Citation Nr: 21003280 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 06-23 586 DATE: January 21, 2021 REMANDED The issue of entitlement to a staged initial rating in excess of 10 percent for cervical spine spondylosis prior to December 16, 2013 is remanded. The issue of entitlement to a staged initial rating in excess of 20 percent for cervical spine spondylosis from December 16, 2013 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1984 to August 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2004 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in November 2013, November 2014, April 2016, March 2017, November 2017 and September 2019. The case has been returned to the Board for review. The Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ) of the Board in July 2013. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. However, the VLJ who conducted the July 2013 Board hearing is no longer employed by the Board. In November 2020, the Veteran and his representative were sent a letter notifying them that the VLJ who presided over the July 2013 hearing is no longer employed by the Board, and offering another hearing before a different VLJ. The letter notified the Veteran that he had 30 days from the date of letter to respond and that if no response was received the Board will assume the Veteran does not want another hearing and the Board will proceed accordingly. The Veteran did not respond to the letter. As such, the Board will consider the case on the evidence of record. 1. Entitlement to a staged initial rating in excess of 10 percent for cervical spine spondylosis prior to December 16, 2013 is remanded. 2. Entitlement to a staged initial rating in excess of 20 percent for cervical spine spondylosis from December 16, 2013 is remanded. In its September 2019 remand, the Board directed the AOJ to provide the Veteran with a VA examination for an opinion as to nature and severity of his service-connected cervical spine disability to include a comment on the degree of functional loss due to pain, weakness, excess fatigability, incoordination, flare-ups, or with repeated use. The Board directed that, if it is not possible to provide a specific measurement, or an opinion regarding functional impairment during flare-ups, or repeated use, based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups, and on repeated use, based on the other evidence of record and the Veteran’s statements. The Veteran was provided a VA examination in December 2019. The VA examiner noted that the Veteran was not able to perform repetitive-use testing with at least three repetitions due to “fear of pain.” The VA examiner did not provide an estimate of the Veteran’s range of motion with repetitive use as directed by the September 2019 Board remand. The VA examiner merely stated there is no basis to offer additional losses of function on motion with repeated use over time. However, the VA examiner did not address the Veteran’s report that he is a bus driver and that due to extreme stiffness in the neck he needs to rotate his entire body. Thus, the examiner ascertained information to estimate range of motion with repeated use over time but did not provide such estimate. Therefore, the December 2019 VA examination report does not include all of the information needed to determine whether a higher rating is warranted based on additional functional loss with repeated use over time and does not substantially comply with the September 2019 remand directives. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected cervical spine disability. The record and a copy of this remand must be made available to and reviewed by the examiner. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. The examiner should report all manifestations related to the Veteran’s service-connected cervical spine. The examiner must address the following: (a.) The examiner should record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing for the cervical spine. 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 explain why that is so. In recording the ranges of motion for the Veteran’s cervical spine, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. (Continued on the next page)   (b.) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should estimate any additional functional loss during flare-ups or on repeated use, if feasible. If it is not feasible to determine, even by estimation, the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. 2. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether increased ratings for the Veteran’s cervical spine disability may be granted. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.