Citation Nr: 1702392 Decision Date: 01/27/17 Archive Date: 02/09/17 DOCKET NO. 07-07 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for the period between June 24, 1993 and May 14, 2014 for cervical spine arthritis with degenerative changes. 2. Entitlement to an initial rating in excess of 20 percent for the period since May 14, 2014 for cervical spine arthritis with degenerative changes. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1950 to October 1952 and had periods of active duty for training (ACDUTRA) in the Reserve from February 1956 to September 1990. This matter came to the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2016, the Board denied a rating in excess of 10 percent for a cervical spine disability prior to May 14, 2014 and a rating in excess of 20 percent thereafter. The Veteran appealed this issue to the Court of Appeals for Veterans Claims (Court). In October 2016, the Court, pursuant to a Joint Motion for Remand (JMR), vacated the Board's decision and remanded the issues for readjudication. For clarification purposes, the Board notes that in March 2016 the issue of entitlement to an effective date prior to March 4, 2002, for the grant of service connection for tinnitus was remanded. This issue has not yet returned from remand. As a result, it will not be addressed herein. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The JMR found that the Board had erred in relying upon a May 2014 VA examination. In this regard, the JMR determined that the examination was inadequate for rating purposes because the examiner did not sufficiently describe the functional loss the Veteran suffered during flare-ups in accordance with Mitchell v. Shinseki, 25 Vet. App. 32. In pertinent part: the JMR noted that: [The Veteran] reported flare ups "with inactivity[,] stiffness and pain and last [sic] up to 1/2 day."...The examiner, however, did not describe the additional functional loss resulting from pain during flare ups, if any, expressed in terms of range-of-motion loss. Though the examiner reported range of motion findings under a heading entitled "Mitchell criteria."..., it is unclear if this was addressing the additional functional loss, if any, resulting from flare ups.... As a result of these inadequacies, and in accordance with the JMR, the Board finds that a new VA examination is necessary to address the severity of the Veteran's service-connected spinal disability. In light of the need to remand, the RO should obtain any current VA treatment records from July 2014 to the present. The RO should also contact the Veteran to determine whether there are any additional relevant private treatment records and obtain any necessary authorizations for such records. See 38 C.F.R. § 3.159 . Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain updated VA treatment records from July 2014 to the present. Contact the Veteran to determine whether there are any additional relevant private treatment records and obtain any necessary authorizations for such records. If the Veteran responds, all reasonable attempts should be made to obtain such records. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Arrange for the Veteran to undergo VA orthopedic examination to assess the severity his cervical spine disability. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. The examination report must include ranges of motion of the cervical spine in active motion, passive motion, weight-bearing, and nonweight-bearing, with notations as to the degree of motion at which the Veteran experiences pain. The extent of any weakened movement, excess fatigability, and incoordination 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. The VA examiner must also provide a retrospective medical opinion addressing the ranges of motion and additional functional impairment of the cervical spine for the periods between June 1993 and May 2014 and since May 2014. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups of the cervical spine. 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. The VA examiner should again provide a retrospective medical opinion addressing the functional impairment of the cervical spine for the periods between June 1993 and May 2014 and since May 2014. The examiner should provide a rationale for any opinion expressed and reconcile that opinion with all pertinent evidence of record, including all relevant VA medical records and any lay evidence suggesting that Veteran's service-connected cervical spine problems are worse than shown on some prior examinations. 3. After the above development, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond. 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). _________________________________________________ MICHAEL A. HERMAN 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) (2016).