Citation Nr: 18155328 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 13-04 740 DATE: December 4, 2018 REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to a rating excess of 10 percent for the service-connected thoracolumbar spine disability is remanded. REASONS FOR REMAND The Veteran enlisted in the United States Marine Corps Reserve in October 2005; he had an initial period of active duty for training (ACDUTRA) from January 2006 to August 2006. He was called to active duty in December 2007 and served until January 2009, including almost seven months in Iraq. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA) that, in pertinent part, denied the claim of entitlement to a rating in excess of 10 percent for the service-connected thoracolumbar spine disability and denied the claim of entitlement to service connection for a cervical spine disorder. The Veteran provided testimony at a videoconference hearing before the Board in September 2013. A transcript of the hearing is of record. In August 2018, the Board advised the Veteran that the Veterans Law Judge who conducted the September 2013 hearing is no longer employed by the Board and asked him whether he wished to appear at another hearing. He was advised that if he did not respond within 30 days of the date of the letter, the Board would assume he did not want another hearing and would proceed accordingly. The Veteran did not respond. Thus, the Board will proceed with the adjudication of his appeal. In March 2015 and again in February 2017, the Board remanded the current issues for further evidentiary development. The case is once again before the Board. 1. Entitlement to service connection for a cervical spine disorder is remanded. In its previous remand requesting a cervical spine examination, the Board specifically asked the examiner to address whether the Veteran’s in-service reports of headaches were actually symptoms of a cervical spine disorder. The Veteran was examined in December 2017. The examiner stated that “to link headaches and a cervical spine condition would be mere speculation as no treatment records related to neck issues or headaches in service are in the C-file.” The Board notes that the service treatment records in the claim file include references to headaches, and that the Veteran specifically noted on his report of medical history completed in October 2008 that he had frequent or severe headaches. An addendum opinion from the December 2017 examiner is necessary addressing the documented in-service headache complaints. 2. Entitlement to a rating excess of 10 percent for the service-connected thoracolumbar spine disability is remanded. The December 2017 VA examination addressing the current nature and severity of the Veteran’s service-connected thoracolumbar spine disability requires clarification. The December 2017 examiner noted the Veteran’s reported history of “progressive chronic low back pain with frequent flare-ups and muscle spasms which occur a few times a year, lasting a few weeks at a time.” However, under the section of the examination addressing flare-ups, the examiner checked “no” to the question of whether the Veteran reports flare-ups of the back disability. The December 2017 examiner must be asked to provide an addendum report addressing this inconsistency. Further, the Veteran’s reported flare-ups require further consideration. The examiner must provide an addendum opinion addressing whether pain, weakness, fatigability, or incoordination cause additional functional impairment during flare-ups or on repeated use over time. The examiner should assess any additional functional impairment in terms of the degree of additional range of motion lost. The examiner is advised that in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court addressed the adequacy of “mere speculation” opinions. The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion. Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of veterans. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. The matters are REMANDED for the following action: Return the file, and a copy of this Remand, to the VA examiner who conducted in the December 2017 examinations of the Veteran. a) With respect to the back disability, the examiner must provide an addendum opinion addressing the Veteran’s reported flare-ups of back symptoms, and specifically whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. The examiner should estimate any additional functional loss during flare-ups or on repeated use, based on the Veteran’s description of his flares’ severity, frequency, duration, and/or functional loss manifestations. If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups, without resorting to speculation, the examiner must provide an explanation for why this is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. (Continued on the next page)   b) With respect to the claim for service connection for a cervical spine disability, the examiner must provide an addendum opinion addressing whether it is at least as likely as not that the Veteran’s credible reports of headaches in service were actually symptoms of a cervical spine disorder as opposed to some other pathology. A complete rationale must be provided for all opinions expressed. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel