Citation Nr: 1802632 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 11-03 872 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to a rating in excess of 20 percent for cervical spine strain. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD K. McDonald, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1972 to December 1975. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which granted an increased evaluation for the Veteran's service-connected cervical spine strain from 10 percent to 20 percent disabling. The Veteran appealed the 20 percent evaluation. The appeal was previously before the Board in March 2014 when it was remanded for further evidentiary development largely in the form of an additional VA examination to be afforded the Veteran. Then, in a March 2016 decision, the Board denied the Veteran's claim for a rating in excess of 20 percent for his cervical spine disability. The Veteran appealed the March 2016 denial to the United States Court of Appeals for Veterans Claims (the Court). In a June 2017 order, the Court vacated and remanded the Veteran's claim for further development, requiring an additional VA examination to address the Veteran's contentions regarding flare-ups of his disability. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Upon VA examination in May 2014, the Veteran reported that when he drove a children's bus and turned his head from right to left, it may kind of make the neck flare up. He also indicated that if he were to go into a crawl space on his job, this could result in a flare. The examiner noted that the Veteran did not have additional limitation in range of motion of the cervical spine following repetitive-use testing, but did have less movement than normal and pain on movement after repetitive use. VA examination report, May 2014. The examiner stated that pain and weakness are likely to occur when the neck is used repeatedly over time, and that flares could cause additional loss of motion, but that actual additional loss cannot be determined unless an examiner was present to objectively measure any additional loss in the examiner's opinion. Id. The Court instructs that an additional examination is now needed to consider the additional functional limitations presented by his disability, and that consideration must be given as to whether an examination may be scheduled during an active flare-up. The Board finds that the scheduling of an examination during a flare-up in administratively infeasible in this case. Specifically, the Veteran explicitly addresses flare-ups as being situationally dependent, i.e. occurring in unique scenarios such as crawling in a crawl space or turning his head while driving a school bus. The duration of any such flare is not clear from the Veteran's description, but predicting, scheduling, and providing adequate notice of a medical appointment around the occurrence of a sporadic flare is unwieldly at best. See Voerth v. West, 13 Vet. App. 117 (1999) (acknowledging practical difficulties in scheduling a medical examination when an appellant's worsened condition might only last a day or two). While it may not be possible for the Veteran to be personally examined during a flare-up of his condition, the Board will seek additional information about the severity of his symptoms during such a flare. Accordingly, the case is REMANDED for the following action: 1. Obtain recent VA treatment records not already associated with the claims file, to include those since approximately February 2014. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected cervical spine disability. The electronic claims file and a copy of this remand should be made available to and be reviewed by the examiner prior to his personal examination of the Veteran. In addition to the regular examination report, the examiner is particularly asked to address the following: a. If an active flare-up of the Veteran's cervical spine disability is not occurring on the day of the scheduled examination, please obtain a detailed description of a typical flare-up from the Veteran. To the extent possible, describe the frequency, duration, type, and severity of symptoms experienced during a typical flare-up. Be aware that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a particular basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation for any such opinion. b. To the extent possible, please estimate any additional limitation of range of motion that would be present during a flare-up in terms of degrees (based upon the history reported by the Veteran as needed). **If it is not possible to represent such a limitation by degrees, the examiner must adequately explain the reason why this cannot be done. ** A clear and complete rationale for any opinions or conclusions expressed should be provided. If any examiner is unable to offer any requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Undertake any other development deemed warranted, and then readjudicate the Veteran's claim on the basis of the additional evidence. If a benefit sought on appeal is not granted in full, provide the Veteran and his representative with a Supplemental Statement of the Case, then return the appeal to the Board. The appellant 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. §§ 5109B, 7112 (2012). _________________________________________________ K.J. ALIBRANDO 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).