Citation Nr: 21004346 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 14-20 847 DATE: January 26, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the cervical spine is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1990 to November 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board finds that remand is again warrant for the reasons noted below. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the cervical spine is remanded. The matter has previously appeared before the Board and was remanded in December 2015, March 2018 and last in December 2019. All prior remands directed the RO to obtain pertinent treatment records, notably those from VA Connecticut Healthcare System, NBHC Groton since November 2012 to present, the Advanced Back and Neck Care Center, and Falk Chiropractic Wellness and Weight Loss Center (Falk). Treatment records from the VA Connecticut Healthcare System and the Advanced Back and Neck Care Center were obtained in September 2019. However, in June 2020 a final attempt letter was provided to the Veteran which explained that it was determined that further attempts to obtain the records from Falk would be futile. In August 2020, additional treatment records from VA Connecticut Healthcare System, NBHC Groton from August 2012 to August 2020 were associated with the claims file. First, the Board notes that the record reflects that the Veteran received treatment at Falk at least in 2016. In performing its duty to assist, VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist, or the custodian does not have them. 38 C.F.R. § 3.159(c). In this case, the record does not reflect that a custodian of records for Falk advised VA that the requested records do not exist. After an August 2019 closure of the request, there is no record of another documented request made. As such, the June 2020 final attempt letter provided to the Veteran was premature as another attempt should have been made. The Board directed such in the December 2019 prior remand, stating that any negative response from Falk should be notated in the record to avoid another remand for the same development. As such, the RO is not in substantial compliance with prior Board remands to obtain outstanding treatment records. Stegall v. West, 11 Vet. App. 268, 271 (1998). Second, the Veteran underwent a VA examination in January 2020. At the outset, the Board notes that the January 2020 VA examiner was not apprised of the treatment records later associated with the claim. Further, a review of that examination reflects that the Veteran reported experiencing flare-ups but the examiner did not describe such in terms of range of motion (ROM) testing. The Board finds that in light of past examination findings such as those in the July 2012 examination revealing no report of flare-ups as compared to the February 2015 examination revealing flare-ups significantly limit functional ability, the Board is not confident that the examiner elicited enough information to report of the Veteran’s flare-ups. Musculoskeletal disabilities must comply with the language of 38 C.F.R. § 4.59 requiring examiners to test ROM in both active and passive motion, and in weight-bearing and non-weight-bearing, and report of flare-ups. The Board finds this examination is not in such compliance and is therefore inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, remand is necessary. The matter is REMANDED for the following action: 1. Obtain outstanding treatment records from Falk Chiropractic Wellness and Weight Loss Center. The RO must make as many requests as necessary to obtain the records unless it concludes that they do not exist, or further efforts would be futile. Any negative response from Falk Chiropractic should be notated in the record. All attempts to obtain these records must be documented in the claims file. The RO should follow the procedures for obtaining the records set forth by 38C.F.R. §3.159(c). If the VA attempts to obtain any outstanding records which are unavailable, the RO should make a formal finding of unavailability if all reasonable efforts to obtain such records are ultimately unsuccessful. The Veteran should be provided written documentation of such. 2. After the above development is complete, schedule the Veteran for a cervical spine examination. An in-person examination may be scheduled if the examiner deems it necessary or may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner must perform appropriate ROM testing, expressing all findings in degrees and noting the degree where painful motion, if any, is present. Further, note the presence, or absence, of weakened movement, excess fatigability, and incoordination present, to include on repetitive testing. This information must be derived from joint testing for pain on active and passive motion, and in weight-bearing and non-weight-bearing. The examination report must confirm that all such testing has been made and reflect those testing results. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups, and if so, the examiner must estimate ROM during flare-ups. If the examination does not take place during a period of flare-up, the examiner should glean information regarding the flare-ups severity, frequency, duration, and functional loss manifestations from the Veteran, medical records, and other available sources. Efforts to obtain such information must be documented. If there is no pain and/or no limitation of function, such facts must be noted in the report. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, 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.