Citation Nr: 18159039 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-60 391 DATE: December 18, 2018 REMANDED Entitlement to an initial rating greater than 10 percent for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1990 to October 1991. This appeal to the Board of Veterans’ Appeals (Board) is from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The rating decision that granted service connection for the cervical spine disability noted that the Veteran’s claim was for the thoracic and cervical spine. In his notice of disagreement with the initial 10 percent rating for the cervical spine, the Veteran asserted that the RO had not adjudicated the thoracic spine disability and that this should also be granted based on the favorable opinion. The RO addressed this in the November 2016 statement of the case. In doing so, the RO essentially acknowledged that the thoracic spine was service connected, but that a separate rating could not be assigned because his lumbar disability is also service connected and rated at 60 percent disabling. As such, assigning a separate rating for the thoracic spine cannot be done without violating the rule against pyramiding. See 38 C.F.R § 4.14. 1. Entitlement to an initial rating greater than 10 percent for a cervical spine disability is remanded. The Veteran submitted private treatment records that show he had an anterior cervical discectomy at C6-C7 in February 2018. Since it is unclear if the surgery involves a period of convalescence to warrant the assignment of a temporary total rating, the RO must adjudicate this issue first since it could impact the Board’s adjudication of the increased rating claim. All pre-and post-surgical treatment records from Pikeville Medical Center and Dr. N. M. should be associated with the file and as well as any treatment records from East Kentucky Medical Group since November 2016. All VA treatment records since November 2017 should also be added to his file. The Veteran has also not had a VA examination since the surgery, so one should be scheduled. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Pikeville Medical Center, East Kentucky Medical Group (for records since November 2016), and Dr. N. M. Make two requests for the authorized records from Dr. N.M. and these medical facilities, unless it is clear after the first request that a second request would be futile. 2. Obtain and associate with the file the Veteran’s VA treatment records since November 2017. 3. After all the above development is completed, schedule him for a VA examination to determine the severity of his cervical spine disability. The claims file should be made available to the clinician to review. A complete history should be elicited from the Veteran, and any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The following should be included in the report: a) Range of motion testing should be undertaken, to include after repetitive use. The examiner is to report the range of motion measurements in degrees. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; (2) after repetitive use over time; (3) in weight bearing and non-weight bearing; and (4) as a result of pain, weakness, fatigability, or incoordination. b) The examiner should offer opinions with respect to the additional limitation of motion during flare-ups based on estimates derived from information procured from relevant sources, including the Veteran’s lay statements. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examinations were not performed during a flare-up. c) The examiner should also address whether there is a difference in active range of motion versus passive range of motion. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In any event, the examiner should fully describe the any associated functional limitations. d) The examiner must, at a minimum, ask the Veteran to describe the severity, frequency, duration, and functional loss manifestations related to flare-ups, to include whether there have been any changes since the last examination. e) If the examiner is unable to render the requested opinions without resorting to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. f) The clinician should also evaluate and report all findings associated with the scars from the February 2018 cervical spine surgery. 4. Prior to readjudicating the claim for a higher rating for the cervical spine disability, the RO must complete any needed development and notice associated with the cervical spine surgery and adjudicate whether he is   entitled to a temporary total rating for convalescence following the surgery. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Bredehorst