Citation Nr: 1806878 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-02 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent beginning March 29, 2011, for lumbosacral strain. 2. Entitlement to a disability rating in excess of 10 percent prior to May 1, 2014, and in excess of 20 percent thereafter for cervical strain. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel INTRODUCTION The Veteran had active service in the United States Navy August 1987 to August 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida (hereinafter, Agency of Original Jurisdiction (AOJ)). In the November 2007 rating decision, the AOJ granted service connection for lumbosacral strain and assigned a 20 percent rating, as well as granted service connection for cervical strain with a 10 percent rating, both effective September 1, 2007. The Veteran then filed a claim for an increased rating for his back disabilities received March 29, 2011. Subsequently, in the May 2014 rating decision the AOJ awarded a 20 percent rating for the Veteran's cervical spine, effective May 1, 2014. The Board notes that the AOJ has assigned separate ratings for separate periods of time during the appeal period. Thus, the Board has characterized this claim in light of the distinction noted in Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (staged ratings during the appeal of any increased rating claim, a practice known as "staged ratings.") The appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran seeks entitlement to a disability rating in excess of 20 percent for lumbosacral strain from March 29, 2011, the date of claim requesting an increased rating for the Veteran's back disabilities. Additionally, the Veteran also seeks entitlement to a disability rating in excess of 10 percent prior to May 1, 2014, and in excess of 20 percent thereafter for cervical strain. In connection with the claim, the Veteran underwent VA examination in April 2011, and most recently in May 2014, where the examiner was unable to state without undue speculation whether pain, weakness, fatigability, or incoordination could significantly limit the Veteran's functional ability during flare ups, or when the back or neck are used repeatedly over a period of time. The U.S. Court of Appeals for Veterans Claims (Court) has recently made clear that a statement such as the one the May 2014 VA examiner made concerning flare-ups, without more, renders an examination inadequate. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). As the Court explained in Sharp, "the VA Clinician's Guide makes explicit what DeLuca clearly implied: it instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves." Id. at 6. Even when the claimant is not experiencing a flare-up at the time of the examination, a VA examiner must elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record-including the Veteran's lay information-or explain why he could not do so. Given the inadequacy of the most recent examination of record, additional VA examination is required. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder updated private and VA treatment records. 1. Afford the Veteran an appropriate VA examination to determine the nature and severity of his service-connected cervical and lumbar spine conditions. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The VA examiner should provide a complete rationale for any opinions provided. The examiner should also determine whether the Veteran manifests any neurologic deficits associated with his service-connected thoracolumbar and cervical spine disabilities. 3. Thereafter, the Veteran's claims should be readjudicated. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).