Citation Nr: 1648451 Decision Date: 12/29/16 Archive Date: 01/06/17 DOCKET NO. 04-41 523A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for migraine headaches for the period prior to September 6, 2006. 2. Entitlement to a rating in excess of 30 percent for migraine headaches from September 6, 2006. 3. Entitlement to a rating in excess of 10 percent for a cervical spine disability for the period prior to July 29, 2003. 4. Entitlement to a rating in excess of 20 percent for a cervical spine disability from July 29, 2003. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from October 1983 to December 1987. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from August 2002 and June 2003 rating decisions issued by the RO. Most recently, the Board remanded the appeal in July 2012 for further development of the record. In May 2012, the RO granted an increased 30 percent rating for the migraine headaches effective from September 6, 2006 and granted an increased 20 percent rating for the cervical spine disability effective from July 29, 2003. As higher schedular ratings for the migraine headaches and cervical spine disability are possible and the Veteran has not withdrawn the appeals, these claims remain before the Board on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran filed a notice of disagreement (NOD) to the June 2011 rating decision that denied service connection for right and left knee disorders, right ankle disorder, right and left upper extremity radiculopathy, bladder incontinence, bowel incontinence, erectile dysfunction, hypertension and gastroesophageal reflux disease (GERD). The RO issued a Statement of the Case (SOC) concerning right and left upper extremity radiculopathy in March 2013. The RO issued a SOC concerning the issues of service connection for right and left knee disorders, right ankle disorder, bladder incontinence, bowel incontinence, erectile dysfunction, hypertension and GERD in February 2014. The Veteran did not submit a Substantive Appeal (VA Form 9) perfecting his appeal concerning these issues. Therefore, they are not before the Board on appeal. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Due to a recent clarification in the law issued by the U.S. Court of Appeals for Veterans Claims (Court) the appeal must again be REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran underwent VA examination for his cervical spine disability in June 2009. During the intervening time, however, the Court has held "that the final sentence of [38 C.F.R.]§ 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities." Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The Court further stated that in order "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of [38 C.F.R.]§ 4.59." Id. at 169-70. The final sentence of 38 C.F.R. § 4.59 provides that "the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." In review of the June 2009 VA examination report, it is unclear whether the VA examiner tested the cervical spine disability for pain on both active and passive motion, and in both weight-bearing and non-weight-bearing conditions. Thus, a remand is required for a new examination. Additionally, the Veteran was last afforded VA examination for his service-connected migraine headaches and cervical spine disability in June 2009, and has alleged a worsening since that time. Because he is competent to report symptoms, new examinations are necessary prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA spine examination to assist in determining the nature and severity of the cervical disability. The entire claims file should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation, including any pertinent diagnostic imaging and radiography, should be accomplished and all clinical findings should be reported in detail. Specifically, the examiner is requested to test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not feasible, he or she should provide a detailed explanation for why testing could not be accomplished. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific limitation(s) of motion, if any, accompanied by pain. To the extent possible, the examiner should assess the degree of severity of any pain. Tests of joint movement against varying resistance should be performed. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If this testing is not feasible, the examiner should provide a detailed explanation for why such could not be accomplished. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If this testing is not feasible, the examiner should provide a detailed explanation for why such could not be accomplished. As indicated above, the examiner should review the record in conjunction with commenting on the severity of the Veteran's cervical spine disability; however, his or her attention is drawn to the following: *VA examination report of July 2002 *VA examination report of April 2005 *VA examination report of June 2005 *September 2007 statement of the Veteran's treating chiropractor *Most recent VA examination report of June 2009 *May 2010 statement of C.N.B., M.D. *March 2013 statement from the Veteran indicating that he has neck pain with radiation into his left upper extremity. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. 2. Schedule the Veteran for a VA examination to evaluate the current severity and manifestations of his migraine headaches. The entire claims file should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation should be accomplished and all clinical findings should be reported in detail with a full description of the Veteran's migraine headache disability, including frequency and severity of headaches (i.e., if such headaches are productive of prostrating attacks and the frequency of such attacks) and the impact of the headaches on the Veteran's economic adaptability. As indicated above, the examiner should review the record in conjunction with commenting on the severity of the Veteran's migraine headaches; however, his or her attention is drawn to the following: *VA examination report of June 2003 *VA examination report of April 2005 *September 2007 statement of the Veteran's treating chiropractor *Most recent VA examination report of June 2009 *May 2010 statement of C.N.B., M.D. *March 2013 statement from the Veteran indicating that he has frequent completely prostrating and prolonged attacks of migraine headaches that requires him to lie down in a dark and quiet room and take powerful medication. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. 3. After completing all indicated development, readjudicate the claims in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran should be furnished a fully responsive supplemental statement of the case and afforded a reasonable opportunity for response. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. 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 2014). _________________________________________________ Vito A. Clementi 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).