Citation Nr: 21003407 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 12-29 108 DATE: January 21, 2021 REMANDED 1. Entitlement to an initial disability rating in excess of 20 percent for a back condition with degenerative joint disease (DJD) and in excess of 40 percent from January 30, 2020 is remanded. 2. Entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease (DDD) of the cervical spine is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1996 to June 1996, from August 2000 to April 2001, from October 2001 to April 2002, from April 2002 to January 2003, from February 2003 to February 2004, and from April 2008 to July 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Board remanded the case for further development, which has not been completed. Stegall v. West, 11 Vet. App. 268, 271. The Board sincerely regrets the additional delay; however, a remand is necessary to ensure compliance with the Board’s prior remand instructions and to ensure that due process is met. Id. (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In January 2020, the Board, pursuant to a Joint Motion for Partial Remand (JMPR), remanded the Veteran’s claim for a VA examination. An examination had been completed in August 2017; however, the examiner failed to express an opinion on whether pain could significantly limit functional ability regularly, during flare-ups, and after repeated use over time in contravention of Sharp v. Shulkin, 29 Vet. App. 26, 34. In January 2020, the Veteran had two VA examinations; one for his lumbar spine and the other for his cervical spine. The examiner failed to “identify any symptoms and functional impairments due to the Veteran’s right wrist and/or hand and bilateral shin splints, and report or estimate functional loss in terms of the degree of additional loss of range of motion” as requested on remand. See January 2020 BVA Decision at 3. In the Veteran’s lumbar spine examination, the examiner noted that the Veteran “has pain down both legs [with his] left [leg] worse than [his] right [leg]” but did not report or estimate functional loss. See January 2020 Thoracolumbar Spine Examination at 1. The examiner more generally opined that the Veteran had “pain noted on exam but [that pain] does not result in [or] cause functional loss.” Id. at 2. The examiner did not provide an explanation as to how that determination was reached; instead, she later opined that pain, fatigue, and weakness significantly limited the Veteran’s functional ability with repeated use over a period of time. Id. Additionally, the examiner noted that the Veteran had a spinal surgery with the Brown Neurosurgery Institute on June 7, 2019, at Rhode Island Hospital and an EMG in 2018 in East Providence neither of which are included in the claims file. In the Veteran’s cervical spine examination, the examiner noted that the Veteran reports that “he has pain down both arms to his pinky[;] right is worse than left.” See January 2020 Neck Conditions at 2. However, the examiner did not address if or how much functional loss this pain would cause in terms of degree of additional loss of range of motion. Unfortunately, as the VA examiner failed to address the remand directives, a remand is required to obtain an addendum opinion. The matters are REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination, any relevant spine treatment records. Specifically request the necessary information to obtain all records from the Brown Neurosurgery Institute in 2019 and his East Providence EMG in 2018. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran. 3. Obtain an addendum medical opinion regarding the severity of the DDD of the Veteran’s cervical spine and DJD of the Veteran’s back. The examiner should review the Veteran’s claims file and make a notation on the examination report that the claims file was reviewed. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one (or a telehealth interview, if an in-person examination is not feasible).  The examiner must identify any symptoms and functional impairments due to the Veteran’s right wrist and/or hand and bilateral shin splints, and report or estimate functional loss in terms of the degree of additional loss of range of motion. If the examiner cannot express functional loss in this manner without resorting to speculation, he/she must explain the basis for his/her conclusion that a non-speculative opinion cannot be offered. The examiner must provide a complete rationale for any opinion given. The complete rationale for any opinion offered should be provided. If the examiner finds that he or she cannot provide an opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 4. The AOJ shall take any additional development deemed necessary and readjudicate the appeal. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Schmidt 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.