Citation Nr: 1602342 Decision Date: 01/20/16 Archive Date: 01/27/16 DOCKET NO. 09-35 600 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a higher initial rating for cervical intervertebral disc syndrome (IVDS) with cervical strain (previously cervicalgia), evaluated as non-compensable from June 6, 2008 to January 23, 2009, and as 10 percent disabling thereafter (cervical spine disability). 2. Entitlement to a higher initial rating for radiculopathy of the right upper extremity associated with cervical IVDS, evaluated as 50 percent disabling from October 17, 2011 to September 5, 2013, and as 20 percent disabling thereafter (right upper extremity disability). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The Veteran had active military service from November 2002 to June 2008. This case initially came to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs(VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO granted service connection for a cervical spine disability, assigning an initial noncompensable disability rating; and for migraines and a general anxiety disorder, each assigned initial 10 percent ratings, all effective from June 6, 2008. Service connection was denied for bursitis of the right shoulder and a right knee iliotibial band disorder. Jurisdiction of the Veteran's case is currently with the VA RO in Roanoke, Virginia. A November 2013 rating decision, in pertinent part, granted service connection for radiculopathy of the right upper extremity, assigning an initial 50 percent rating effective October 17, 2011 with a 20 percent rating assigned from September 6, 2013. The RO also granted a 50 percent rating for generalized anxiety disorder, effective September 10, 2013, and a 30 percent rating for migraines, effective September 6, 2013. In April 2014, the Veteran testified during a hearing before the undersigned that was conducted at the Board's main office in Washington, D.C. A transcript of the hearing is of record. In an August 2014 decision, the Board granted initial 50 percent ratings for the Veteran's generalized anxiety disorder and migraine headaches since June 6, 2008, and dismissed her claims for service connection for bursitis of the right shoulder and right knee iliotibial band syndrome. At that time, the Board remanded the Veteran's claims for increased initial ratings for her cervical spine and right upper extremity disabilities to the Agency of Original Jurisdiction (AOJ) for further development. The December 2015 supplemental statement of the case (SSOC) listed the issue of a rating higher than 50 percent for a general anxiety disorder among the issues on appeal. That matter was decided in the Board's August 2014 decision and is no longer on appeal. A claim for benefits pursuant to 38 C.F.R. § 4.30 (2015) due to a "back" (apparently the service connected thoracic spine disability) was made in a December 2015 VA Form 21-526EZ, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The December 2015 claim, and a November 2015 VA examination report, shows that the Veteran resides in Colorado, but jurisdiction has not been transferred from the Roanoke RO. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). In August 2014, the Board directed that the September 2013 VA examiner provide an opinion as to whether there was any additional limitation in terms of the degree of additional limitation due to pain on movement of the Veteran's cervical spine. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board instructed that, if that examiner was unavailable or unable to provide the requested addendum opinion, a new VA orthopedic examination should be scheduled. The examiner was instructed to report if there was additional functional limitation due to weakened movement, excess fatigability, incoordination, flare ups, or pain of the Veteran's cervical spine. The examiner should report the additional functional limitation in degrees of additional limitation due to weakened movement, excess fatigability, incoordination, flare ups, or pain. The November 2015 VA examiner reported that the Veteran had flare-ups of her cervical spine twice a month for the last six months, consisting of a locked up neck, tender to the touch, and did not feel safe driving during the flare because of trouble rotating her neck, lasting for 24 hours. The examiner also reported functional loss due to the cervical spine as pain. Normal range of motion was reported with pain on all excursions of motion. Intermittent trouble driving due to poor neck rotation to the right was noted. The examiner did not report the additional functional limitation in degrees due to flare-ups or pain, as directed by the Board. Stegall; Mitchell. The Board is required to obtain clarification. Stegall. In January 2016, the RO requested archived records of the Veteran's reported treatment at the Colorado Springs Community based outpatient clinic (CBOC) for the period from June 2008 to November 2014. A response has not yet been received, and these records are potentially relevant to the Veteran's claims. The Board will defer consideration of the matter of an increased initial rating for right upper extremity disability pending receipt of the addendum opinion or a new VA examination report. Accordingly, the case is REMANDED for the following action: 1. Insure that available records of the Veteran's treatment at the Colorado Springs CBOC from June 2008 to November 2011 have been obtained. 2. Then ask the physician who performed the November 3, 2015 VA examination to review the claims file and provide an opinion as to whether there is any additional functional limitation, in terms of the degree of additional limitation, due to flare ups or pain on movement of the Veteran's cervical spine. The Veteran would be competent to report such limitation. If the November 3, 2015 VA examiner is unavailable or unable to provide the requested addendum opinion, the Veteran should be afforded a new examination of her cervical spine. The examiner should review the claims file. The examiner should report whether there is additional functional limitation due to weakened movement, excess fatigability, incoordination, flare-ups, or pain of the Veteran's cervical spine. The examiner should report the additional functional limitation in degrees of additional limitation due to weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner is advised that the Veteran is competent to report the degree of such limitation. The examiner should state whether the Veteran's reports show additional limitation of motion due to flare-ups or pain, and the degree of such additional limitation. The examiner should also state whether there is any medical reason for disregarding the Veteran's reports. The examiner should also note any neurologic impairment associated with the cervical spine disability. The severity of any associated disability, including that of the upper right extremity, should be noted. If the examiner is unable to answer these questions, reasons for this inability should be provided. 3. If any benefit sought on appeal is not granted in full, a SSOC should be issued and the appeal should be returned to the Board if otherwise in order. The appellant 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 2014). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).