Citation Nr: 1823982 Decision Date: 04/19/18 Archive Date: 04/26/18 DOCKET NO. 13-05 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a rating in excess of 10 percent for cervical spine degenerative joint disease (DJD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1975 to December 1975 and from October 2003 to March 2005, to include service in Iraq and was awarded a Combat Infantryman Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO). The Veteran withdrew his request for a hearing before a Veterans Law Judge in September 2014. A November 2016 Board decision denied a rating in excess of 10 percent for cervical spine DJD; denied a rating in excess of 30 percent for posttraumatic stress disorder and remanded for further development (issuance of a statement of the case (SOC)) two other claims (service connection for diarrhea and fibromyalgia). The Veteran appealed the Board's decision (as to the cervical spine disability claim only) to the United States Court of Appeals for Veterans Claims (CAVC). (Regarding the service connection claims, the RO issued a SOC, but as the Veteran did not thereafter file a substantive appeal those issues are not before the Board.) In October 2017, the parties - the Veteran and the legal representative of the VA, the Office of the General Counsel - filed a Joint Motion for Partial Remand (Joint Motion) to vacate the Board's decision to the extent that it denied a rating higher than 10 percent for cervical spine DJD , and to remand the case to the Board; that the CAVC granted the Joint Motion. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In the October 2017 Joint Motion, the parties noted that the Board did not reconcile conflicting private and VA evidence in the record as to whether the Veteran's service-connected cervical spine disability included neurological manifestations, for which the applicable rating criteria provide a separate rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, Note 1. The Board's statement of reasons as to why a separate rating was not warranted in this case was found to be inadequate. Therefore, the parties agreed that a VA neurological examination, with objective neurological diagnostic testing, was necessary to resolve the conflicting medical evidence as to radicular manifestations. Further, the Veteran's last VA examination was conducted in September 2013. Recently, he submitted private medical records dated in February 2018 from his spine specialist, which reflect complaints of an increase in his symptoms since November 2017 (he had a cervical spine MRI in January 2018). After further updated treatment records are associated with the record an orthopedic/neurological examination, of the Veteran will be necessary. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain, for association with the claims file, updated (since February 2017) complete clinical records of all VA evaluations and treatment he Veteran has received for cervical spine disability. He should also be asked to submit for the record any additional private treatment records that may be outstanding (or provide identifying information and authorizations for VA to secure the records; if he does so, the AOJ should secure such records). 2. The AOJ should thereafter arrange for the Veteran to undergo a VA examination in orthopedics and neurology to assess the current level of severity of his service-connected cervical spine disability. The examination should include appropriate neurological diagnostic testing. The claims file must be reviewed by the examiner. The examiner is asked to describe: (a). Current range of motion in degrees of flexion, extension, rotation, and lateral flexion for the cervical spine, and any additional functional loss due to pain, painful movement, weakened movement, fatigue, or repetitive movement of the cervical segments of the spine; in undertaking range-of-motion testing (under 38 C.F.R. § 4.59), the examiner is requested to provide results of active and passive range of motion studies, and weight-bearing and nonweight-bearing testing; (b). Any objective neurological abnormalities, including any upper extremity radiculopathy (specifying the nerve or nerves involved); any impairment noted should be characterized as mild, moderate, moderately severe, or severe incomplete paralysis, or as complete paralysis, and notation should be made as to whether or not any nerve involvement is wholly sensory; (c). Any incapacitating episodes necessitating bed rest and treatment by a physician, and if so, the duration and frequency of such episodes; and (d). The impact the Veteran's service-connected cervical spine disability including any identified neurological manifestations (alone, not considering the effects of any co-existing, and nonservice-connected, disabilities) have on occupational functioning, furnishing an assessment (without consideration of his age and any nonservice-connected disabilities) as to the types of activities that remain feasible despite cervical spine manifestations. Regarding any neurological manifestations found, the examiner should also indicate whether such is a recent development or a continuation of neurological abnormalities noted in the following medical records: July 2010 VA outpatient treatment record, noting intermittent radiating pain down the left arm; March 2011 private treatment record, showing a diagnosis of, among other things, brachial neuritis or radiculitis; and February 2018 private treatment record, showing a diagnosis of, among other things, cervical radiculopathy. A complete rationale for all opinions must be provided. 3. The AOJ should then review the record and readjudicate this claim, to include consideration of whether a separate rating is warranted for any associated neurological manifestations. If the benefit sought remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the CAVC for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2017).