Citation Nr: 21001742 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 09-04 990 DATE: January 11, 2021 REMANDED Entitlement to service connection for cervical spine disability, to include as secondary to low back disability, is remanded. Entitlement to a rating in excess of 10 percent for low back disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1972 to January 1975 and from February 1975 to June 1992. This appeal comes to the Board of Veterans’ Appeals (Board) from November 2007 and September 2017 rating decisions. In March 2019, the Board denied a rating in excess of 10 percent for the Veteran’s low back disability, denied service connection for neck disability, and denied entitlement to TDIU, among other things. The Veteran appealed to the United States Court of Appeals for Veterans Claims (the Court). In March 2020, the Court granted the parties’ March 2020 Joint Motion for Partial Remand (JMPR) to vacate the March 2019 Board decision to the extent it denied the Veteran’s claims for service connection for neck disability, increased rating for low back disability, and TDIU, and to remand those matters for further development and readjudication. 1. Entitlement to service connection for cervical spine disability, to include as secondary to low back disability, is remanded. 2. Entitlement to a rating in excess of 10 percent for low back disability is remanded. 3. Entitlement to a TDIU is remanded. Remand of the Veteran’s claims is warranted to obtain outstanding treatment records. In his May 2020 TDIU application, the Veteran reported treatment for his service-connected disabilities from private providers, including Tennessee Valley Pain Consultants. However, it does not appear the Veteran’s Tennessee Valley Pain Consultants treatment records are in the claims file. VA treatment records show that Tennessee Valley Pain Consultants treatment records were scanned into the Veteran’s VA medical file. See November 2017 VA Treatment Record (noting records from Tennessee Valley Pain Consultants were scanned into the system). Additional potentially relevant private treatment records were also scanned into the Veteran’s VA medical file. See December 2018 VA Treatment Record (noting acupuncture treatment records scanned into the system). However, these treatment records are not in the Veteran’s claims file. As to the Veteran’s claim for service connection for cervical spine disability, as noted in the March 2020 JMPR, the June 2018 VHA medical opinion relied on the lack of documentation of neck complaints during and immediately after service in providing a negative nexus opinion without addressing the Veteran’s reports of neck pain since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Accordingly, remand is warranted to obtain additional VA medical opinion. As to the Veteran’s claim for a higher rating for low back disability, as noted in the March 2020 JMPR, the December 2016 VA lumbar spine examiner noted the Veteran’s flare-ups and pain on repetitive motion but did not opine as to the Veteran’s functional loss during flare-ups or with repeated use over time. In Sharp v. Shulkin, 26 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. As the December 2016 VA examiner did not provide an adequate explanation as to why estimates on functional loss with repetitive use over time and during flare-ups could not be made, further VA medical assessment is necessary on remand. In addition to the above, the Board notes that the Veteran’s claim for a TDIU is intertwined with his claim for a higher rating for low back disability and will also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claims, including outstanding treatment records from Tennessee Valley Pain Consultants. If the Veteran provides a signed authorization form, make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Obtain any additional VA treatment records, to include VA treatment records from August 2019 to the present. Associate with the claims file all potentially relevant documents scanned into Vista Imaging or CPRS but not associated with the Veteran’s claims file, including the November 15, 2017 Tennessee Valley Pain Consultants treatment record and the December 18, 2018 acupuncture treatment record. 3. After outstanding treatment records are obtained to the extent possible, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should opine regarding whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s cervical spine disability: (a) had an onset in service; (b) manifested to a compensable degree within one year of separation from service (i.e., June 1993); or (c) is otherwise related to service. The examiner should consider all medical and lay evidence of record, including the Veteran’s lay reports of pain since service. If the Veteran’s reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 4. After outstanding records are obtained to the extent possible, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back disability. The examiner should test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly so state and explain why. The examiner should estimate any functional loss in terms of additional degrees of limited motion experienced during flare-ups and after repetitive use over time, based on the Veteran’s description 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, or explain why they cannot. If the examiner cannot provide the above-requested estimation without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, 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. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Purcell, 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.