Citation Nr: 18147753 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 08-28 076 DATE: November 6, 2018 REMANDED Entitlement to an initial rating for the cervical spine degenerative disc disease with arthritis in excess of 10 percent prior to December 10, 2010 and in excess of 20 percent thereafter, is remanded. Entitlement to an initial rating for the lumbar spine arthritis in excess of 10 percent prior to June 21, 2016 and in excess of 20 percent thereafter, is remanded. Entitlement to a separate evaluation for neurological impairment associated with a thoracolumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1978 to July 1981 and from February 1983 to December 2006. This matter comes before the Board of Veterans’ appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In April 2011, the Veteran testified before a Veterans Law Judge at a Board hearing at the RO; a transcript of the hearing is of record. In June 2011, the Board remanded the issues on appeal for further development. In a November 2014 decision, the Board denied entitlement to an initial rating in excess of 10 percent prior to October 13, 2011, and in excess of 20 percent thereafter, for the cervical spine degenerative disc disease with arthritis. The Board remanded the issue of entitlement to an initial rating in excess of 10 percent for lumbar spine arthritis. In March 2016, the Board denied entitlement to an initial rating in excess of 10 percent for lumbar spine arthritis. The Board also remanded the issues of entitlement to a separate compensable rating for neurologic manifestations of lumbar spine arthritis, and entitlement to an extraschedular rating based on the combined effects of the Veteran’s service-connected disabilities, to the agency of original jurisdiction (AOJ) for further development. The Veteran appealed the November 2014 and March 2016 Board decisions to the Court of Appeals for Veterans Claims(Court). In a December 2016 Memorandum Decision, the Court vacated the Board’s November 2014 decision with respect to entitlement to an initial rating in excess of 10 percent prior to October 13, 2011, and in excess of 20 percent thereafter, for service-connected cervical spine degenerative disc disease with arthritis, and remanded the issue for adjudication consistent with the Memorandum Decision. With respect to the March 2016 decision, the parties to the action submitted a Joint Motion for Partial Remand (JMPR) which was adopted by the Court in an Order issued in December 2016. In the JMPR, the parties asked that the Court vacate the Board’s decision only with respect to its denial of an initial rating in excess of 10 percent for service-connected lumbar spine arthritis. The Board subsequently remanded the case in July 2017 for compliance with the remand directives from the JMPR. A June 2016 rating decision increased the rating for lumbar spine arthritis to 20 percent, effective June 21, 2016. Furthermore, a June 2016 rating decision also found that there was no objective evidence of neurological impairment to warrant a separate evaluation. In an April 2018 rating decision, the RO granted a higher 20 percent rating for the service-connected cervical spine degenerative disc disease with arthritis, effective from December 10, 2010. Additionally, the lumbar spine arthritis was increased to 20 percent disabling effective June 21, 2016. However, as that increase did not represent a total grant of the benefits sought on appeal, the claim for increase remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Furthermore, the RO denied the entitlement to a separate evaluation for neurological impairment associated with thoracolumbar spine. The Board notes that the Veterans Law Judge who conducted the April 2011 hearing has retired and is no longer employed by the Board. The Veteran was informed that the Veterans Law Judge who conducted the April 2011 was no longer employed by the Board and offered the opportunity for a new hearing in an August 2018 letter. In a September 2018 submission, the Veteran declined a new hearing and requested that the Board consider his case on the evidence of record. Therefore, the Board may proceed with its decision. 1. Entitlement to an initial rating for the cervical spine degenerative disc disease with arthritis in excess of 10 percent prior to December 10, 2010 and in excess of 20 percent thereafter, is remanded. 2. Entitlement to an initial rating for the lumbar spine arthritis in excess of 10 percent prior to June 21, 2016 and in excess of 20 percent thereafter, is remanded. 3. Entitlement to a separate evaluation for neurological impairment associated with a thoracolumbar spine disability is remanded. In this case, the Veteran endorsed flare-ups during July 2015, June 2016, and January 2018 examinations, but the respective examiners did not provide an opinion as to the additional loss of range of motion during a flare-up and did not obtain all procurable data prior to finding the limitations of function during a flare-up could not be expressed without resorting to mere speculation. Therefore, the VA examination conducted on remand should address the functional limitations associated with a flare-up of the Veteran’s cervical and lumbar spines. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). On remand, the Veteran should be asked to furnish, or to furnish an authorization to enable VA to obtain, any additional private treatment records from providers who treated him for his claimed disabilities. Finally, given the time that will elapse on remand, updated VA treatment records should be obtained. Finally, the Veteran has alleged suffering from a neurological impairment associated with his service connected thoracolumbar spine disability. The December 2017 VA examiner found that the Veteran did not have radicular pain or other signs or symptoms due to radiculopathy. Given the claims for an increased rating for cervical spine degenerative disc disease with arthritis and lumbar spine arthritis could impact the claim for a separate evaluation for neurological impairment associated with a thoracolumbar, these claims inextricably intertwined with the claims for an increased rating which are being remanded by the Board. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records dated from December 2015 to the present, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Afford the Veteran an appropriate VA examination to determine the nature and severity of his cervical and lumbar spine disabilities. The record, to include a complete copy of this remand, must be made available to the examiner, and the examination report should include a discussion of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must provide all examination findings, along with a complete rationale for the conclusions reached. (a) The examiner should identify the current nature and severity of all manifestations of the Veteran’s cervical and lumbar spine disability. The examiner should record the range of motion observed on clinical evaluation in terms of degrees. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-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. (b) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (c) With specific regard to flare-ups, if the Veteran endorses experiencing them, the examiner must obtain 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. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has 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), but any member of the medical community at large could not provide such an opinion without resorting to speculation. All opinions expressed should be accompanied by supporting rationale. 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 the claims remain 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. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Iglesias, Law Clerk