Citation Nr: 21001824 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 14-33 802 DATE: January 11, 2021 REMANDED Entitlement to an initial evaluation in excess of 10 percent disabling for right upper extremity radiculopathy as secondary to service-connected cervical spine disability, is remanded. Entitlement to an evaluation in excess of 10 percent disabling of intervertebral (IVDS) previously rated as degenerative disc narrowing C5-6 and C6-7 with bilateral foraminal compromise and diffuse spondylosis of the cervical spine (neck) prior to February 13, 2020 and in excess of 20 percent disabling since February 13, 2020, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1988 to December 1988, from February 2000 to October 2000, and from January 2004 to April 2005, with service in Iraq. These issues were last before the Board in October 2019 when the Board awarded an initial 10 percent disability rating for the entire period on appeal for the Veteran’s right upper extremity radiculopathy and remanded the increased rating claim for the Veteran’s neck disability. Subsequently, the Veteran appealed the award of the 10 percent disability rating for his right upper extremity radiculopathy to the Court of Appeals for Veterans Claims (Court). In an August 2020 Joint Motion for Remand (JMR) the Court ordered the Board to consider whether the Veteran’s radiculopathy should be rated under diagnostic code (DC) 8515 for impairment of the median nerve rather than DC 8517, which addresses impairment of the musculocutaneous nerve. As discussed below, the Board finds a remand is necessary for the adjudication of these issues. In October 2020, the Board issued a letter to the Veteran inviting him to request a virtual tele-hearing instead of waiting for a travel board hearing. In January 2021 it was determined that a hearing had already been conducted in this appeal. This appeal will be adjudicated based on the hearing transcript and other evidence of record. 1. Entitlement to an initial evaluation in excess of 10 percent disabling for right upper extremity radiculopathy is remanded. When there exists a remand, from either the United States Court of Appeals for Veterans Claims (Court) or the Board, a veteran is entitled to substantial compliance with those remand directives. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. at 271. see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the [JMR] or explain why the terms will not be fulfilled). Additionally, the Board is precluded from rendering its own medical opinions; see Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must rely on independent medical evidence). As stated above, the Board has been directed by the Court to address which diagnostic code is the most appropriate in rating the Veteran’s right upper extremity radiculopathy, whether it is DC 8517, impairment of the musculocutaneous nerve, or DC 8515, impairment of the median nerve. In order to make this determination, the Board requires a medical determination of the nerve roots involved. Thus, a remand for a VA examination is necessary in order to comply with the Court’s directives. 2. Entitlement to an evaluation in excess of 10 percent disabling of intervertebral (IVDS) previously rated as degenerative disc narrowing C5-6 and C6-7 with bilateral foraminal compromise and diffuse spondylosis of the cervical spine (neck) prior to February 13, 2020 and in excess of 20 percent disabling since February 13, 2020 is remanded. The Board observes that the Veteran was afforded a VA examination in compliance with the remand directives in October 2019. However, as noted by the Agency of Original Jurisdiction (AOJ) in an addendum report request, the February 2020 examination was insufficient, as it did not address whether the Veteran’s neck range of motion was affected by repeated use over time. Where the evidence of record does not reflect the current state of the Veteran’s disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Accordingly, a new VA examination is necessary to properly adjudicate the Veteran’s appeal. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity and the nerve roots involved of his service-connected right upper extremity radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria most favorable to the Veteran. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected cervical spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).] The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups of the Veteran’s service-connected neck disability. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Nelson 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.