Citation Nr: 1801083 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-25 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent disabling for degenerative disc and joint disease of the cervical spine, exclusive of periods of total temporary rating. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1994 to November 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Denver, Colorado Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is in the record. The Veteran's cervical spine disability is rated at 100 percent disabling from March 27, 2012 to May 31, 2012 and from February 24, 2015 to May 31, 2015 pursuant to 38 C.F.R. § 4.30. A rating in excess of 100 percent cannot be granted; accordingly, the Board will focus on the time periods on appeal exclusive of those where a temporary total disability has been assigned. The record indicates that the Veteran's service-connected disabilities may have prevented him from working during the appeal period. Because a TDIU rating is inherent in any claim for an increased rating, see Rice v. Shinseki, 22 Vet. App. 447 (2009), it has been added as an issue on the title page and characterized to reflect that the relevant appeal period is prior to March 27, 2012, from June 1, 2012 to February 23, 2015, and from June 1, 2015. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran's most recent VA examination for his cervical spine disability occurred in April 2013. Since that time, he has indicated that his disability has worsened. See October 2017 Board hearing. Because it has been more than four years since the last VA examination, a contemporaneous examination is required to assess the current severity of his service-connected disability. See Green v. Derwinski, 1 Vet. App. 121 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, previous VA spine examinations do not fully comport with the requirements of Correia and therefore may be inadequate. Because the Veteran reported flare-ups which significantly limit his range of motion (by limiting his ability to get out of bed), see October 2017 Board hearing, an opinion about any loss of the Veteran's range of motion during flare-ups should also be sought, if feasible. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (2017). Thus, remand for a new VA spine examination is necessary on these bases as well. The matter of entitlement to TDIU is inextricably intertwined with the Veteran's other claim; accordingly, it must be remanded as well. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from July 2017 to the present. The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has received for his disabilities are associated with the record. 2. After the above development has been completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected cervical spine disability. The examiner must review the entire record in conjunction with the examination. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion studies should include active and passive motion and weight-bearing and non-weight-bearing. The examiner should note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors (if the Veteran is not experiencing a flare up at the time of the examination, the examiner should ask the Veteran to describe the frequency, severity, duration, and type of symptoms experienced during flare ups and the examiner should provide an opinion as to limitation of motion, if feasible, based on that information). If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested.) If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all matters 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 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2017).