Citation Nr: 18159885
Decision Date: 12/20/18	Archive Date: 12/20/18

DOCKET NO. 12-02 356
DATE:	December 20, 2018
REMANDED
Entitlement to a rating in excess of 10 percent for C5-C6 degenerative disc disease (DDD) with spondylolysis is remanded.
 Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.
REASONS FOR REMAND
The Veteran had active duty service from June 1991 to March 1995. These matters originally came before the Board on appeal from a December 2009 rating decision and was remanded by the Board in January 2015, April 2017, and November 2017 for further development.  In a November 2017 decision, the Board denied both claims.  
The Veteran appealed the Board’s November 2017 decision to the Court of Appeals for Veterans Claims (CAVC).  A July 2018 Amended Joint Motion for Partial Remand, determined that the VA examinations relied upon by the Board were inadequate and that the issue of TDIU was inextricably intertwined, both issues require remand.

1. Entitlement to a rating in excess of 10 percent for C5-C6 degenerative disc disease (DDD) with spondylolysis is remanded.
The Veteran has intermittently reported flare ups, but has consistently reported functional loss after repetitive use.  The Board previously denied the Veteran’s claim based on VA examinations in March 2010, September 2011, and June 2017.  The March 2012, September 2011, and June 2017 VA examinations failed to address the Veteran’s reported functional loss due to flare ups and after repetitive use.  Per the Amended Joint Motion for Remand, and pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), another VA examination is needed to address the Veteran’s functional loss due to flare ups and after repetitive use. 
2.  Entitlement to a TDIU is remanded.
The Veteran filed a claim for TDIU in March 2010.  The March 2010, September 2011, and June 2017 VA examinations noted occupational impairment caused by the Veteran’s cervical spine disability.  Per the Amended Joint Motion for Remand, the claim for TDIU is inextricably intertwined with the increased rating claim and must also be remanded.  Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001).
The matters are REMANDED for the following action:
Schedule the Veteran for an examination by an appropriate clinician to determine the nature and severity of his cervical spine disability. The claims file must be provided to the examiner for review. The report of examination should include a detailed account of all the objective findings and observations relating to the Veteran’s cervical spine. 
Appropriate range of motion testing should be conducted, to include active motion and passive motion and, if applicable, weight-bearing, and nonweight-bearing. The examiner should assess where pain begins on the Veteran’s initial range of motion and upon repetitive testing. The examiner should also describe any pain, weakened movement, excess fatigability, and incoordination present. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.
The examiner is asked to describe whether pain significantly limits functional ability during flare-ups and after repetitive use over time, and if so, the examiner must estimate range of motion in degrees during those times. If the examination does not take place during a flare or after repetitive use over time, the examiner must glean information regarding the severity, frequency, duration and functional loss manifestations during such times from the Veteran, medical records, and other available sources to provide the requested estimations. Efforts to obtain such information must be documented. If there is no pain and/or no limitation of function, such facts must be noted in the report.
 
MICHAEL A. HERMAN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	E. Rekowski, Associate Counsel