Citation Nr: 1757736 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 09-38 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial rating in excess of 10 percent, prior to June 29, 2010, an increased rating in in excess of 20 percent, from June 29, 2010, to February 3, 2015, and an increased rating in excess of 10 percent, from February 4, 2015, for degenerative joint disease, cervical spine (claimed as chronic neck pain). ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1994 to August 1994 and from September 1997 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California and an October 2015 rating decision of the RO in Boston, Massachusetts. Jurisdiction of this matter currently resides with the RO in Boston, Massachusetts. The matter was previously before the Board in December 2015, at which time it was remanded for additional development. Review of the record shows that further development is required this matter. Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to adequately evaluate the Veteran's service-connected cervical spine disability. The Veteran underwent a VA neck examination in April 2017. The Board finds that this examination is inadequate because it fails to consider the Veteran's flare-ups as a disabling factor. The Board notes that a recent United States Court of Appeals for Veterans Claims (Court) precedent, citing to a VA clinician's guide, appears to require in cases such as this, that when evaluating impairment from a given disability, the VA examiner is to estimate additional range of motion loss during flare-ups after eliciting appropriate information from the Veteran, and considering all the information of record; or explain why he or she could not do so. See Sharp v. Shulkin, 29 Vet. App.26 (2017). As the Veteran asserts he experiences flare-ups, and the current April 2017 examination report did not address this because the Veteran was not having a flare-up at the time of the examination, another examination is necessary to comply with the Court's requirements. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding, pertinent VA treatment records and associate them with the electronic file. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Provide the Veteran an opportunity to submit any outstanding private treatment records relating to his service-connected disabilities. Provide the Veteran with the appropriate authorization for release form(s). For any outstanding private treatment records identified and authorized by the Veteran, make at least two (2) attempts to obtain such records. All attempts made must be documented in the electronic file, to include the unavailability of any identified records. For any identified records that are not obtained, notify the Veteran and his representative of such and provide him with an opportunity to submit those records. 3. Schedule the Veteran for a VA examination for the purpose of ascertaining the current nature and severity of his service-connected cervical spine disability, to include any functional effects. The Veteran's electronic file should be made available to and be reviewed by the examiner, and (s)he must indicate whether such review was accomplished. The examiner should determine the range of motion of the Veteran's cervical spine in degrees. Range of motion testing must include both passive and active motion, as well as in weight-bearing and nonweight-bearing conditions. It should be indicated whether and at what point during the Veteran's range of motion the Veteran experiences any limitation of motion that is specifically attributable to pain. Further, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use, weakened movement, excess fatigability, or incoordination should be indicated. With regard to flare-ups, if one is not occurring at the time of the examination, it is requested that the examiner estimate any functional limitation and estimate the additional range of motion loss during flare-ups after eliciting appropriate information from the Veteran, and considering all the information of record. If the examiner is not able to provide an estimate, an explanation of why such estimate cannot be furnished must be included in the opinion. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. Please note that an examiner's report that (s)he cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. 4. Then, readjudicate the appeal. If the benefit sought is not granted in full, furnish the Veteran a supplemental statement of the case (SSOC) and, after allowing an appropriate period of time for response, return the case to the Board. 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 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). _________________________________________________ KRISTI L. GUNN 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) (2017).