Citation Nr: 1806282 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 03-32 125 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to a rating in excess of 20 percent for mild multilevel degenerative disc disease of the cervical spine from September 1, 2013. REPRESENTATION Appellant represented by: Joel Ban, Attorney at Law ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1970 to May 1974 in the United States Navy. This matter comes to the Board of Veterans' Appeals (Board) from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In an August 2012 notice of disagreement, the Veteran expressed disagreement with the rating of his cervical spine disability from the initial rating effective January 8, 2003. However, in his August 2013 substantive appeal the Veteran limited his appeal to the period from September 1, 2013, the effective date of the current 20 percent rating. In light of this, the Board is only considering an increase in rating from September 1, 2013. In April 2017, the Board found an examination the Veteran underwent did not comply with the United States Court of Appeals for Veterans Claims (Court) decision in Correia v. McDonald, 28 Vet. App. 158 (2016) and 38 C.F.R. § 4.59, and as a result the Board remanded for an additional examination. The case is now properly before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Pursuant to the Board's April 2017 remand directives, the Veteran underwent VA examination of his cervical spine in August 2017. Upon review of the examiner's report, the Board finds an additional remand is required in order to ensure compliance with a recent decision of the Court. During the August 2017 examination, the Veteran reported that he has flare-ups almost daily if he rapidly moves his neck or jars it in any way, requiring him to rest it and take pain medication. The examiner noted that the Veteran wasn't experiencing a flare-up at the time of the examination. Due to this, the examiner indicated an inability to comment on, without resorting to mere speculation, the degree to which pain, weakness, fatigability or incoordination significantly limit the Veteran's functional ability with flare-ups. The examiner further explained that without an examination during a flare-up an "opinion could only be made assuming Veterans' subjectively reported limitations to range of motion are as accurate as if obtained via the objective measurement of a qualified health care provider. It is the medical opinion of this examiner that such an assumption cannot be reasonably and consistently defended." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court discussed a similar opinion and rationale and found such to be inadequate. In this regard, the Court stated that "[b]ecause the VA examiner did not . . . estimate the veteran's functional loss due to flares based on all the evidence of record-including the veteran's lay information-or explain why she could not do so, the . . . examination was inadequate". Sharp, 29 Vet. App at 35 (emphasis added). Additionally, the Court in Sharp reiterated that the Board can accept an examiner's statement that an opinion cannot be provided without resorting to speculation, but "it must be clear that this is predicated on a lack of knowledge among the 'medical community at large' and not the insufficient knowledge of the specific examiner." Sharp, 29 Vet. App at 36 (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). The examiner did not provide sufficient information for the Board to draw such a conclusion. In light of the above, remand is required in order to ensure the Veteran is provided an examination in compliance with VA law. Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding VA records of evaluation and/or treatment since June 2016. 2. Return the claim folder or access to the electronic file to the examiner who performed the August 2017 cervical spine examination or, if not available, another appropriately qualified examiner. Request that the examiner review the detailed opinion provided in the August 2017 report regarding the assessment of the degree of pain, weakness, fatigability or incoordination experienced by the Veteran during flare-up episodes. As required by the rating criteria, the Board previously requested an opinion as to whether any pain associated with the Veteran's cervical spine disability could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. If the Veteran was not experiencing a flare-up at the time of the examination, the examiner should estimate the Veteran's functional loss due to flare-ups based on all the evidence of record, including the Veteran's lay statements, or explain why she or he could not do so. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The August 2017 examiner provided a detailed explanation why an opinion was not feasible based on his knowledge and experience. The Board requests that the examiner further comment on whether this conclusion is a personal opinion or represents the opinion of the "medical community at large" as required by the Court in Sharp. A clear rationale for all opinions should be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After undertaking any additional development deemed appropriate, adjudicate the claim in light of any additional evidence added to the record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ J. W. FRANCIS 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).