Citation Nr: 1802429 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-15 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for cervical spine degenerative disc disease and joint disease (cervical spine disability). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel INTRODUCTION The Veteran served on active duty in the United States Navy from March 1985 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. Subsequently, jurisdiction over the appeal currently resides with the RO in Phoenix, Arizona. This matter was previously before the Board in January 2016 and it was remanded because the Board noted that the Veteran's claim for cervical spine joint disease and degenerative disc disease also included subjective complaints of painful right upper extremity pain. Accordingly, the Board remanded the Veteran's claim in order to confirm or rule out the issue of right upper extremity radiculopathy. Subsequently, the issue of right upper extremity radiculopathy was evaluated to be a separate disability from the Veteran's cervical spine disability and was awarded service connection in April 2016. Thus, this issue is no longer before the Board. 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 sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veterans claim so that he is afforded every possible consideration. As to the issue of a cervical spine disability, in the case of Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court noted that for a joint examination to be adequate, the VA examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Sharp, 29 Vet. App. at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Id. at 10. The Veteran was afforded a VA examination in February 2016 wherein he complained of having flare-ups in his neck. Specifically, the Veteran identified that he has difficulty moving quickly and he has functional loss of the cervical spine in that he has difficulty with reading and computer use. The examiner indicated that the examination was not being conducted during a flare-up and that the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare-up. Moreover, the examiner stated that he was unable to say without mere speculation if pain, weakness, or incoordination significantly limit functional ability with flare-ups. The Board finds this examination to be insufficient because the examiner did not obtain the Veteran's lay statements as to the extent of his functional loss during a flare-up and, if possible, offer range of motion estimates based on that information. Although the examiner indicated that they could not determine the impact of the Veteran's functional impairment during a flare-up without resorting to speculation, he did not indicate whether the inability to provide a range-of-motion estimate without resorting to speculation was due to lack of knowledge among the medical community or based on the lack of procurable information. Thus, a remand is necessary in order to provide the Veteran with a new examination. While the appeal is in remand status, the AOJ should also obtain and associate with the record any outstanding VA treatment records. See 38 U.S.C. § 5103A(d) (2012). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file the Veteran's contemporaneous VA treatment records from June 6, 2017 to the present. 2. Schedule the Veteran for a VA examination to determine the current severity of his neck disability. If the Veteran is unable to attend an examination, the RO should have an examiner provide an opinion based on the Veteran's lay statements and the medical evidence contained in the Veteran's claims file. The claims file should be made available to and reviewed by the examiner and the examiner should provide answers to the following questions: (A). Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. (B). The examiner should also request the Veteran to identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of any flare-ups on range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. In providing all of the requested opinions, the examiner should consider the Veteran's competent lay claims regarding the observable symptoms he has experienced. The VA examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Then readjudicate the Veteran's claim on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued to the Veteran and his representative and they should be afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. 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 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 J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).