Citation Nr: 18149649 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 08-14 801 DATE: November 14, 2018 REMANDED The issue of entitlement to an increased disability rating in excess of 10 percent prior to February 16, 2012 for herniated nucleus pulposus at the C6-7 (cervical spine disability) is remanded. The issue of entitlement to an increased disability rating in excess of 40 percent for peripheral neuropathy of the right upper extremity associated with C6-7 radiculopathy associated with the cervical spine disability (right upper extremity disability) is remanded. REASONS FOR REMAND The Veteran retired from service with the United States Navy after serving on active duty from July 1982 to July 2003. In October 2016, the Board issued a decision denying, in pertinent part, the Veteran’s claim for a disability rating in excess of 10 percent prior to February 16, 2012, and in excess of 40 percent from February 16, 2012 for the cervical spine disability; and declining to adjudicate the issue of an increased disability rating for radiculopathy of the bilateral upper extremities associated with the cervical spine disability. He appealed that decision to the United States Court of Appeals for Veterans’ Claims (Court). By a March 2018 Memorandum Decision, the Court, in relevant part, affirmed the Board’s decision with respect to the issue of a disability rating in excess of 40 percent from February 16, 2012 for the cervical spine disability. However, the Court set aside the Board’s denial of a disability rating in excess of 10 percent prior to February 16, 2012 for the cervical spine disability and declination to adjudicate the issue of an increased disability rating for the right upper extremity disability and remanded the matter for further action consistent with its decision. 1. The issue of entitlement to an increased disability rating in excess of 10 percent prior to February 16, 2012 for the cervical spine disability is remanded. During the pertinent period, the Veteran underwent a VA examination in February 2007. February 2007 VA Examination Report. Despite his complaints of flare-ups between one and two times per month, which consisted of muscle spasms and stiffness that prevented him from turning or bending, the VA examiner did not offer an opinion as to limitation of motion or function during a flare-up episode. Cf. Correia v. McDonald, 28 Vet. App. 158, 170 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). As such, a remand is necessary for an addendum VA medical opinion. As another matter, there appears to be a gap in the VA treatment records from September 2010 to September 2015. It is unclear whether all relevant, outstanding VA treatment records have been associated with the claims file. For this reason, a remand is also necessary to obtain all relevant, outstanding VA treatment records. 2. The issue of entitlement to an increased disability rating in excess of 40 percent for the right upper extremity disability is remanded. As indicated above, the Court determined the Veteran properly initiated an appeal of this claim through his April 2008 VA Form 9, which constituted a notice of disagreement. No Statement of the Case (SOC) has been issued by the Regional Office with respect to this claim. Therefore, a remand is necessary for the issuance of a SOC. The matters are REMANDED for the following action: 1. Obtain all relevant, outstanding VA treatment records, to include all relevant, outstanding VA treatment records between September 2010 and September 2015. 2. Once the first request has been completed, to the extent possible, issue a SOC addressing the issue of entitlement to an increased disability rating in excess of 40 percent for the right upper extremity disability. 3. Once the first request has been completed, to the extent possible, obtain an addendum medical opinion from an appropriate medical professional regarding the nature and severity of the Veteran’s cervical spine disability prior to February 16, 2012. After reviewing the claims file prior to February 16, 2012, the examiner should: (a.) Describe the Veteran’s reports of flare-up episodes prior to February 16, 2012, to include his report of flare-ups during the February 2007 VA examination. If there is any additional limitation of motion during a flare-up, provide an estimate, in degrees if possible, of the limitation of motion. If unable to provide an estimate, explain why. If there is any additional limitation of function during a flare-up, discuss its impact in terms of its severity, frequency and duration. Specifically, if factors such as pain, weakness, fatigability, or incoordination limit range of motion or functional ability during a flare-up, discuss its impact in terms of its severity, frequency and duration. If such factors do not limit range of motion or functional ability during a flare-up, explain why. If an opinion cannot be rendered without resorting to mere speculation, the examiner should state the same and explain why. 4. Once the above requests have been completed, to the extent possible, readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Suh, Associate Counsel