Citation Nr: 21001352 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 13-31 106A DATE: January 7, 2021 REMANDED Entitlement to an initial rating for cervical spine disability in excess of 10 percent prior to October 30, 2017 (exclusive of the temporary total rating period), in excess of 20 percent from October 30, 2017 to September 26, 2019, and in excess of 10 percent from September 26, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from April 1986 to March 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim on appeal for further development in August 2017 and December 2018. Notably, during the pendency of this appeal, a May 2015 rating decision assigned a temporary 100 percent rating for the Veteran’s cervical spine surgery necessitating convalescence from April 14, 2014 to June 1, 2014. Thereafter, a January 2018 rating decision increased the Veteran’s cervical spine disability to 20 percent, effective October 30, 2017, and a June 2020 rating decision reduced the rating to 10 percent, effective September 26, 2019. The Veteran was last afforded a VA examination for his service-connected cervical spine disability in September 2019. The examiner did not provide an adequate opinion on additional functional loss during a flare-up. Additionally, the examiner opined that the Veteran’s limited cervical range of motion and current symptomology was likely due to chronic pain syndrome rather than his service-connected cervical spine disability. Therefore, a new VA examination is necessary, as well as an opinion on secondary service connection. See Morgan v. Wilkie, 31 Vet. App. 162 (2019). Any outstanding records should also be secured on remand. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then schedule the Veteran for an examination with an examiner other than the October 2017/September 2019 VA examiner to determine the current severity of his cervical spine disability and the etiology of his chronic pain syndrome. The claims file should be made available to and reviewed by the examiner. All findings should be reported in detail. The examiner is requested to: (a) Conduct full range of motion testing. The joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, please clearly explain why that is so. (b) Provide an opinion describing functional impairment of the Veteran’s cervical spine disability due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner should include a discussion of any specific facts that cannot be determined if unable to opine without speculation – specifically whether the inability to provide an opinion without speculation reflects “the limitation of knowledge in the medical community at large,” as opposed to a limitation of the individual examiner (lack of expertise, insufficient information, or unprocured testing). A complete rationale shall be given for all opinions and conclusions expressed. (c) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed chronic pain syndrome (see September 2019 VA examination report): (1) is proximately due to his service-connected cervical spine disability; or (2) has been aggravated (worsened beyond natural progression) by his service-connected cervical spine disability. In addressing these questions, please note there is no temporal requirement that the primary condition (cervical spine degenerative disc disease) be service-connected, or even diagnosed, at the time the secondary condition (chronic pain syndrome) is incurred. Please provide a complete rationale based on medical principles to support any conclusions reached. If unable to opine without speculation, please support your conclusion in this regard. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.