Citation Nr: 1804864 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-21 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to a rating in excess of 20 percent prior to April 11, 2016; and, to a rating in excess of 40 percent from April 11, 2016, for a low back disability. 3. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Rachel Mamis, Associate Counsel INTRODUCTION The Veteran had active air service from July 1975 to July 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal of March 2013 and October 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction over the case was subsequently transferred to the VA RO in Waco, Texas. A review of the record shows that in a May 2016 rating decision, the Veteran was assigned a 40 percent rating for his back, effective April 11, 2016. That does not constitute a full grant of the benefit sought on appeal. However, the Board has limited its consideration accordingly. In connection with this appeal, the Veteran testified at a hearing before a Veterans Law Judge at the RO in August 2017. A transcript of that hearing has been associated with the claims file. REMAND The Board finds that additional development is required before the issues on appeal are decided. Entitlement to Service Connection for a Cervical Spine Disability The Veteran asserts that he has a cervical spine disability due to service; or alternatively, that it was caused or aggravated by his service-connected low back disability. More specifically, the Veteran asserts that he injured his neck in the same incident in which he injured his low back. A review of the post-service medical evidence of record shows that at a September 1991 VA examination, the Veteran reported pain and stiffness in his neck, as well as the presence of cervical muscle spasms. In addition, VA medical treatment records show that the Veteran has received treatment for neck pain since at least 2010, which has continued to increase in severity since that time. In July 2013, diagnostic imaging studies revealed cervical spine degenerative disc disease. In light of the Veteran's reports of experiencing the onset of neck pain while in service, and post-service medical evidence showing the diagnosis of a current neck disability; the Board finds that the Veteran should be scheduled for a VA examination to determine the nature and etiology of his cervical spine disability, to include whether such condition was caused or aggravated by his service-connected low back disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Entitlement to an Increased Rating for Low Back Disability The Veteran asserts that his low back disability is worse than contemplated by the currently assigned rating. A review of the record shows that the Veteran was last afforded a VA examination of his low back in April 2016. The Board notes that VA examinations for musculoskeletal disabilities 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); 38 C.F.R. §4.59 (2017). Additionally, for a joint examination to be adequate, the 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. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board has reviewed the April 2016 VA examination report and concludes that the findings do not meet the requirements of 38 C.F.R. §4.59 pursuant to Correia and do not meet the requirements outlined by the Court in Sharp. Specifically, the examination report does not reflect joint testing for pain on passive motion or in weight bearing or non-weight bearing, and the examiner did not provide the degree of additional loss of range of motion because the examination was not being conducted during a flare-up. Therefore, the Board finds that further examination is necessary. Entitlement to a TDIU The Board notes that the Veteran does not currently meet the schedular criteria for assignment of a TDIU. Therefore, the Board finds that the Veteran's claim for TDIU is inextricably intertwined with the claims on appeal. Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Additionally, current treatment records should be identified and obtained before a decision is made in the appeal. Accordingly, the case is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his cervical spine disability. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present cervical spine disability had its onset during the Veteran's active service, or is otherwise etiologically related to such service, to include the in-service incident in which the Veteran injured his back The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran's cervical spine disability was caused or chronically worsened by his service-connected lumbar spine disability, to include any altered gait and/or body mechanics resulting from such. The rationale for all opinions expressed must be provided. 3. Then, schedule the Veteran for an appropriate VA examination to determine the current level of severity of all impairment resulting from his service-connected low back disability. The claims file must be made available to, and reviewed by the examiner. All indicated studies should be performed. The examiner should provide all information required for rating purposes, to specifically include range of motion in active motion, passive motion, weight bearing, and non-weight bearing. 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 why that is so. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, incoordination; and the effects of the service-connected disability on the Veteran's ordinary activity, including his ability to work. The examiner should also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner should identify the extent of the Veteran's functional loss during flare-ups and offer range of motion estimates based on that information. If the examiner cannot provide any of the requested findings without resorting to speculation, the examiner must state why that is so and provide a detailed rationale as to the reason why the requested findings could not be provided. 4. Confirm that the VA examination reports and all opinions provided comport with this remand and undertake any other development found to be warranted. 5. Then, readjudicate the issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow for appropriate time for response. Then, return the case to the Board. 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. §§ 5109B, 7112 (2012). _________________________________________________ Kristin Haddock 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).