Citation Nr: 1314823 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 09-37 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for a cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Peters, Associate Counsel REMAND The Veteran had active duty service from August 1986 to April 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for a cervical spine disability and assigned a 10 percent evaluation for that disability, effective May 1, 2008-the date following the Veteran's discharge from service. The Veteran timely appealed that issue. The Veteran last underwent a VA examination of his cervical spine disability in July 2009. At that time, the Veteran reported having radiating pain from his neck to his right trapezius muscle with numbness in his right arm. The VA examiner did not address any radicular symptomatology in the examination report. Note 1 to the rating criteria requires that any neurologic abnormality associated with a service-connected spine disability be rated separately. 38 C.F.R. § 4.71a (2012). Because it is not clear that the Veteran indeed experiences such a problem that can be objectively ascertained, and because it is not clear that any neurologic disability he may have is in fact traceable to the disability that has been service connected (strain with osteophyte formation), further evidentiary development is required to address such questions. Accordingly, the Board finds that a remand is necessary at this time in order to afford the Veteran another VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any VA or private treatment that he may have had for his cervical spine disability since discharge from military service. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Schedule the Veteran for VA orthopedic and neurologic examinations in order to determine the current nature and severity of his service-connected cervical spine disability and any associated neurologic disabilities. The claims file must be made available to and be reviewed by the examiner(s) in conjunction with the examination(s). All tests deemed necessary should be conducted and the results reported in detail. The VA examiner is directed to conduct range of motion testing of the cervical spine and provide commentary regarding symptoms including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Furthermore, any additional loss of motion with repetitive movement must be noted. The examiner shall inquire as to periods of flare-up, and note the frequency of duration of any such flare-ups. The examiner must describe all functional losses, including those due to flare-ups, by equating the disability to additional loss of motion (expressed in degrees) beyond what is shown on clinical evaluation. The examiner is also directed to specifically comment on whether there are muscle spasms or guarding severe enough to result in abnormal spine contour; and whether there is any ankylosis of the cervical spine, and if so, whether such is favorable or unfavorable in nature. The examiner must also identify each neurological abnormality associated with the service-connected cervical spine disorder, particularly the presence of either left or right upper extremity radiculopathy. Additionally, the examiner should indicate whether there is any disc disease that is caused or made worse by service-connected strain with osteophytes. The severity of each neurological sign and symptom must be reported, if such exists, as mild, moderate, moderately severe, or severe in nature, and whether such represents symptomatology that more closely approximates incomplete or complete paralysis of the nerves affected or seemingly affected. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Following any additional indicated development, the agency of original jurisdiction should review the claims file and re-adjudicate the Veteran's claim for a higher rating for his cervical spine disability. Consideration should be given to rating any objective neurologic abnormalities separately and to whether any disc disease is part of the service-connected disability. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2012).