Citation Nr: 1803896 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-04 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for cervical strain and magnetic resonance imaging (MRI) showing degenerative changes of mild facet arthropathy, mild central stenosis, and mild spondylosis. 2. Entitlement to an initial rating in excess of 10 percent from December 15, 2010, and in excess of 20 percent from November 10, 2014, for lumbar myofascial pain condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Morrad, Associate Counsel INTRODUCTION The Veteran had active service from May 1987 through May 2007. This matter comes before the Board of Veteran's Appeals (BVA or Board) from August 2011 and December 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that in a July 2015 decision, the RO increased the Veteran's disability rating for her lumbar myofascial pain condition from 10 percent to 20 percent, effective November 10, 2014. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in December 2016. A transcript of the hearing has been associated with the Veteran's electronic claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds additional development must be undertaken prior to adjudication of the Veteran's claim for service connection for cervical strain and MRI showing degenerative changes of mild facet arthropathy, mild central stenosis, and mild spondylosis, and her increased rating claim for lumbar myofascial pain condition. The Veteran claims that she suffers from a cervical condition as a result of her duties in service involving postal work, which included lifting heavy mail for 10 years. The Veteran was provided with a VA examination to determine the nature and etiology of her claimed cervical condition in February 2011. The VA examiner opined that the Veteran's current cervical spine strain and MRI with radiologic degenerative changes of mild facet arthropathy, mild central stenosis, and mild spondylosis is less likely as not caused by or a result of military duty. The rationale provided was that the Veteran was in the military for 20 years and at the time of the retirement physical exam there was no evidence of any spine pathology documented. There were no visits for neck pain during her twenty years of military duty. The examiner noted that the Veteran's complaints of neck pain are not within the proximate time period from her military discharge date in May 2007. She was in a motor vehicle accident (MVA) in September 2010, and it is after her MVA that she began to complain of constant and consistent neck pain. The examiner added that the Veteran's complaints of neck pain began several years after military discharge and became severe, constant, and consistent after she was in the MVA. Although the February 2011 VA examiner reviewed the Veteran's service treatment records and noted several complaints of lower extremity weakness, she did not mention the Veteran's complaints in January 2003 of a tingling sensation in the distal aspect of all her fingers and toes. An assessment of paresthesia was provided at the time. VA treatment records show that the Veteran reported similar symptoms in August 2007, three months after separation from service. The VA examiner noted that the Veteran did not complain of neck pain until several years after military discharge, but VA treatment records show that the Veteran reported pain in her neck and was diagnosed with benign paroxysmal positional vertigo and cervicalgia in October 2009, prior to her MVA in September 2010. As the above-mentioned service treatment records and post-service VA treatment records were not mentioned by the February 2011 VA examiner and because the examiner based her negative nexus opinion on the lack of a cervical condition noted while in service, the Board finds that an addendum medical opinion is required regarding the Veteran's claim for a cervical condition. Additionally, in December 2010, the Veteran submitted articles regarding the causes and symptoms of cervical spondylosis. Causes included occupations that involve neck motion and overhead work. Symptoms included numbness and weakness in the arms, hands and fingers. As such, the addendum opinion must consider the articles regarding cervical spondylosis submitted by the Veteran. The Veteran contends that her lumbar myofascial pain condition is more severe than what is represented by the current ratings. She was last afforded a VA back examination in September 2014, more than three years ago. The Court recently held in Correia v. McDonald, 28 Vet. App. 158 (2016), that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations 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. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. A review of the claims file reveals that the September 2014 VA examination report includes only active range of motion findings and does not include range of motion findings for passive range of motion. It also does not specify whether the results are weight-bearing or nonweight-bearing. As the previous examination report does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary to decide the claim. Accordingly, the case is REMANDED for the following action: 1. Please obtain an addendum opinion to the February 2011 VA examination report to assess the nature and etiology of the Veteran's cervical strain and MRI showing degenerative changes of mild facet arthropathy, mild central stenosis, and mild spondylosis. The electronic claims file, including a complete copy of this remand, must be made available to and reviewed by the examiner, and this fact should be noted in the accompanying medical report. The examiner should address the following regarding the Veteran's cervical condition: Is it at least as likely as not (50 percent or greater probability) that the Veteran's cervical strain and MRI showing degenerative changes of mild facet arthropathy, mild central stenosis, and mild spondylosis is related to her military service? In formulating an opinion, the examiner should consider and discuss the following: (a) The Veteran's service treatment records from January 2003 showing complaints of a tingling sensation in the distal aspect of all her fingers and toes, with an assessment of paresthesia. (b) The Veteran's post-service VA treatment records from August 2007 showing complaints of tingling and numbness all over her arms, legs, and fingertips. (c) The Veteran's post-service VA treatment records showing complaints of pain in the neck and balance problems, with a diagnosis of benign paroxysmal positional vertigo and cervicalgia in October 2009 prior to the September 2010 MVA. (d) Articles submitted by the Veteran in December 2010 showing the causes and symptoms of cervical spondylosis. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 2. Please schedule the Veteran for an appropriate VA examination to assess the current severity of her lumbar myofascial pain condition. The electronic claims file, including a complete copy of this remand, must be made available to and reviewed by the examiner, and this fact should be noted in the accompanying medical report. All indicated studies, including x-rays, should be performed. In accordance with Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner should record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If the back cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. If the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. The examiner should also note whether the lumbar myofascial pain condition results in incapacitating episodes, and indicate the total duration of any such episodes. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. 3. After completing the above action, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant 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 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). _________________________________________________ TANYA SMITH 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).