Citation Nr: 21001719 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-26 212 DATE: January 11, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for a cervical spine disability is remanded. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right upper extremity (RUE) associated with the cervical spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from April 1988 to April 2014. These matters were previously denied by the Board in March 2019. The Veteran appealed to the Court of Appeals for Veterans Claims (Court) which, pursuant to a June 2020 Joint Motion for Partial Remand (JMPR), vacated the decision and remanded the claims for further development. 1. Entitlement to an initial rating in excess of 20 percent for a cervical spine disability is remanded. The Veteran was afforded VA examinations regarding his cervical spine disability in February 2014, March 2017, and June 2017. The Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner’s assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). As outlined in the JMPR, the examinations of record do not address all of the requirements of Correia, DeLuca, and Sharp such that a decision may be rendered on the increased rating claim. As such, a new VA examination which adequately complies with such guidance needs to be obtained before the Board may proceed to consider the claim. 2. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the RUE associated with the cervical spine disability is remanded. The Veteran’s RUE radiculopathy was awarded a 20 percent rating under 38 C.F.R. § 4.124a, DC 8511, representing mild incomplete paralysis involving the middle radicular group of the peripheral nerves. Despite the diagnosis of RUE radiculopathy in the March 2017 VA spine examination, the Veteran has not been afforded a VA peripheral nerves examination to address all manifestations of his service-connected radiculopathy. As such, the Board finds that an examination should be obtained upon remand. The JMPR found that the Board had failed to discuss the M21-1 provision that provided additional details for how to differentiate between “mild” and “moderate” radiculopathy. See M21-1, III.iv.4.N.4.c; Overton v. Wilkie, 30 Vet. App. 257, 264 (2018) (holding that the Board cannot ignore relevant Manual provisions). As such, upon remand, the M21-1 guidance should specifically be followed. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate professional to determine the extent and severity of his service-connected cervical spine disability. (a.) All indicated tests should be performed, including range of motion findings expressed in degrees and in relation to normal range of motion. (b.) The examination should include testing results on both active and passive motion, and in 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. (c.) The examiner should estimate any additional functional loss in terms of additional degrees of limited motion of the cervical spine experienced during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s descriptions as to the severity, frequency, and duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of the medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. (d.) The examiner is asked to consider the Veteran’s lay statements of record regarding the functional impact of his cervical spine disability. 2. Schedule the Veteran for a VA examination with an appropriate professional to determine the extent and severity of his service-connected RUE radiculopathy. (a.) All indicated tests should be performed. When determining the severity of any radiculopathy symptomology and overall impairment, the examiner is reminded that consistent with the guidance in M21-1, III.iv.4.N.4.c: 1. Mild incomplete paralysis in general is a disability limited to sensory deficits that ar lower graded, less persistent, or affecting a small area. A very minimal reflex or motor abnormality potentially could also be consistent with mild paralysis. 2. Moderate incomplete paralysis is the maximum evaluation reserved for the most significant cases of sensory-only impairment. Symptoms will likely be described by the claimants and medically graded as significantly disabling. In such cases a larger area in the nerve distribution may be affected by sensory symptoms. Other sign/symptom combinations that may fall into the moderate category include combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. 3. Severe incomplete paralysis should in general represent motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. (b.) The examiner is asked to consider the Veteran’s lay statements of record regarding the functional impact of his RUE radiculopathy. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, Associate Counsel 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.