Citation Nr: 18159742
Decision Date: 12/19/18	Archive Date: 12/19/18

DOCKET NO. 17-01 621
DATE:	December 19, 2018
REMANDED
Entitlement to a rating in excess of 10 percent for a cervical spine disability is remanded.
REASONS FOR REMAND
The Veteran served on active duty from May 1985 to October 2005.  This matter comes before the Board of Veterans’ Appeals (Board) from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.
The Board finds that a more contemporary VA examination is required to properly assess the current severity of the cervical spine disability.  The most recent VA examination provided to the Veteran for the cervical spine was in January 2013.  The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination.  Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  However, the evidence of record indicates the cervical spine disability may have worsened since the January 2013 examination.  Specifically, the Veteran submitted private treatment records showing an August 2017 MRI indicating cervical radiculopathy, multilevel cervical disc disease, and mild canal stenosis.  In addition, the Veteran contends his January 2013 examination was inadequate because he was not properly diagnosed.  
VA is required to provide the Veteran a contemporaneous VA examination to assess the current nature, extent and severity of a service-connected disability.  Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997).  The duty to conduct a contemporaneous examination is triggered when, as here, the evidence indicates that there has been a material change in disability and the available evidence is too old.  Weggenmann v. Brown, 5 Vet. App. 281 (1993); Caffrey v. Brown, 6 Vet. App. 377 (1995).
Further, the Board notes that the record does not contain VA or private medical documents subsequent to the January 2013 examination other than an August 2017 MRI submitted by the Veteran.  Therefore, a remand is necessary to obtain current medical records and a new VA examination.
The matter is REMANDED for the following action:
1. Obtain any VA or private medical records of treatment that are not already of record and associate them with the claims file. This request should specifically include records from Touchstone Imaging Hurst.
2. Then, schedule the Veteran for a VA examination of a service-connected cervical spine disability.  The examiner must review the claims file and should note that review in the report.  All indicated tests and studies should be accomplished, and all clinical findings must be reported in detail.  The examiner should state all examination findings, with the rationale for the comments and opinions expressed.  The examiner should address the August 2017 MRI.  The examiner must provide the following:
(a.) Identify the existence, and frequency or extent, as appropriate, of all symptoms associated with the cervical spine disabilities.
(b.) Conduct range of motion testing for active and passive motion and weight-bearing and nonweight-bearing of the cervical spine, expressed in degrees.
(c.) Provide ranges of cervical spine motion with specific findings as to whether there is objective evidence of pain on motion, weakened motion, excess motion, fatigability, incoordination, or on flare up.
(d.) State whether or not ankylosis of the cervical spine is shown.
(e.) State whether there are any neurological residuals of the cervical spine disability.  If so, state what nerves are affected and the severity of the symptoms.
 
Harvey P. Roberts
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Kass, Associate Counsel