Citation Nr: 1605797 Decision Date: 02/16/16 Archive Date: 03/01/16 DOCKET NO. 10-21 018 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a cervical disorder, to include a separate compensable rating for a neurological impairment, for the period prior to July 15, 2015. 2. Entitlement to an initial staged rating in excess of 20 percent for a cervical disorder, to include a separate compensable rating for a neurological impairment, for the period on and after July 15, 2015. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel INTRODUCTION The appellant is a Veteran who had active service in the U.S. Air Force from June 2005 to October 2008. This matter came before the Board of Veterans' Appeals (Board) on appeal from a March 2009 decision of the San Diego, California, Regional Office which granted service connection for a cervical strain with a 10 percent rating. In February 2015, the Board remanded the issue of entitlement to an initial rating in excess of 10 percent for a cervical disorder to the Regional Office for additional action. In July 2015, the Appeals Management Center granted an increase in the cervical disorder rating to 20 percent. The issue of an increased rating for a lumbosacral strain has been raised by the record in an October 2015 Informal Hearing Presentation, but has not been adjudicated by the Agency of Original Jurisdiction (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 appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran contends that a rating in excess of 10 percent from October 29, 2008, to July 15, 2015, and in excess of 20 percent after July 15, 2015, is warranted for her cervical spine disorder. While the Veteran underwent a VA examination in July 2015, it contains inconsistent findings, thus frustrating the Board's ability to accurately rate the current disability. For instance, the report of a July 2015 VA examination states that the examiner was unable to evaluate the Veteran's localized tenderness of the cervical spine because she "jumped to very light touch, even before I touched her at times." Later, however, the report states that the Veteran had a normal response to light touch in the shoulder area, inner/outer forearm, and in the hand/fingers. Another section of the report describes an apparent neurologic deficit, indicating that the Veteran "cannot hold items in her right hand without occasionally dropping them." Confusingly, however, the report also notes that the Veteran has no functional impairment of an extremity. In addition, strength testing, sensory examination, radiculopathy examination, and a neurologic examination were all normal. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given the conflicting reports of the Veteran's condition provided in the July 2015 VA examination report, the Board finds that further VA evaluation of the Veteran's cervical spine is required to adequately address the issue of entitlement to a rating in excess of 20 percent after July 15, 2015. The Board finds that the Veteran's claim for an initial rating for a cervical disorder in excess of 10 percent for the period prior to July 15, 2015, is inextricably intertwined with the Veteran's claim for an initial staged rating in excess of 20 percent for the period on and after July 15, 2015. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination to ascertain the current severity of her service-connected cervical disorder. Both the claims file and this Remand must be made available to and reviewed by the clinician in conjunction with the examination. The examiner should indicate in the report that the claims file was reviewed in conjunction with the examination. All indicated tests and studies should be done and all subjective complaints and objective findings should be reported in detail. The examination report should indicate whether there is any neurologic impairment related to the service-connected cervical spine disability. 2. Then readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the Veteran's claim for benefits, to include a summary of the evidence considered, since the issuance of the statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. 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). _________________________________________________ MATTHEW D. TENNER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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).