Citation Nr: 1329147 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 99-01 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a higher initial rating for residuals of neck strain with myofacial pain syndrome involving the neck, upper back, and shoulder blade areas, evaluated as 10 percent disabling prior to March 25, 2009, and as 20 percent disabling thereafter. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from June 1961 to November 1969, from March 1971 to March 1974, and from October 1990 to May 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 1998 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which, in pertinent part, granted service connection for neck strain with myofacial pain syndrome involving the neck, upper back, and shoulder blade areas, with an initial noncompensable rating assigned, effective December 23, 1996. In November 2003, the RO granted an increased rating of 10 percent for this disability from December 23, 1996. In a June 2011 decision, the Board confirmed a 10 percent disability rating effective December 23, 1996, and determined that a 20 percent disability rating was warranted beginning March 25, 2009. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) the June 2011 Board decision to the extent that it denied entitlement higher ratings. In a May 2012 Order, the Court granted the parties' Joint Motion for Remand (Joint Motion) and vacated that portion of the Board's June 2011 decision that denied higher ratings, including a TDIU rating. In February 2013, the Board remanded the claim for additional development. REMAND In the February 2013 remand, the Board requested that a VA examination be provided with a qualified physician to assess the current severity of the Veteran's service-connected cervical spine disability and related residuals. Unfortunately, the VA examination provided in March 2013 is inadequate for several reasons. First, the examination was provided by a nurse practitioner, not a physician, as requested in the remand order. Second, the Board requested specific information regarding any functional impairment that results during periods of flare-ups of the Veteran's disability. The Board stated that the examiner was to inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups. The Board stated that the examiner must equate all functional losses due to pain, incoordination, fatigue, weakness, and flare-ups, etc., to additional loss of motion (beyond what was shown on clinical examination). In other words, all functional deficits were to be described by equating the collective effect of those deficits to a level of disability contemplated by a certain limitation of motion even though such limited motion may not be shown on the examination. In the March 2013 examination report, the examiner noted the Veteran's reports of neck pain on a daily basis, which ranges from mild to moderate, precipitated by increased or unusual physical activities and inclement weather, and alleviated with rest. The examiner did not provide any additional information regarding the impairment resulting from or during the reported flare-ups, including the requested information regarding any additional loss of range of motion experienced during such a flare-up. Finally, the Board requested an opinion regarding whether the Veteran's service-connected neck strain with pain syndrome caused him to be unable to obtain and maintain employment for which his education and experience would otherwise qualify him. In the March 2013 VA examination report, the examiner did not provide the requested opinion, but rather stated that the Veteran's disability can cause him to be unemployable. The examiner referred to disc disease as the entity that can cause unemployability, but it was not made clear that the diagnosed disc disease was a residual of the service-connected neck strain and pain syndrome. Therefore, upon remand, the VA physician should be asked to provide the requested opinion. The Board also requests that this opportunity is taken to obtain any outstanding records of ongoing VA treatment. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding pertinent VA medical records and associate them with the claims file or Virtual VA. (The Veteran should be contacted to ascertain where treatment has been received.) All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 2. Once the above-requested development has been completed, the Veteran should be afforded a VA examination with a qualified physician to determine the current severity of the service-connected residuals of a neck strain with myofacial pain syndrome involving the neck, upper back, and shoulder blade areas. The examiner should review the claims folder, a copy of this remand, and any evidence in Virtual VA. All indicated testing should be conducted. The examiner should report the range of motion of the cervical spine in degrees. The examiner should report whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the disability. If pain on motion is observed, the examiner should indicate the point at which pain begins. Furthermore, any additional loss of motion or function (decreased or abnormal excursion, strength, speed, coordination, or endurance) with repetitive movement must be noted. The examiner shall inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups. The examiner must equate all functional losses due to pain, incoordination, fatigue, weakness, and flare-ups, etc., to additional loss of motion (beyond what was shown on clinical examination). In other words, all functional deficits should be described by equating the collective effect of those deficits to a level of disability contemplated by a certain limitation of motion even though such limited motion is not shown on the examination. (This requires a certain degree of conjecture on the examiner's part, but is required for rating this disability.) The examiner should report all neurologic impairment resulting from the service-connected neck strain disability. It should be specifically noted if degenerative disc disease has developed as a residual of the service-connected neck strain and pain syndrome. If any neurologic impairment is found as due to service-connected disability, the examiner should identify the nerve impaired, or seemingly impaired, and indicate whether there is complete or partial paralysis, neuralgia, or neuritis; and whether any partial paralysis, neuritis or neuralgia is mild, moderate, moderately severe, or severe. (If there is neurologic impairment of the extremities that is not related to the service-connected neck strain disability, the examiner should so report.) Finally, the examiner should provide an opinion on the question of employability. Specifically, it should be noted, given the Veteran's education and occupational background, whether his service-connected residuals of neck strain with pain syndrome causes him to be unemployable, without regard to advancing age. An explanation should be provided for why the examiner concludes that the Veteran has been made unemployable or not by his neck disability. 3. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and explanations requested in this remand. Further development as deemed necessary should be undertaken, included referral for extraschedular consideration, if warranted. 4. If a benefit sought on appeal is denied by the AOJ, the Veteran and his representative should be furnished with a supplemental statement of the case. Specific consideration should be given to the rating for the neck disability and pain syndrome and to the question of entitlement to TDIU. After the Veteran and his representative are afforded an opportunity to respond, the case should be 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 2002 & 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) (2013).