Citation Nr: 18159112 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 17-00 284 DATE: December 18, 2018 REMANDED ISSUES Entitlement to an initial disability rating higher than 10 percent for a cervical spine disability is remanded. Entitlement service connection for a right upper extremity neurological disability is remanded. Entitlement service connection for a left upper extremity neurological disability is remanded. REMAND The Veteran served on active duty in the United States Marine Corps from November 2005 to December 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. At the outset, the Board notes that when VA undertakes to provide an examination or obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To be considered adequate, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, a medical examiner is not free to simply ignore a Veteran’s lay statements recounting symptoms or events. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, where the evidence indicates that a service-connected disability has worsened since the last VA examination, and that examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121; Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). The Board also notes that the United States Court of Veterans Appeals (Court) recently held that VA examinations of joints must include range of motion testing in passive and active motion, as well as with and without weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Court also recently held that the mere lack of an opportunity for a VA examiner to observe a flare-up of a service-connected condition is an insufficient basis for not estimating the flare-up’s functional effects. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran was afforded a VA cervical spine examination in July 2015. The examiner conducted range of motion testing, but not in passive and active motion, and not with and without weight-bearing. Although the examiner noted the Veteran’s report of flare-ups of his condition, she neglected to provide estimated additional loss of range of motion during flare-ups. The examiner further indicated the Veteran did not have a diagnosis of cervical radiculopathy. In a July 2016 correspondence, the Veteran’s representative argued that the VA examiner had not adequately addressed the Veteran’s reported flare-ups of his cervical spine condition. The examiner also noted it was unclear from the examination report whether diagnostic neurological testing had been conducted, or whether the examiner had simply relied on past results of record. In this regard, the representative relayed the Veteran’s reports that he continued to experience radicular symptoms, to include numbness and tingling. Specifically, the Veteran reported he experienced these symptoms at work or while being active, and that the symptoms included loss of fine motor skills, such as texting on his phone, and having to pull his car to the side of the road. It appears that on the basis of the July 2016 correspondence, the Veteran was scheduled for an additional VA examination, but he did not appear. In a December 2016 correspondence, the Veteran’s representative relayed the Veteran’s apology for failing to appear at the examination, and requested an additional examination be scheduled. In a June 2018 correspondence, the representative noted the Veteran’s examination took place almost three years prior, and again requested an additional examination. Under the circumstances outlined above, the Board finds a remand is warranted for additional VA examinations to determine the current severity of the Veteran’s cervical spine disability, in addition to the nature and etiology of any present upper extremity neurological disability or disabilities. The examiner will be instructed to perform the examination in such a way as to comply with the Court’s recent holdings in Correia and Sharp. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Afford the Veteran a VA examination to determine the current severity of his service-connected cervical spine disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. The examiner is directed to perform range of motion testing to determine the extent of limitation of motion due to pain on active motion and passive motion, as well as with weight-bearing and without weight-bearing. If the examiner is unable to conduct the required testing or concludes the required testing is not necessary in this case, he or she should clearly explain why this is so. The examiner should further discuss additional functional limitation of the cervical spine disability with repeated movement over time and upon flare-ups. Any such additional limitation of motion should be expressed in additional degrees of lost motion. The examiner must attempt to provide an estimate, even in the absence of an opportunity to observe any reported flare-up. The estimate may be based on the Veteran’s reports of limitation during such flares. 3. Afford the Veteran a VA examination to determine the nature and etiology of any present upper extremity neurological disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should identify all right and/or left upper extremity neurological disabilities present during the period of the claim, to include cervical radiculopathy. If the examiner determines no upper extremity disability has been present during the period of the claim, he or she should provide a medical explanation for his or her finding. In determining whether the Veteran has any upper extremity neurological disability, the examiner should consider the Veteran’s reports that he has experienced numbness and tingling in the upper extremities, to include loss of fine motor function. Then, with respect to each identified right and/or left upper extremity neurological disability, the examiner should state whether it is at least as likely as not (50 percent probability or greater), that the disability is proximately due to the Veteran’s service-connected cervical spine disability. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Undertake any other development determined to be warranted. (Continued on the next page)   5. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel