Citation Nr: 0812653 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 04-37 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased rating for status post cervical strain, evaluated as 10 percent disabling from July 24, 2003 to August 5, 2007 and as 20 percent disabling thereafter. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The veteran had verified active duty from November 1981 to June 1987, with evidence of additional active duty from June 1978 to August 1981. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an October 2003 rating decision of the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO), which increased the rating for status post cervical strain with radiation of pain to the shoulder to 10 percent, effective July 24, 2003. In a June 2006 decision, the Board denied an evaluation in excess of 10 percent for status post cervical strain. The veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In August 2007, the VA's General Counsel and the appellant, through his representative, filed a Joint Motion to remand the appeal to the Board. In September 2007, the Court granted the Joint Motion and remanded the claim for compliance with instructions in the joint motion. The appeal is REMANDED to the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Subsequent to the June 2006 Board denial, the veteran requested an increased evaluation for his cervical spine disorder. The RO obtained treatment records and a VA examination was provided in August 2007. In September 2007 the RO increased the rating for his cervical spine disorder to 20 percent, effective date of August 6, 2007. Because the June 2006 Board decision has been vacated, the evidence received in conjunction with the veteran's request for an increased evaluation in August 2006 must be considered as part of the claim for an increased evaluation received in July 2003 and is pertinent to the veteran's claim. This evidence was received after issuance of the last supplemental statement of the case which was issued in October 2004. VA regulations require that this evidence be considered in a new supplemental statement of the case. 38 C.F.R. §§ 19.31, 19.37 (2007). Further, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court held that for an increased compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. Id. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flareups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet.App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2006). On the VA examination in August 2007, it was reported that the veteran had weakened movement and incoordination of the neck, but it was not reported whether there was additional limitation of motion attributable to these functional effects. Accordingly, the case is REMANDED for the following action: 1. Provide the veteran with a VCAA notice letter regarding his claim for an increased rating for his cervical spine disorder, telling him that: (1) he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) that the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, which typically provide for a range in severity of a particular disability from 0 to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. 2. Ask the examiner who conducted the August 1997 examination to review the claims folder and provide an opinion as to whether the veteran has additional limitation of neck motion due to incoordination or weakened movements. If the examiner who provided the August 1997 examination is unavailable or is unable to provide the necessary opinion, schedule the veteran for VA orthopedic and neurological examinations to determine the current level of impairment due to the service-connected cervical spine disability. The claims folder should be made available to the examiner for review prior to the examination and the examiner is requested to acknowledge such review in the examination report or in an addendum. Regarding orthopedic manifestations of the cervical spine disability, the examiner should report the range of motion of the cervical spine in degrees, to include flexion, extension, left and right lateral flexion, and left and right rotation. The examiner should report the presence of any muscle spasm and any abnormal alignment of the spine. The examiner should also report any additional limitation of motion due to weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry should not be limited to muscles or nerves. These determinations should be expressed in terms of the additional degree of motion lost due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. Regarding neurologic manifestations of the cervical spine disability, the examiner should note whether the cervical spine disability causes incapacitating episodes (bed rest prescribed by a physician). The examiner should note all neurological abnormalities caused by intervertebral disc disease and should note whether or not such disease causes complete or partial paralysis, or neuritis or neuralgia of any nerve. If there is partial paralysis, neuritis, or neuralgia of any nerve, the examiner should identify the nerve affected and describe such paralysis as mild, moderate, or severe. The examiner should also provide an opinion concerning the impact of the veteran's service-connected cervical spine disability on his ability to work. 3. After completion of the above, if the claim is not fully granted, issue a SSOC, before returning the case to the Board if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).