Citation Nr: 18142773 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-33 336 DATE: October 17, 2018 REMANDED Entitlement to a rating in excess of 10 percent for degenerative disc disease and degenerative joint disease of the cervical spine, status post anterior cervical discectomy and fusion, prior to December 10, 2015, and in excess of 20 percent thereafter, is remanded. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine prior to December 10, 2015, and in excess of 20 percent thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1977 to July 1986; from September 1989 to March 1991; and from May 1998 to October 2006. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln Nebraska. The RO, in pertinent part, denied ratings in excess of 10 percent for service-connected disorders of the cervical and lumbar spine. In a March 2016 rating decision, the RO increased the rating for each disorder to 20 percent, effective December 10, 2015. In Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the United States Court of Appeals for Veterans Claims held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation. Here, the issue of entitlement to a TDIU is before the Board as part of the Veteran’s increased rating claims. See also AB v. Brown, 6 Vet. App. 35, 38-39 (1993). 1. Entitlement to a rating in excess of 10 percent for a cervical spine disorder prior to December 10, 2015, and in excess of 20 percent thereafter, is remanded. 2. Entitlement to a rating in excess of 10 percent for a lumbar spine disorder prior to December 10, 2015, and in excess of 20 percent thereafter, is remanded. The Veteran last underwent VA examination of his cervical spine in October 2017. Although the Veteran reported flare-ups, the examiner indicated that the examination was not being conducted during a flare-up and that it was not possible to express the additional functional loss experienced during flare-ups in terms of degrees without resorting to mere speculation because flare-ups varied with the activity performed. Governing law requires that if a Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time at the time of an examination, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. See, e.g., Sharp v. Shulkin, 29 Vet. App. 26 (2017). An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. Here, it does not appear that that was accomplished. Another examination is required. The Veteran’s claims for higher disability ratings for his cervical and lumbar spine disorders were addressed in a March 2016 statement of the case (SOC). Although the appeal with respect to those issues was certified to the Board in July 2016, following receipt of the Veteran’s substantive appeal, the agency of original jurisdiction has functionally retained jurisdiction of the matter in that it has continued to develop and readjudicate the claims, to include obtaining additional examinations in May 2017 and October 2017 and revisiting the ratings assigned therefor in September 2017 and October 2017 rating decisions. As such, it has not affected a true “transfer” of that matter to the Board. Under the circumstances, issuance of a supplemental SOC (SSOC) is required under the provisions of 38 C.F.R. §§ 19.31 and 19.37. 3. Entitlement to a TDIU rating is remanded. Finally, because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. As such, remand of the claim for a TDIU is also required. The matters are REMANDED for the following action: 1. Obtain copies of records pertaining to any relevant VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination of his cervical spine. The examiner should review the record. In accordance with the latest worksheets, the examiner should provide a detailed review of the Veteran’s pertinent medical history, current complaints, and the nature and extent of his disorder. The examiner should describe whether pain, weakness, fatigue, and/or incoordination significantly limits functional ability during flare-ups or with repetitive use, and if so, the examiner should express that functional loss in terms of loss in range of motion. If the examination does not take place during a flare-up, or if the Veteran is unable to perform repetitive use testing, the examiner should have the Veteran describe and/or demonstrate the extent of loss in range of motion during flare-ups or with repetitive use and should estimate the extent of such loss in range of motion in terms of degrees. If there is no pain and/or no limitation of function, such must be noted in the report. Range of motion findings reported in degrees must be provided, and testing must be conducted as to the following, if feasible: active motion, passive motion, weight-bearing, and non-weight-bearing. The degree at which pain begins must be documented. 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. A complete rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Howell, Associate Counsel