Citation Nr: 1324151 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 10-07 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial compensable evaluation for cervical spine disability from July 30, 2003, to September 26, 2003, in excess of 10 percent from September 26, 2003, to October 4, 2011, and in excess of 20 percent from October 4, 2011. 2. Entitlement to an initial compensable evaluation for left upper extremity radiculopathy associated with cervical spine disability. 3. Entitlement to an initial evaluation in excess of 10 percent for right upper extremity radiculopathy associated with cervical spine disability. REPRESENTATION Appellant represented by: Stephen J. Wenger, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1977 to October 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 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 noncompensable evaluation, effective July 30, 2003. By a December 2009 rating decision, the Veteran was awarded separate evaluations for upper extremity radiculopathy, noncompensable for the left side and 10 percent disabling for the right side, effective September 4, 2009. By a January 2010 statement of the case, the RO increased the Veteran's cervical spine disability evaluation to 10 percent disabling effective from September 26, 2003-the effective date of a regulation change applicable to spine disabilities. By a December 2011 supplemental statement of the case, a Decision Review Officer (DRO) increased the Veteran's cervical spine disability rating to 20 percent, effective October 4, 2011. The Board has taken jurisdiction over the bilateral upper extremity radiculopathy evaluations on appeal as required by the criteria for rating disabilities of the spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2012) (when rating diseases or injuries of the spine, consideration must be given to separate ratings for associated neurologic abnormalities). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in May 2013; a transcript of that hearing is associated with the claims file. The issue of service connection for a lumbar spine disorder, to include as secondary to his cervical spine disability, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board refers it to the AOJ for appropriate action. REMAND In this case, the Veteran's last VA examination of his cervical spine was in October 2011-the date of the assignment of his 20 percent evaluation. Since that time, the Veteran submitted a private physician's evaluation of his cervical spine dated in January 2013 showing significant decreases in the ranges of motion of his cervical spine. In addition, during his May 2013 hearing, the Veteran indicated that his bilateral radiculopathy was worse. The Veteran has argued that the private physician's evaluation of his cervical spine is the accurate reflection of his cervical spine disability throughout the appeal period since 2003, particularly that the private examiner's findings reflected the true nature of his cervical spine disability, which has been more or less constant since 2003. (The Board notes that the private evaluation demonstrates a significantly decreased range of motion of the cervical spine from the findings in the October 2011 VA examination.) Accordingly, in light of the significant change in range of motion demonstrated by the January 2013 private examination, the Board finds that a remand is necessary at this time in order to afford the Veteran another VA examination that accurately assesses the current severity of his cervical spine disability and any associated neurologic abnormality. 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); see also 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). Ongoing 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. Obtain any relevant VA treatment records from the Cleveland VA Medical Center, or any other VA medical facility that may have treated or evaluated the Veteran, since October 2011 and associate those documents with the claims file. 2. Schedule the Veteran for VA orthopedic and neurologic examinations in order to determine the current severity of his cervical spine disability and associated neurologic disabilities. The claims file must be made available to and be reviewed by the examiner(s) in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. The VA examiner is directed to conduct range-of-motion testing 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 equate all functional losses, including those due to flare-ups to additional loss of motion (beyond what is shown clinically). The examiner is also directed to specifically comment on the following: (a) Whether the Veteran has muscle spasms or guarding severe enough to result in abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; (b) Whether there is any ankylosis, either favorable or unfavorable, of the Veteran's cervical spine. (c) Whether the Veteran experiences incapacitating episodes requiring physician-prescribed bed rest. The frequency and duration of such episodes should be noted. (d) The examiner must also identify all associated neurological abnormalities associated with the service-connected cervical spine disorder, to include any associated bladder or bowel impairment, and particularly the presence of upper extremity radiculopathy. It should also be specifically noted whether the cervical spine disability has caused lower extremity radiculopathy. Each nerve affected or seemingly affected should be identified and the impairment of each nerve caused by cervical spine disability should be described as mild, moderate, moderately severe, or severe in nature, and whether such represents symptomatology that more closely approximates incomplete or complete paralysis of the affected nerves or nerves seemingly affected. (e) The examiner should finally state whether the limitation of motion with accompanying functional losses due to pain, etc. affecting the cervical spine disability equate to disability that is less than slight, slight, moderate or severe. 38 C.F.R. § 4.71a (2003). The examiner should specifically discuss the January 2013 private examination findings in the examination report, as well as any lay evidence from the Veteran regarding the nature and severity of his symptomatology throughout the appeal period. If the examiner finds that the January 2013 findings did not accurately reflect the level of disability, an explanation should be provided for such a conclusion, with references to the record and/or medical principles as necessary. All opinions must be accompanied by an explanation. If the examiner finds that any of the above questions cannot be answered 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 AOJ should review the claims file and readjudicate the Veteran's claim for an increased evaluation of his cervical spine disability and associated radiculopathy. If a 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 matters 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. 2013). ________________________________ 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).