Citation Nr: 1416708 Decision Date: 04/15/14 Archive Date: 04/24/14 DOCKET NO. 11-25 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to higher disability ratings for service-connected cervical spine degenerative joint disease, rated as 30 percent disabling prior to August 24, 2009, temporarily rated as 100 percent disabling from August 24, 2009 to September 30, 2009, and rated as 30 percent disabling as of October 1, 2009. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1977 to March 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which increased the Veteran's disability rating for service-connected cervical spine degenerative join disease to 30 percent, effective November 21, 2006. In a February 2010 rating decision, the RO assigned a temporary 100 percent disability rating for the Veteran's cervical spine disability, effective August 24, 2009, through September 30, 2009. The RO additionally proposed to reduce the Veteran's 30 percent disability rating in effect as of October 1, 2009 to 20 percent. In an August 2010 rating decision, the RO reduced the Veteran's disability rating for service-connected cervical spine disability to 20 percent, effective November 1, 2010. Later, in a February 2013 rating decision, the RO restored the Veteran's 30 percent disability rating for service-connected cervical spine disability, effective November 1, 2010, thereby nullifying the prior reduction. The RO additionally granted separate disability ratings for cervical radiculopathy of the upper extremities. In an August 2007 statement, the Veteran expressed disagreement with the rating assignment made in the June 2007 rating decision. Nonetheless, his claim was merely readjudicated in a June 2008 rating decision with no change in the rating assignment, and he was not issued a statement of the case at that time. He subsequently perfected his appeal with respect to the assigned disability rating for his cervical spine disability in October 2011. However, as the August 2007 statement is accepted as a timely notice of disagreement with the June 2007 rating decision, the Board finds that the Veteran's appeal has remained pending since that time. See 38 C.F.R. § 20.201 (2013); see also Gallegos v. Gober, 14 Vet. App. 50 (2000) The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The severity of the Veteran's service-connected cervical spine disability was last evaluated in an April 2012 VA examination. During his May 2012 Board hearing, the Veteran testified regarding the severity of his cervical spine disability and reported symptoms indicating that his cervical spine was approaching ankylosis. Additionally, the Veteran reported during his hearing that he was told that his neck would progressively get worse. Given the Veteran's reports, the Board believes that the April 2012 examination findings may not represent the current severity of the Veteran's service-connected cervical spine disability. Thus, remand for a new VA examination is required. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Additionally, in the April 2012 VA examination report, the VA examiner noted that the Veteran had scars related to his service-connected cervical spine disability that were either painful or unstable, or that had a total area of greater than six square inches. While the examination report outline notes that positive scar findings warrant completion of a scars questionnaire, it appears that such questionnaire was never completed. Finally, a review of the record reveals that the Veteran has received extensive private treatment for cervical spine disability from Western Regional Center for Brain and Spine Surgery. He additionally reported during his Board hearing that neck surgery was performed at St. Rose Hospital. Records from these providers have not been obtained. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). Accordingly, the case is REMANDED for the following action: 1. After obtaining authorization from the Veteran, obtain a complete copy of his private treatment records from Western Regional Center for Brain and Spine Surgery, from St. Rose Hospital, and from any additional private facilities that have treated his cervical spine disability. Additionally, obtain any recent VA treatment records dated since October 2012. Ask the Veteran to submit copies of any such treatment records in his possession, and inform him that he may obtain and submit treatment records himself. If requested records cannot be obtained, the Veteran must be notified of the attempts made and why further attempts would be futile. He must also be allowed the opportunity to provide such records, and be notified of any further actions that will be taken with regard to his claim, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002) and 38 C.F.R. § 3.159(e) (2013). 2. Thereafter, schedule the Veteran for a new VA examination of his cervical spine. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner should identify any and all orthopedic manifestations associated with the Veteran's service-connected cervical spine disability and fully describe the extent and severity of those manifestations. The examiner should specifically address the following: A) Report the Veteran's ranges of motion of his cervical spine in degrees, and state the point at which any pain is demonstrated. B) Comment on whether and to what extent there is incoordination, weakened movement, or excess fatigability on use of the cervical spine. Specifically, indicate whether there is likely to be any limitation of motion due: to (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. These determinations should be expressed in terms of the degree of additional range of motion loss- if this cannot be accomplished the examiner must explain why. C) Give an opinion as to whether pain could significantly limit functional ability, including limitation of motion, during flare-ups or when the cervical spine is used repeatedly over a period of time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. All limitation of function, including due to pain on use, must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. D) Determine whether the Veteran has any favorable or unfavorable ankylosis of the cervical spine. E) Document the number of weeks, if any, during the past 12 months, that the Veteran has had "incapacitating episodes," defined as "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." The examiner should additionally describe all scars, including surgical scars, associated with the Veteran's service-connected cervical spine disability. Specifically, the examiner should note whether the scars are deep, superficial, unstable, or painful on objective demonstration. (A deep scar is one associated with underlying soft tissue damage; a superficial scar is one not associated with underlying soft tissue damage, and an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar). The size (width and length) of the scars should be measured. With respect to scars of the head, face, and neck, the examiner should also specifically note the extent of any palpable tissue loss, whether there is gross distortion or asymmetry of any paired sets of facial features, and whether any of the 8 characteristics of disfigurement are present in the face, head or neck. The features of disfigurement are: (1) scar five or more inches (13 or more centimeters) in length; (2) scar at least one-quarter inch (0.6 centimeters) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding six square inches (39 square centimeters); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); (7) underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); and (8) skin indurate and inflexible in an area exceeding six square inches (39 square centimeters). The examination report should include unretouched color photographs. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, thoroughly review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Finally, readjudicate the Veteran's increased rating claim on appeal, to include the issue of entitlement to a separate rating for scars, if warranted. If the full benefits sought on appeal are not granted, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return his appeal to the Board for further appellate review. 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. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ ERIC S. LEBOFF 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. See 38 C.F.R. § 20.1100(b) (2013).