Citation Nr: 1802599 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 03-17 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for degenerative disc disease, C5-6 and C6-7, with right nerve impingement, median nerve, prior to October 31, 2015. 2. Entitlement to an evaluation in excess of 50 percent for right arm radiculopathy on and after October 31, 2015 (radiculopathy). 3. Entitlement to an evaluation in excess of 20 percent for cervical spine degenerative disc disease on and after October 31, 2015 (cervical spine disability). WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel INTRODUCTION The Veteran served on active duty in the United States Navy from February 1973 to September 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. This matter was previously before the Board in September 2014 and the Board remanded the case in order to obtain additional VA examinations. In January 2017, the case was returned to the Board and was remanded in order to obtain an additional examination for the Veteran's claim for PTSD and additional examinations for the Veteran's claims for increased ratings for his cervical disability and right arm radiculopathy. In October 2017, the Veteran was awarded service connection for PTSD. Thus, that issue is no longer before the Board. In May 2014, the Veteran provided testimony at a Board hearing. The Veterans Law Judge who conducted the hearing is no longer employed by the Board and the Veteran was afforded the opportunity for an additional hearing in November 2017. Subsequently, the Veteran did not respond to the Board's request within thirty days from the receipt of the letter. Thus, the Board will proceed with the adjudication of his remaining claims. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). 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 issues of entitlement to an increased rating for a cervical spine disability and right arm radiculopathy, 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 June 2017 for his cervical spine and radiculopathy, wherein he complained of having flare-ups associated with these disabilities. Specifically, the Veteran reported that he has to take additional pain medication and that his right arm has functional impairment during repeated use. The Veteran added that he was a construction worker and "because of the atrophy of my right arm I can't do electrical, plumbing, and carpentry." Following the examination, the VA examiner indicated that the examination was not being conducted during a flare-up and that the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during a 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: (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. Associate with the claims file the Veteran's contemporaneous VA treatment records from June 16, 2017 to the present. 2. Schedule the Veteran for VA examinations to determine the current severity of his radiculopathy and cervical spine disability. 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 also 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 claims 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 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. §§ 5109B, 7112 (2012). _________________________________________________ Michael J. Skaltsounis 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 your appeal. 38 C.F.R. § 20.1100(b) (2017).