Citation Nr: 21071089 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-37 940 DATE: November 29, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for lumbar spine spondyloarthropathy is denied. Entitlement to an initial disability rating in excess of 10 percent for cervical spine spondyloarthropathy is denied. FINDINGS OF FACT 1. The Veteran's lumbar spine spondyloarthropathy is manifested by limitation of forward flexion to 75 degrees, total range of motion of 200 degrees, and no muscle spasm or guarding causing abnormal gait or spinal contour. 2. The Veteran's cervical spine spondyloarthropathy is manifested by limitation of motion still permitting forward flexion of the cervical spine greater 30 degrees; or the combined range of motion of the cervical spine greater than 170 degrees; and without clinical evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for lumbar spine spondyloarthropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. The criteria for an initial disability rating in excess of 10 percent for cervical spine spondyloarthropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1986 to June 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2011. In November 2018 and May 2021, the Board remanded this appeal for further development. Increased Ratings Lumbar Spine Spondyloarthropathy The Veteran contends that he is entitled to an initial rating greater than the current evaluation of 10 percent due to the functional loss that he experiences as a result of pain, fatigue, weakness, lack of endurance, muscle spasms, incoordination, and abnormal gait he experiences from his service-connected low back disability. The Veteran's lumbar spine spondyloarthropathy is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 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 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. 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. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, when the background factors listed in § 4.40 or 4.45 are relevant in 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) ("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. Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States 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 spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from veterans themselves, when a flare-up is not observable at the examination. The preponderance of the evidence is against a rating in excess of 10 percent for lumbar spine spondyloarthropathy. The Board acknowledges the Veteran's lay reports of functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. Even considering these lay reports of symptoms and functional loss, however, the degree of additional limitation reflected by the statements that standing, sleeping working, or performing strenuous activities cause increase pain would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees. Also, 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. At the August 2021 Compensation and Pension (C&P) examination, the Veteran's lumbar spine demonstrated forward flexion of 75 degrees, a total range of motion greater than 200 degrees, and no observable guarding or muscle spasm. No change was observed after repetitive use or anticipated after repeated use over time or during flareups. His lower extremities exhibited normal strength. Previous VA examinations demonstrated an even greater range of motion. The September 2016 and June 2010 VA examination revealed the Veteran's back to be capable of 90 degrees of forward flexion, and normal ranges of motion throughout the rest of the directions of movements measured on the examinations. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Veteran's bilateral lower extremity radiculopathy were service-connected in an August 2021 rating decision. If he seeks to appeal any downstream issues from that decision, that can be accomplished through an appropriate notice of disagreement filed before August 25, 2022. The lay and medical evidence of record is against a finding that he has any other neurological abnormality associated with his lumbar spine disability. The Board acknowledges that the Veteran reports having essentially all of the non-range of motion considerations listed in 38 C.F.R. §§ 4.40 and 4.45, and DeLuca v. Brown, 8 Vet. App. 202 (1995). Those considerations were discussed in the examination reports and did not demonstrate significant symptomatology. Also, he claimed to have muscle spasm and abnormal gait as a result of these conditions, and those symptoms were not reproducible on any VA examination, nor are they found in his medical records. While it is possible that he has these symptoms occasionally, the medical record is complete enough to demonstrate that they do not appear to be regular features of this disability. Importantly, even if these features were found to be regular sources of trouble for the Veteran, they would not, in the absence of more significant limitation of motion be sufficient to warrant an increased rating. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for lumbar spine spondyloarthropathy. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Cervical Spine Spondyloarthropathy The Veteran contends that he is entitled to an initial rating greater than the current evaluation of 10 percent due to the functional loss that he experiences as a result of pain, fatigue, weakness, lack of endurance, muscle spasms, incoordination, and abnormal gait he experiences from his service-connected upper back disability. The Veteran's cervical spine spondyloarthropathy is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. 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. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. 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. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, when the background factors listed in § 4.40 or 4.45 are relevant in 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) ("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. Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the 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 spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the service-connected cervical spine spondyloarthropathy. The Board acknowledges the Veteran's lay reports of symptoms that there was functional loss due to neck stiffness upon waking or after work. Even considering the Veteran's lay reports of functional loss, however, the degree of additional limitation reflected by the statements described above would not result in limitation of motion more nearly approximating forward flexion of 15 degrees but not greater than 30 degrees or the combined range of motion of the cervical spine not greater than 170 degrees. Also, the Veteran has not shown muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. At the August 2021 C&P examination, the Veteran's cervical spine demonstrated forward flexion of 45 degrees and a combined range of motion of nearly 300 degrees, without any clinical evidence of muscle or guarding. Previous C&P examinations conducted in June 2010 and June 2015 demonstrate similarly near complete ranges of motion. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Veteran was awarded service connection for radiculopathy of his right and left upper extremities in an August 2021 decision. If the Veteran desires to appeal any downstream issues from that grant, that may be accomplished via an appropriate notice of disagreement filed prior to August 25, 2022. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent for the service-connected cervical spine spondyloarthropathy. In denying this claim, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Steven H. Johnston, 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.