Citation Nr: 21021763 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-17 507 DATE: April 13, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for cervical strain with degenerative disc disease is denied. REMANDED Entitlement to service connection for acid reflux is remanded. Entitlement to service connection for ulcerative colitis, also claimed as inflammatory bowel disease is remanded. FINDING OF FACT The Veteran’s cervical strain with degenerative disc disease is manifest by painful motion and limited motion still permitting flexion greater than 15 degrees and a combined range of motion of the cervical spine greater than 170 degrees and without muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for cervical strain with degenerative disc disease 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 FINDING AND CONCLUSION The Veteran had periods of active service from June 1993 to May 1995, March 2003 to March 2004, October 2005 to December 2005, December 2008 to March 2009, and from August 2010 to November 2010. In January 2019, the Board denied the claim of entitlement to service connection for acid reflux. That denial was appealed to the United States Court of Veterans Claims (Veterans Court) and remanded to pursuant to a Joint Motion for Partial Remand (Joint Motion). These three matters have previously been before the Board together in August 2020, when they were remanded for further development. There has been at least substantial compliance with the Board’s remand directives regarding the cervical spine claim. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Although the Board regrets the additional delay, for the reasons detailed below further development is still required regarding the acid reflux and ulcerative colitis claims. INCREASED RATING 1. Entitlement to a disability rating in excess of 10 percent for cervical strain with degenerative disc disease The Veteran contends that he is entitled to a higher rating for his cervical spine disability. The Veteran’s cervical strain with degenerative disc disease 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. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when 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) (“[I]t is clear that 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. See 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 Veteran’s cervical spine condition. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and pain during flare-ups. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements 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. The most extreme limitation of the Veteran’s cervical spine condition is documented at the most recent compensation and pension examination, conducted in October 2020. There, the Veteran’s cervical spine demonstrated 45 degrees of forward flexion and a total combined range of motion in all measured directions greater than 170 degrees without muscle spasm or guarding. There was no change after three repetitions. Moreover, the examiner stated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time, and during flare-ups. The examiner acknowledged that pain, fatigue, and weakness significantly limited functional ability with repeated use over time and with flare-ups. During such period(s), the examiner opined forward flexion would be limited to 40 degrees, and provided other findings which reflect that total combined range of motion in all measured directions would still be greater than 170 degrees. See Sharp, supra. The examiner also stated that passive motion was the same as active motion; and that there was no objective evidence of pain in weight bearing or in non-weight bearing. See Correia, supra. At all other times during the appeal period, the Veteran’s ranges of motion were better than those noted on the October 2020 VA examination, to include prior VA examination of the neck/cervical spine in 2013. The medical treatment records do not document limitation of motion to the extent necessary for a rating in excess of 10 percent to include during flare-ups, nor does the Veteran explicitly identify any other such evidence. Further, he has not contended he would have such limitation but for the use of medication, nor is such otherwise demonstrated in the record. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). In view of the foregoing, the evidence is against a finding that the Veteran’s condition demonstrated the restriction of his range of motion that would warrant a rating in excess of 10 percent at any point during the appeal period to include as a “staged” rating(s). See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Additionally, 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. The Board acknowledges the 2013 and 2020 VA examinations noted there was evidence of mild kyphosis. Nevertheless, both of these examinations also explicitly found there was no spasm or guarding. As such, there was not abnormal kyphosis due to muscle spasm or guarding. There are also no findings of such impairment the medical treatment records. 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 or the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. In pertinent part, the 2013 and 2020 VA examinations explicitly found there was no radiculopathy or other associated neurological impairment; and no evidence of such in the medical treatment records. For the foregoing reasons, the Board concludes the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for cervical strain with degenerative disc disease, and it must be denied. 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. In making the above determination, the Board is cognizant that there were multiple changes to the VA rating criteria for evaluating orthopedic disabilities effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). However, there were no significant changes to the criteria for evaluating the Veteran’s cervical spine disability such that would affect the outcome of this case. REASONS FOR REMAND 1. Entitlement to service connection for acid reflux is remanded. The Veteran was prescribed a sleep aid medication during service and has provided documentation that various gastrointestinal side effects are common with that sleep aid, including gastroesophageal reflux disease (GERD). The October 2020 VA opinion indicates that acid reflux is not a side effect of the Veteran’s currently prescribed medications. However, given that the Veteran was prescribed this sleep aid with GERD as a known side effect, according to information submitted by the Veteran, the Board finds that an addendum opinion where the clinician addresses this previously prescribed sleep aid and the specific information provided by the Veteran regarding gastrointestinal side effects of this sleep aid is necessary to a fair evaluation of the Veteran’s claim. 2. Entitlement to service connection for ulcerative colitis, also claimed as inflammatory bowel disease is remanded. The February 2020 opinion adequately addresses the question of whether this condition is an undiagnosed illness or medically unexplained chronic multi-symptom illness related to Gulf War service. However, it is not adequate to guide the Board in adjudicating whether this condition is related to the Veteran’s service directly or was incurred during the Veteran’s service, in that it uses as part of its rationale that the Veteran’s ulcerative colitis and inflammatory bowel disease condition clearly predates his deployment in 2005. The Veteran’s contention has always been that this condition had its onset in 2003 during his deployment in that year. The Veteran’s post-deployment health questionnaire indicates that the Veteran reported diarrhea, though not rectal bleeding, during this deployment and VA gastroenterology staff have indicated that the Veteran’s symptoms likely manifested in 2004. Consequently, an addendum opinion addressing the question of whether the Veteran’s condition at least as likely as not manifested during his 2003 deployment or the remainder of his service period from March 2003 to March 2004 or otherwise related to the Veteran’s service. The matters are REMANDED for the following actions: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his attorney should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s acid reflux condition is at least as likely as not related to the Veteran’s in-service prescription and subsequent use of a sleep aid that the Veteran has provided information that this sleep aid is known to have gastrointestinal side effects, including GERD. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s ulcerative colitis/inflammatory bowel disease was at least as likely as not related to or had its onset during the Veteran’s period of service from March 2003 to March 2004 with special attention to the Veteran’s report of diarrhea during his deployment during this period and the December 2016 VA gastroenterology correspondence indicating that the Veteran’s symptoms likely began in the calendar year 2004. (Continued on the next page)   5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. John Kitlas Acting 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.