Citation Nr: 1805121 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-40 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for cervical spondylosis. 2. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine. 3. Entitlement to a rating in excess of 10 percent for right upper extremity carpal tunnel syndrome. 4. Entitlement to a rating in excess of 10 percent from May 19, 2008, to January 21, 2011, and in excess of 40 percent from January 21, 2011, for left upper extremity (dominant) carpal tunnel syndrome and cervical radiculopathy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from December 1983 to December 1997. This case was previously before the Board of Veterans' Appeals (Board) on appeal from September 2008 and November 2010 rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO). A February 2016 Board decision denied the claims listed on the Title Page. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In October 2017, the Court granted a Joint Motion for Remand (JMR). In the October 2017 Order, the Court vacated and remanded the Board's February 2016 decision for compliance with instructions provided in the JMR. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The basis for the October 2017 JMR with respect to the claims for increased ratings for cervical spondylosis and degenerative disc disease of the lumbar spine was that the VA examinations relied on by the Board in its February 2016 decision did not reflect consideration of Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the Court noted that 38 C.F.R. § 4.59 requires that, as applicable to the service connected cervical and lumbar spine disabilities at issue herein, range of motion testing should include results from active and passive motion and in weight-bearing and nonweight-bearing. As such and to insure compliance with the instructions of the Joint Motion, the AOJ will be directed to schedule the Veteran for a VA examination addressing the claims for the service connected cervical and lumbar spine disabilities that reflects consideration of Correia. Stegall v. West, 11 Vet. App. 268 (1998). The action requested above will also afford the opportunity to apply another recent Court decision, Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court noted that VA's Clinician's Guide specifically advises examiners to try to procure information necessary to render an opinion regarding flares from Veterans. Id. The Court found that the examination in question was inadequate because the examiner, although acknowledging that the Appellant was not then suffering from a flare of any of his conditions, failed to ascertain adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. Id. Therefore, on remand, the VA clinician who conducts the VA examination of the lumbar and cervical spine will be requested to provide the information with regard to the functional impairment caused by flare-ups that is required by the holding in Sharp. With respect to the claims for increased ratings for right carpal tunnel syndrome and left carpal tunnel syndrome and cervical radiculopathy, the Joint Motion found that the March 2015 VA examination addressing these claims was inadequate because it did not address the following instructions of the Board in a December 2014 remand: The Veteran reported painful cramps and spasms in his hands 10 to 12 times a day. Would such cramps and spasms increase his level of disability in his left arm to a severe level, or in his right arm to a moderate or severe level? Given the above, the AOJ will be directed to afford the Veteran a VA examination addressing the claims for increased ratings for right carpal tunnel syndrome and left carpal tunnel syndrome and cervical radiculopathy that complies with the Board's December 2014 instructions and the directives of the JMR. Stegall, supra. Accordingly, the case is REMANDED for the following action: 1. Arrange for a VA examination to determine the severity of the Veteran's service connected cervical and lumbar spine disabilities. The electronic record should be made available to the examiner. Range of motion testing in active motion, passive motion, weight-bearing, and nonweight-bearing for the cervical and lumbar spine should be accomplished. If the examiner is unable to conduct such 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 also address functional impairment, if any, during flare-ups. The range of motion lost during a period of flare-up or over-use must be indicated in degrees. If the examination occurs when a flare-up is not being experienced, or at a time without repeated use over a period of time, the examiner must ascertain adequate information, such as frequency, duration, characteristics, severity, or functional loss regarding the Veteran's flares by alternative means and estimate the Veteran's functional loss due to flares or repeated use based on all the evidence of record. The examiner should also note whether the low back disability or cervical spine disability results in incapacitating episodes of intervertebral disc syndrome, and indicate the total duration of any episodes. 2. Arrange for a VA examination to determine the severity of the Veteran's right carpal tunnel syndrome and left carpal tunnel syndrome and cervical radiculopathy. The electronic record should be made available to the examiner. The examiner should specifically state whether there is complete paralysis in either upper extremity or "mild," "moderate," or "severe" disability due to incomplete paralysis in either upper extremity, and provide a specific response to the following in this regard: Would the painful cramps and spasms in his hands 10 to 12 times a day described by the Veteran increase his level of disability in his left arm to a severe level, or in his right arm to a moderate or severe level? 3. After completion of the above and any other warranted development, the AOJ should re-adjudicate the claims that have been remanded. If a benefit sought on appeal remains denied, the AOJ shall issue an appropriate supplemental statement of the case. After the Veteran and his representative are given opportunity to respond, the case should be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The remanded claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ MARJORIE A. AUER 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).