Citation Nr: 1806014 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-20 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial rating for degenerative disc disease (DDD) with intervertebral disc syndrome (IVDS) and osteoarthritis in excess of 10 percent prior to October 2, 2014 and 20 percent thereafter. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1975 to January 1977 and from February 1979 to June 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The claims file is now entirely in VA's secure electronic processing system, Virtual VA and Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is claiming his DDD with osteoarthritis and IVDS is worse than his assigned rating provides. The Veteran submitted a statement in June 2012. The Veteran stated he was unable to turn his head without having to turn his entire body to see to the side and that his awarded disability rating was too low. The Veteran's medical records show the Veteran sought treatment for his back condition throughout the years (See July 2007 treatment records, April 2010 treatment records) and a June 2010 examiner noted the slight disc space narrowing in the Veteran's cervical spine between C3 and C4 and the moderate disc space narrowing at C5 through C7. The Veteran had a hearing in August 2014 before a hearing officer. The Veteran stated he had to work over his head sometimes, which caused him a great deal of pain. The Veteran also reported looking over his shoulder without turning his whole body was a problem. The Veteran noted his pain was usually an eight out of a ten and the pain when tipping his head back could last anywhere from twenty minutes to one hour. The Veteran stated at that point, he was no longer under a doctor's care for his condition. The Veteran had an examination for his back condition in October 2014. The examiner reviewed the Veteran's file and noted the Veteran's diagnosis of intervetebral disc syndrome (IVDS) and osteoarthritis of the cervical spine and retrolisthesis. The Veteran reported he had decreased range of motion in his neck. The Veteran stated he worked in an overhead position a lot and his head would lock up and would take a few seconds to move back to a new position. The Veteran reported his neck pain was on average a four or five out of a ten. The Veteran reported he suffered from flare-ups in which his pain was an eight out of a ten. The examiner noted his initial range of motion was as follows: forward flexion ended at 30 percent with painful motion beginning at 20 degrees. Extension of the cervical spine ended at 30 degrees with painful motion beginning at 15 degrees. Lateral flexion to the right ended at 35 degrees with painful motion beginning at 25 degrees. Lateral flexion to the left ended at 30 degrees with painful motion beginning at 20 degrees. Lateral rotation to the right ended at 50 degrees with painful motion began at 40 degrees. Left lateral rotation ended at 30 degrees with painful motion beginning at 30 degrees. After repetitive testing, forward flexion ended at 35 degrees, extension ended at 20 degrees, right lateral flexion ended at 25 degrees, left lateral flexion ended at 10 degrees, right lateral rotation ended at 50 degrees and right lateral rotation ended at 35 degrees. The examiner also noted the Veteran had additional functional loss in the form of less movement than normal, weakened movement, and pain on movement. The examiner reported the Veteran did not have ankylosis of the spine. The examiner reported that while the Veteran had IVDS, he had not had any incapacitating episodes over the last twelve months. While the examiner provided detailed information as to the limits of range of motion of the Veteran's cervical spine and reported the Veteran experienced flare-ups, the examiner did not provide an opinion of the functional loss suffered by a Veteran during a flare-up based upon inquires as to the frequency, duration, characteristic, and severity of the Veteran's flare ups. A recent Court decision addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Because the October 2014 examiner did not offer such an opinion, the examination is inadequate and a new examination is required. Barr v. Nicholson, 21 Vet. App. 303 (2007), Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain any of the Veteran's outstanding medical records and associate them with the claims file. 2. After completing the above development and all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination in order to determine the nature and etiology of his back condition. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. (a) The examiner must estimate any functional loss in terms of additional degrees of limited motion of the Veteran's back experienced during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, s/he should state whether all procurable medical evidence has been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. The examiner should provide a complete rationale for any opinion provided. 3. Readjudicate the claim on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. The Veteran 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Cynthia M. Bruce 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).