Citation Nr: 1754979 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 06-23 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an initial rating in excess of 10 percent prior to December 16, 2013, and a staged initial rating in excess of 20 percent from December 16, 2013, for cervical spine spondylosis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from July 1984 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Jurisdiction rests with the RO in Huntington, West Virginia. This matter was previouly before the Board in November 2013, November 2014, April 2016, and March 2017, when it was remanded for further development. It now returns for appellate review. The September 2004 rating decision granted service connection for cervical spine spondylosis and assigned a 10 percent initial evaluation for multiple noncompensable orthopedic disabilities, effective from September 1, 2004. A May 2006 rating decision assigned separate ratings for the thoracolumbar spine, bilateral knees, and cubital tunnel syndrome, and assigned a separate noncompensable initial rating for cervical spondylosis, effective from September 1, 2004. During the pendency of the claim with disagreement as to the initial evaluation assigned for the cervical disability, an October 2007 rating decision assigned a 10 percent initial evaluation effective from September 1, 2004 and a May 2014 rating decision granted a 20 percent staged initial rating effective from December 16, 2013. Because these awards do not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities, the Veteran's appeal remains for Board consideration. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal). In July 2013, the Veteran testified at a videoconference before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the record within Virtual VA. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Pursuant to the duty to assist, entitlement to an initial rating in excess of 10 percent prior to December 16, 2013, and a staged initial rating in excess of 20 percent from December 16, 2013, for cervical spine spondylosis, must be remanded for further development. In this regard, the Veteran was most recently afforded a neck conditions disability benefits questionnaire for his cervical spine spondylosis in April 2017. The April 2017 VA examiner was unable to say if pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time or during flare-ups. Specifically, the April 2017 VA examiner found as Veteran had no change in range of motion with repetive use, it would be pure speculation to state if, with a significant flare-up, whether there would be any change in range of motion or to what degree. Similarly, the April 2017 VA examiner found it would be pure speculation to state if pain, weakness, fatigability, or incoordination could significantly limit functional ability when the joint was used repeatedly over a period of time. However, the record does not reflect the examiner attempted to elicit information from the record or the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups or during repeated use with respect to the Veteran's cervical spine spondylosis. Sharp v. Shulkin, 29 Vet. App. 26, 29, 2017 U.S. App. Vet. LEXIS 1266 (Sept. 6, 2017). Thus, an addendum opinion is warranted. Finally, in light of the remand, updated VA treatment records should be obtained. The record reflects the Veteran most recently received treatment from the Hunter Holmes McGuire VA Medical Center (VAMC) located in Richmond, Virginia, in November 2015, from the Salem VAMC, located in Salem, Virginia, in May 2016, and from the BeckleyVA Medical Center (VAMC), located in Beckley, West Virginia, in May 2017. Thus, on remand, the Veteran's updated VA treatment records, to include from the Holmes McGuire VAMC, from November 2015, from the Salem VAMC, from May 2016 and from the Beckley VAMC, from May 2017, should be obtained and associated with the claims file. See 38 U.S.C. § 5103A (c) (West 2012); 38 C.F.R. § 3.159 (c)(2) (2017). See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's updated VA treatment records, to include from the Holmes McGuire VAMC, from November 2015, from the Salem VAMC, from May 2016, and from the Beckley VAMC, from May 2017, and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. Forward the claims file to the April 2017 neck conditions disability benefits questionnaire examiner or suitable substitute. The entire claims file should be made available for review, to include a complete copy of this remand. Upon review of the record, the examiner must provide an opinion as to whether pain, weakness, fatigability or incoordination, associated with the Veteran's service-connected cervical disability, could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain, weakness, fatigability or incoordination on repeated use or during flare-ups. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so, to include eliciting information from the record and/or the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups of the cervical disability. Additionally, any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. A complete rationale for all opinions expressed must be provided. In the event that the VA examiner feels that another VA examination is necessary, such should be scheduled, and the Veteran should be notified of the time and place of the examination. 3. Finally, after undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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 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. §§ 5109B, 7112 (West 2012). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), only a decision of the Board 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) (2017).