Citation Nr: 18143775 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-18 627 DATE: October 23, 2018 REMANDED Entitlement to an initial rating higher than 20 percent for cervical sprain is remanded. Entitlement to an initial rating higher than 40 percent for radiculopathy of the left upper extremity prior to September 15, 2014 and 20 percent from September 15, 2014, is remanded. REASONS FOR REMAND The Veteran had active service from November 1990 to November 2010. The Regional Office (RO) in a September 2014 rating decision granted service connection for cervical sprain and for radiculopathy of the left upper extremity and assigned a 20 percent rating for each disability, effective October 2, 2013, the date the Veteran’s claim was received. In a March 2016 rating decision, the RO increased the rating for radiculopathy of the left upper extremity to 40 percent effective October 2, 2013 (the date the claim was received) and resumed the 20 percent rating effective September 15, 2014. Thus, the issues on appeal are characterized as indicated above. The Board notes that the code sheet associated with the March 2016 rating decision includes a notation on the bottom of the second page indicating that a 30 percent evaluation was awarded for radiculopathy. However, this appears to be a typographical error, as the list of disabilities subject to compensation above the note shows that the Veteran was awarded a 40 percent rating for left upper extremity radiculopathy prior to September 15, 2014 and as the March 2016 rating decision clearly increased the rating for left upper extremity radiculopathy to 40 percent prior to September 15, 2014 Issue 1-2: Entitlement to an initial rating higher than 20 percent for cervical sprain and entitlement to an initial rating higher than 40 percent for radiculopathy of the left upper extremity prior to September 15, 2014 and higher than 20 percent from September 15, 2014 are remanded. As for the service-connected cervical sprain, the Veteran in September 2014 was afforded a VA examination. However, the examination did not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Specifically, the examination did not address passive range of motion measurements and pain on weight-bearing testing. Notably, the findings of the September 2014 VA examination are also inconsistent with the Veteran’s contention that he is entitled to a rating higher than 20 percent as his forward flexion was limited to 15 degrees with pain. See October 2014 notice of disagreement. Further, the September 2014 VA examiner’s findings pertaining to flare-ups are inconsistent as the examiner indicated that the Veteran did not report flare-ups, while also stating that he (the examiner) would have to resort to mere speculation to provide an opinion as to whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups. In making the latter determination, the examiner appeared to indicate that there may be a history of flare-ups, but failed to solicit the Veteran’s lay statements and consider alternative sources to ascertain information regarding the flare-ups. Thus, the September 2014 VA examination did not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). For the reasons discussed above the September 2014 VA examination is inadequate, and a new VA examination is necessary. As for the service-connected radiculopathy of the left upper extremity, the findings on the VA examination of the neck in September 2014 appear to be inherently inconsistent as the examiner indicated that the Veteran had moderate intermittent pain associated with radiculopathy in the left upper extremity but opined that he had mild radiculopathy of the left upper extremity. Further, these findings also are inconsistent with the other evidence of record, as the September 2014 examiner determined that the C5/C6 nerve roots of the upper radicular group were involved. Significantly, on the October 2013 VA neck Disability Benefits Questionnaire (DBQ) examination (which the Veteran submitted), the examiner noted that the Veteran reported that he had shooting pain down his left arm into his hand and that the C7 nerve roots of the middle radicular group were affected. Private medical records in September 2013 also show that the Veteran had numbness in his left index and middle fingers. The Veteran has not been afforded a VA neurological examination to determine the extent of neurological impairment associated with his left shoulder radiculopathy. In light of the evidence of record, such an examination is necessary to identify and evaluate all neurological abnormalities of the Veteran’s left upper extremity radiculopathy so that he may receive the maximum rating he is entitled to under the rating criteria. Lastly, there also is conflicting evidence as to whether the Veteran’s left upper extremity or right upper extremity is his dominant extremity, as on the VA DBQ examination for the shoulder and arm in October 2013 (which the Veteran submitted) the examiner indicated that the left extremity was his dominant extremity and on the September 2014 VA shoulder and arm examination the examiner indicated that the Veteran’s right hand was his dominant hand. The Board also notes that the RO in the March 2016 rating decision identified the left upper extremity as the dominant upper extremity, with a notation in the accompanying code sheet that a service treatment record filled out by the Veteran shows that he is left handed. However, in the September 2014 rating decision, the RO indicated that the left upper extremity was the Veteran’s minor extremity. On remand, the VA examiner is asked to identify clearly whether the Veteran’s left upper extremity or right upper extremity is his dominant extremity. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the current severity of his service-connected cervical sprain. The examiner should provide a full description of the cervical sprain and report all signs and symptoms necessary for evaluating the Veteran’s cervical sprain under the rating criteria. The examiner must test the Veteran’s cervical spine movements that are painful on active use, passive use, in weight-bearing, and non-weight-bearing. To the extent possible the examiner also must estimate any additional functional loss caused by the Veteran’s flare-ups. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), or a deficiency in the record (additional facts are required). 2. Also, schedule the Veteran for a VA neurological examination by a neurologist if possible, or other appropriate medical professional, to determine the current extent and severity of the service-connected left upper extremity radiculopathy. The claims file must be made available to the examiner for review in conjunction with conducting the examination of the Veteran. The examination report must comply with all protocols for rating this disability. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The examiner must do the following: a.) Clearly identify whether the Veteran’s dominant extremity is his left upper extremity or his right upper extremity. b.) Clearly identify all neurologic abnormalities of the Veteran’s left upper extremity radiculopathy, to include motor and sensory. The examiner must describe whether such abnormalities cause complete paralysis or incomplete paralysis (mild, moderate, or severe), neuritis, or neuralgia of the upper radicular group, middle radicular group, lower radicular group, all radicular groups, radial nerve, medial nerve, ulnar nerve, musculocutaneous nerve, and any other nerve (CONTINUED ON NEXT PAGE) of the left upper extremity. If there are overlapping symptoms among multiple nerves, the examiner should identify to the extent possible the impaired nerve that is most analogous to the Veteran’s symptoms. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mac, Counsel