Citation Nr: 18142722 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 11-07 383 DATE: October 16, 2018 REMANDED Entitlement to an evaluation for status post fusion of cervical spine from C3-C6 with compression fracture of C5 in excess of 30 percent is remanded. Entitlement to an evaluation for compression fracture L1 vertebral body in excess of 10 percent prior to February 20, 2012 and in excess of 20 percent thereafter is remanded. Entitlement to an evaluation for right upper extremity radiculopathy in excess of 20 percent prior to April 10, 2013 and in excess of 40 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1974 to October 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2009 and July 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In May 2011, the Veteran testified at a RO hearing before a Decision Review Officer. In November 2014, he testified at a Board hearing before a Veterans Law Judge (VLJ) no longer with the Board. In May 2017, the Veteran was sent a letter inquiring as to whether he wanted another hearing before a VLJ that would ultimately decide this appeal. See 38 C.F.R. 20.707 (2017). The Veteran did not respond to such correspondence. Therefore, the Board has found that another hearing has not been requested and proceeds with adjudication. Most recently, in January 2018, the Board remanded this matter for further evidentiary development. CERVICAL SPINE, LUMBAR SPINE, AND RIGHT UPPER EXTREMITY RADICULOPATHY are remanded. The Board finds that further development is necessary prior to appellate review of the claims on appeal. During May 2018 VA examinations, when asked to describe if pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time, the examiner stated she could not state without speculation whether there were limits on functional ability due to pain, weakness, fatigability, or incoordination as there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. However, the examiner did not indicate whether she had considered all procurable data (i.e., the Veteran’s statements regarding any functional loss upon use), and whether any member of the medical community at large could not provide such an opinion without resorting to speculation. See Sharp v. Shulkin, 29 Vet. App 26, 34-37 (2017). Additionally, the examiner found that the examinations were neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during a flare-up, and was unable to say without speculation what the functional loss would be during such a flare-up, due to there being no conceptual or empirical basis for making such a determination without observing function under a flare-up. However, in each examination, the examiner earlier noted that the Veteran did not report flare-ups, which is conflicting. If the Veteran did report flare-ups, the examiner also should have obtained information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. See Sharp, 29 Vet. App at 34-37. The examiner also did not make clear that she had considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), and that any member of the medical community at large could not provide such an opinion without resorting to speculation. See Sharp, 29 Vet. App at 34-37. As such, new VA examinations are necessary to properly assess the severity of each of the Veteran’s spine disabilities and the related radiculopathy of his right upper extremity. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for appropriate VA examinations to determine the current nature and severity of his lumbar spine and cervical spine disabilities. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all lumbar spine and cervical spine pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The lumbar spine and cervical spine should be tested in both active and passive motion, and in 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 should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. (Continued on the next page)   Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel