Citation Nr: 1337842 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 08-06 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a higher initial rating for spondylosis and degenerative disc disease of the cervical spine, evaluated as 10 percent disabling. 2. Entitlement to a higher initial rating for left upper extremity radiculopathy, rated as 10 percent disabling prior to January 23, 2007 and 30 percent disabling from that date. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from November 1980 to November 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Columbia, South Carolina. In a September 2006 rating decision, the RO granted service connection for multiple strain injuries of the cervical spine with spondylosis and degenerative disc disease and assigned a 10 percent disability rating, effective October 25, 2005. The RO also granted service connection left upper extremity radiculopathy and assigned a 10 percent rating effective October 25, 2005. In July 2007, the RO increased the rating for left upper extremity radiculopathy to 20 percent, effective January 23, 2007; and denied entitlement to TDIU. In a July 2008 rating decision, the RO granted a temporary total rating because of surgical treatment requiring convalescence effective March 5, 2008 and resumed the 10 percent rating for the cervical spine disorder effective May 1, 2008. In a November 2010 rating decision, the RO assigned another temporary evaluation of 100 percent effective June 2, 2010 based on surgical or other treatment necessitating convalescence. The 10 percent evaluation for the cervical spine disorder was resumed October 1, 2010. In January 2012, the Board remanded this appeal. The appeal will again be REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Records in the Veteran's electronic record show that he was afforded a VA examination for his service connected left upper extremity radiculopathy in September 2013. Although additional imaging studies have been obtained of the cervical spine, these examinations do not address the rating criteria used to evaluate his cervical spine disability, such as range of motion studies. Furthermore, there is no indication that the Veteran was provided a supplemental statement of the case since the completion of the September 2013 examination. Cf. 38 C.F.R. § 19.31(c) (2013). While the Veteran failed to appear for earlier examinations scheduled in conjunction with the previous remand, his appearance at the examination of his left upper extremity, signals a willingness to report for necessary VA examinations. The most recent VA treatment records in the file are dated in August 2012, but it appears he was being scheduled for subsequent treatment. The claim for TDIU is inextricably intertwined with the claim for increased ratings for a cervical spine disorder and left upper extremity radiculopathy. See Holland v. Brown, 6 Vet. App. 443, 446 (1994). The requested opinion as to the Veteran's employability has not yet been obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain relevant VA treatment records for the period since August 2012. 2. Schedule the Veteran for a VA examination to evaluate the current severity of his service-connected neck disability. All indicated tests and studies should be conducted. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should do the following: a) Report the ranges of cervical spinal motion in degrees; b) Provide an opinion as to whether there is additional limitation of motion due to weakened movement, excess fatigability, incoordination, pain, or flare ups. Express this opinion in terms of the degree of additional range-of- motion loss (in degrees) due to any weakened movement, excess fatigability, incoordination, flare- ups, or pain. c) If ankylosis is present, the examiner should specify the angle at which the cervical or entire spine is held. d) Assess the frequency and duration of any periods during which intervertebral disc syndrome has require bed rest prescribed by a physician; e) Specify the nerves affected by the neck disability and provide an opinion as to the severity of any associated paralysis, neuritis, or neuralgia, including whether there is complete paralysis; or mild, moderate, moderately severe, or severe incomplete paralysis; f) Opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities would, either individually or collectively, prevent him from obtaining or keeping gainful employment for which his education and occupational experience would otherwise qualify him. The examiner should specifically reference the February 2007 letter from Dr. R.G.D. that stated that the Veteran was unable to maintain any meaningful employment due to his cervical spine disease and multiple injuries. g) The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 2. The AOJ should review the examination reports to ensure that they contain the information and opinions requested in this remand and are otherwise complete. 3. If, the Veteran's service-connected disabilities do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), the AOJ should refer the case to VA's Director of C&P for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b). 4. If any benefit sought on appeal, remains denied, issue a supplemental statement of the case; then return the case to the Board, if otherwise in order. The Veteran 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. §§ 2515109B, 7112 (West Supp. 2013). _________________________________________________ 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) (2013).