Citation Nr: 21001902 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 09-33 645 DATE: January 12, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for cervical spine strain and/or intervertebral disc syndrome (IVDS) based upon limitation of motion or incapacitating episodes prior to September 21, 2017 (hereafter collectively referred to as a cervical spine disability), is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to November 14, 2011, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1989 to May 1991. This matter comes to the Board of Veterans’ Appeals (Board) from a July 2008 rating decision which, in pertinent part, granted service connection for a cervical spine disability and assessed a 10 percent rating, effective July 21, 2004. In March 2011, the Board remanded for further development. In November 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In March 2012, January 2015, and June 2017, the Board remanded for further development. The January 2015 Board remand found jurisdiction over the claim of a TDIU that was reasonably raised in a January 2013 statement. An October 2018 rating decision assessed an increased evaluation of 40 percent for a cervical spine disability, effective September 21, 2017. In March 2019, the Board, in pertinent part, denied a disability rating in excess of 10 percent for a cervical spine disability prior to September 21, 2017; denied a disability rating in excess of 40 percent for a cervical spine disability from September 21, 2017; and granted a TDIU from November 14, 2011. A May 2019 rating decision, in pertinent part, effectuated the Board’s grant of a TDIU. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), and in a January 2020 order, the Court granted the parties’ Joint Motion for Partial Remand (JMPR); vacated the Board’s decision as it pertained to the increased rating claim for a cervical spine disability prior to September 21, 2017, and the claim for a TDIU prior to November 14, 2011; and remanded the matter back to the Board for adjudication consistent with the JMPR. The Veteran did not wish to appeal, in pertinent part, an increased evaluation of 40 percent for a cervical spine disability from September 21, 2017. In April 2020, the Board remanded for further development. 1. Cervical spine disability In addition to performing a new VA examination, the April 2020 Board remand directed the agency of jurisdiction (AOJ) to ask the June 2016 VA examiner to comment as to whether measurements for pain with active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for other VA examinations conducted during the appeal period prior to June 2016. The examiner was further asked to describe whether pain, weakness, fatigue, and/or incoordination significantly limited functional ability during flares or repetitive use, and if so, to estimate range of motion during flares or repetitive use for the prior examinations. The Board finds that remand is required because there was not substantial compliance with the Board’s April 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the June 2016 examiner was no longer available. While the Veteran underwent a new VA examination in September 2020 for his cervical spine disability, the examiner did not provide any opinion regarding the severity of the Veteran’s cervical spine disability based on the other VA examinations conducted during the appeal period prior to June 2016. On remand, the AOJ should obtain an addendum opinion from the September 2020 VA examiner to comply with the Board’s April 2020 remand directives. 2. TDIU The January 2020 Court order stated that the Board failed to discuss evidence of employability prior to November 14, 2011, to include the Veteran’s statements in August 2008 and January 2009 that he could not work and the Veteran’s family statements in 2007 about the Veteran’s issues with employability. A TDIU is warranted when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. § 4.16(a). In order to evaluate the entire record, to include the above-mentioned lay evidence, more information is needed about the Veteran’s work history prior to November 14, 2011. The Board notes that the Veteran completed a VA Form 21-4138 in August 2008 indicating that he could not work and had lost his business. Other evidence in the claims file pertaining to work activity includes a March 2007 emergency record indicating the Veteran’s occupation as “disabled;” a July 2007 private treatment record indicating the Veteran was working full time; a May 2008 VA examination indicating the Veteran had reduced his work from 60 hours per week to 20 hours; and an October 2010 VA treatment record indicating the Veteran worked part time. On remand, the AOJ should provide the Veteran with a VA Form 21-8940 to obtain employment and salary information, to include self-employment, prior to November 14, 2011. Moreover, the Board notes that remand for further development of the Veteran’s cervical spine disability may affect the issue of a TDIU and, thus, the cervical spine claim is inextricably intertwined with the claimed TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). On remand, the September 2020 VA examiner should identify all limitations or functional impairment caused by the Veteran’s cervical spine disability, prior to November 14, 2011. The matters are REMANDED for the following actions: 1. Provide the Veteran with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, to obtain employment and salary information, to include self-employment, prior to November 14, 2011. 2. After the above development, obtain an addendum opinion from the September 2020 VA examiner. The examiner should comment as to whether measurements for pain with active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated for other VA examinations conducted during the appeal period prior to June 2016. The examiner is further requested to describe whether pain, weakness, fatigue and/or incoordination significantly limited functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use for the prior examinations. If the examiner is unable to provide a retrospective opinion as to these specific findings, he or she should clearly explain so in the report, with the examiner stating whether the need to speculate was 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 did not have the knowledge or training. (Continued on the next page.)   The examiner should also identify all limitations or functional impairment caused by the Veteran’s cervical spine disability, prior to November 14, 2011. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Craig Ormson, 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.