Citation Nr: 21001885 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-12 432 DATE: January 12, 2021 REMANDED Entitlement to an initial evaluation in excess of 10 percent for cervical degenerative disease is remanded. Entitlement to a total disability rating for compensation based on individual unemployability. REASONS FOR REMAND The Veteran served on active duty from July 1982 to July 1992. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a September 2019 videoconference hearing in New York, New York. A transcript of the hearing is of record. The Board denied entitlement to an initial evaluation in excess of 10 percent for cervical degenerative disease in a November 2019 decision. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court issued an order granting an August 2020 Joint Motion for Remand (JMR), remanding the claim to the Board for further action.   Although the JMR focused on whether the issue of entitlement to a total disability rating based on individual unemployability (TDIU) was raised by the record, the JMR sought to vacate the entire decision. As the Secretary agreed to vacating the entire decision, rather than narrowly tailoring a partial remand, and the Court remanded the matter “for action consistent with the terms of the joint motion”, the Board must also address whether the Veteran is entitled to a rating in excess of 10 percent. 1. Entitlement to an initial evaluation in excess of 10 percent for cervical degenerative disease is remanded. 2. Entitlement to a total disability rating for compensation based on unemployability of the individual is remanded. Upon further review of the record, remand is warranted to obtain outstanding VA treatment records and to schedule a new examination of the Veteran’s cervical spine disability. During the Veteran’s September 2019 hearing, his representative stated, “that for years his disability has deteriorated”. See hearing transcript, page 3. The Veteran’s wife also testified to observing worsening in the Veteran’s disability. See hearing transcript, pages 7-8. The Veteran was last provided an examination for this claim in January 2016. When the evidence of record “does not adequately reveal the current state of the claimant’s disability..., the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination.” Caluza v. Brown, 7 Vet. App. 498, 505-506 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In light of the time that has passed since his last VA examination, and the evidence of possible worsening, the Board finds additional examination is required to assess the current state of the Veteran’s cervical spine disability. Additionally, during the Veteran’s hearing, his representative indicated the Veteran has been receiving continuous treatment since service. See hearing transcript, page 3. The most recent medical records from VA show the Veteran is or was being treated by VA. See April 11, 2014 VA treatment record (pending medication for neck pain). Therefore, remand is warranted to obtain up to date VA treatment record. As the Board is remanding evaluation of the Veteran’s cervical degenerative disease, the inextricably intertwined issue of entitlement to a TDIU will also be remanded. On remand, the AOJ will be directed to send a form to the Veteran that is related to a TDIU claim. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a TDIU claim form. Perform necessary development of the claim. 2. Obtain the Veteran’s VA treatment records for the period since April 2014. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the severity of his service-connected cervical degenerative disease. 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, including noting historical changes in signs and symptoms (if any). If upon completion of the above action the claim remains denied, the case should be returned to the Board. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gregory T. Shannon, 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.