Citation Nr: 18143174 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-16 101 DATE: October 18, 2018 REMANDED Entitlement to an initial disability rating for a cervical spine disability in excess of 10 percent for the period from December 30, 2010 to March 5, 2013, and in excess of 20 percent therefrom (to exclude a period of a total rating from February 4, 2011 to May 1, 2011) is remanded. Entitlement to an effective date earlier than December 30, 2010 for the award of service connection for a cervical spine disability is remanded. Entitlement to an extension of the temporary total evaluation under 38 C.F.R. § 4.30 beyond May 1, 2011 following surgery for the service-connected cervical spine disability is remanded. REASONS FOR REMAND The Veteran had active duty service from February 13, 2005 to November 6, 2005, and from January 2, 2009 to October 2, 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 decision by the Department of Veterans Affairs (VA) Regional Office (RO). By that rating action, the RO, in part, granted service connection for cervical disc disease, status post C5 6 fusion (also claimed as a neck condition); an initial 10 percent rating was assigned, effective December 30, 2010--the date VA received the Veteran’s initial claim or compensation for this disability. The RO also awarded a temporary total evaluation (TTE) under 38 C.F.R. § 4.30 for the period from February 4, 2011 to May 1, 2011. Following expiration of the TTE on May 1, 2011, the initial 10 percent rating was restored. The RO assigned an initial 20 percent rating to the cervical spine disability, effective March 5, 2013--the date of a VA examination report reflecting an increase in severity of this disability. The Veteran disagreed with the initial 10 and 20 percent ratings assigned to the cervical spine disability for the respective periods on appeal; effective date of December 30, 2010 for the assignment of service connection for the cervical spine disability; and, requested an extension of the TTE beyond May 1, 2011 under 38 C.F.R. § 4.30 for convalescence following cervical spine surgery. The Veteran testified at a videoconference hearing before the undersigned in August 2015; a transcript of that hearing is associated with the record. In January 2016, the Board, in part, remanded the issues on appeal. The Board requested that the RO issue the Veteran a copy of the March 2015 Statement of the Case, wherein it adjudicated the initial evaluation, earlier effective date and temporary total evaluation claims for his cervical spine disability. In April 2016, the RO issued a Supplemental Statement of the Case (SSOC) that addressed the issues on appeal. (See April 2016 SSOC). The Veteran seeks, in part, initial ratings greater than 10 and 20 percent for his service-connected cervical spine disability for the prescribed periods on appeal. VA last examined the Veteran to determine the current (then) severity of his cervical spine disability in March 2013. While the March 2013 VA examiner reported range of motion findings of the cervical spine, the examiner did not express such findings in terms of the Veteran’s active motion, passive motion, weight-bearing motion, and non-weight-bearing motion. Since the March 2013 examination, the United States Court of Appeals for Veterans Claims has held that VA orthopedic examinations must include joint testing for pain on both active and passive motion, and both weight-bearing and non-weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). As such, lacking the required findings pursuant to Correia, the March 2013 examination report is inadequate, and the AOJ should ensure that the Veteran receives an examination that complies with the requirements outlined in Correia. In addition, the initial rating claim is inextricably intertwined with the issue of entitlement to an extension of the TTE beyond May 1, 2011 for surgery of the service-connected cervical spine disability. Harris v. Derwinski, 1 Vet. App. 180 (1991). Regarding the claim of entitlement to an effective date earlier than December 30, 2010 for the award of service connection for the service-connected cervical spine disability, the outcome of this claim is intertwined with the outcome of the initial rating claim for this disability. Therefore, the temporary total evaluation and earlier effective date claims must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Finally, the Board notes that since the issuance of the April 2016 SSOC and after certification of the appeal to the Board in June 2016, VA treatment records were received into the electronic record. These records reflect that the Veteran had continued to complain, in part, of neck pain. These records are relevant to the initial rating and temporary total evaluation claims. The Board notes that the Veteran’s Substantive Appeal with respect to these issues was filed on or after February 2, 2013 (i.e., March 2016). Evidence maybe considered without a waiver of initial RO review if the evidence was submitted by the appellant and/or representative where the substantive appeal is filed on or after February 2, 2013, such as here. See Section 501 of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law 112-154. In this case, however, because the VA treatment records were obtained by VA pursuant to its duty to assist and were in the record after certification to the Board in June 2016, and the Veteran has not waived initial RO consideration of these relevant records, a remand is required for issuance of issuance of an SSOC. See 38 C.F.R. §§ 19.37 and 20.1304 (2018). The matter is REMANDED for the following action: After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected cervical spine disability. The entire claims file must be made accessible to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain. The examiner must test the range of motion and pain of the cervical spine in active motion, passive motion, 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, he or she should clearly explain why that is so. Thomas H .O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carole Kammel, Counsel