rodriguez v. Peake, 22
Vet.App. 295, 304 (2008) (the measure of any medical opinion is its ability to fully inform the
Board). The Board should have returned the report and asked the examiner to clarify what he meant
by “significantly” and to put the observed functional loss in terms of additional lost range of
motion.
B. The Secretary’s Reading of Thompson
Despite the discussion above, the Secretary relies on Thompson to argue that evidence of
Mr. Yarbrough’s pain, weakness, and fatigability is irrelevant because veterans are ultimately rated
based on range of motion regardless of pain, less movement than normal or weakened movement.
The facts were different in Thompson, though, as was the central issue.
Mr. Thompson’s medical examiner conceded functional loss and noted that he had forward
flexion from zero to 65 degrees with pain throughout and pain reduced his flexion to 50 degrees
upon repetitive use. Critically, the examiner complied with the requirements in DeLuca; he
depicted the veteran’s initial range of motion and then expressed the impact of pain on that range
of motion in measurable terms. The Board determined that, even considering his limitation due to
pain (the 15-degree difference), his pain was still not severe enough to restrict his flexion to 30
degrees or less, which would warrant a higher rating. Thompson, 815 F.3d at 784.2
Mr. Thompson argued nonetheless that the Board erred by relying solely on a range of
motion measurement to determine his rating without also accounting for his functional loss due to
pain under § 4.40. Thus the real question in Thompson was whether § 4.40 provided a basis for a
rating separate from § 4.71a. Id. at 782. The Federal Circuit rejected that position, finding instead
that the “guidance of § 4.40 is intended to be used in understanding the nature of a veteran’s
disability, after which a rating is determined based on the § 4.71a criteria.” Id. at 785.
Contrary to the Secretary’s position, this is entirely consistent with the way DeLuca
suggested examiners marshal the evidence of a veteran’s functional loss: if the examiner observes
functional loss, he should express it “in terms of the degree of additional range-of-motion loss due
2 The veteran’s functional loss in Thompson was limited to additional loss in excursion after repetitive use,
as opposed to a different form, such as weakened or slower movement, but it still serves to illustrate how an examiner
successfully portrays the degree to which a veteran experiences functional loss.
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to pain on use or during flareups.” 8 Vet.App. at 206. Indeed, the method worked in Thompson.
The examiner assessed Mr. Thompson’s range of motion to be 65 degrees, but when functional
loss due to pain was accounted for, that range dropped to 50 degrees. Properly executed, the Board
was able to account for the veteran’s total loss in a way that allowed it to rate under the mechanical
criteria while at the same time compensating the veteran in a way that reflected his full disability.
C. Remand
On remand, the Board must obtain a new medical examination. Mr. Yarbrough also argues
that range-of-motion testing should be conducted, whenever possible, in weight-bearing and nonweight-
bearing positions. He is correct and the examiner should record such results or otherwise
explain why such testing was not conducted. See Correia v. McDonald, 28 Vet.App. 158, 168
(2016).
III. CONCLUSION
The February 1, 2017, Board decision is VACATED and the matter REMANDED for
further proceedings consistent with this opinion.
DATED: August 3, 2018
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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