Citation Nr: 21062003 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-45 060 DATE: October 6, 2021 REMANDED Entitlement to an increased disability rating in excess of 10 percent for service connected C4 compression fracture (neck disability), other than the period in which the Veteran was in receipt of a temporary total rating, and to include the question of a separate compensable disability rating for left upper extremity radiculopathy, is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active service from June 1984 to April 1985. This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The instant matter was previously before the Board in January 2020, where the issue on appeal was remanded for additional development. Unfortunately, for the reasons discussed below, the remand directives were not adequately satisfied, and remand is again necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In an August 2021 brief, the Veteran's representative argues that remand is warranted, in part, due to a procedural error, specifically, that the September 2020 supplemental statement of the case (SSOC) did not include reasons and bases for its finding that an increased disability rating was not warranted. As the instant decision finds remand for a new VA cervical spine examination to be necessary, the Board notes that a new SSOC will be issued on remand following the requested development, which will correct any prior procedural error by the Agency of Original Jurisdiction (AOJ). An Increased Disability Rating for Service-Connected Neck Disability is Remanded. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. See Stegall, 11 Vet. App. at 271. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the U.S. Court of Appeals for Veterans Claims (Court) explained that "the VA Clinician's Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from a veteran, including during flare-ups." Therefore, the Court found the examiner should elicit relevant information as to a veteran's flares with a description of the additional functional loss, if any, a veteran suffers during flares, and estimate a veteran's functional loss due to flare-ups based on all the evidence of record-including the lay information or sufficiently explain why the examiner cannot do so without resort to speculation; as such, the examiner may not state the he or she cannot provide an opinion without resort to speculation solely because the Veteran is not currently experiencing a flare-up at the time of the examination. See generally Sharp, 29 Vet. App. 26. In the January 2020 Remand, the Board directed that a new VA examination be scheduled to determine the current severity of the neck disability, to include a Sharp analysis. Further, the VA examiner was to provide a retrospective opinion as to the severity of the neck disability from May 2015 to the present. The Veteran received a new VA neck examination in July 2020, and at that time the Veteran conveyed having painful flare-ups. Unfortunately, the VA examiner did not opine as to the additional loss of range of motion during a flare-up of pain. In a corresponding July 2020 opinion, the VA examiner opined that it was not possible to provide a retrospective opinion concerning the Veteran's symptoms for the past five years due to the fact that the Veteran "had a complicated course and has not had a static and stable state of his cervical spine condition from May 2015 to the present. Severity to be described in ratable terms during this five year period is unknowable." The VA examiner explained that the inability to render an opinion was based on a limitation of knowledge in the medical community at large, and not related to the limitations of the VA examiner. While the Board finds the above opinion adequate for the rating period from May 2015 until just prior to the July 2020 VA neck examination, the Board does not find that the opinion adequately explains why the VA examiner could not opine as to additional range of motion lost during a flare-up at the time of the July 2020 VA neck examination. As such, the Board finds remand for a new VA neck examination to be necessary. Further, at the time of the July 2020 VA neck examination, the VA examiner found that the Veteran had no radicular or other neurological symptoms, however, a review of the record reflects that the Veteran may have had a diagnosis of left upper extremity radiculopathy during the period prior to the December 13, 2017 neck surgery performed during the course of this appeal. As such, an opinion concerning whether the Veteran had upper extremity radiculopathy during the course of this appeal, and if so, addressing severity of the symptoms, is warranted. The matter is REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning the neck. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the neck, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record all VA treatment records pertaining to the treatment of the Veteran's neck, not already of record, for the period from September 2020. 3. Schedule a VA orthopedic examination with an examiner with appropriate expertise to assess the current severity of the service-connected neck disability. All clinical and special test findings should be clearly reported, and pertinent orthopedic and neurological findings should be reported. The VA examiner should report the extent of all back disability symptoms in accordance with VA rating criteria. On the question of the presence of a neurological disability, the VA examiner should explicitly address whether the Veteran has or had a diagnosis of left (or right) upper extremity radiculopathy at any point from January 2014 to the present, to include the period prior to the December 2017 neck surgery. In rendering this opinion, the VA examiner should explicitly address the November 2017 private treatment records discussing left upper extremity neurological symptoms and diagnosing spondylosis with associated left C5 and C6 radiculopathies. The VA examiner should also address the report from the May 2015 VA neck examination in which it was noted that the Veteran had neck pain radiating down the back of the arms. For each period in which the Veteran had a diagnosis of left (or right) upper extremity radiculopathy, the VA examiner should opine as to whether the symptoms were best described as mild, moderate, or severe in severity. Further, as part of the examination, the VA examiner should opine as to any additional functional loss that would be present during flare ups of pain in the back, to include additional degrees of limited motion caused by functional loss. If the examination is not being performed during a flare up, the VA examiner should elicit relevant information as to the flare ups or ask the veteran to describe the additional functional loss during a flare-up. Once the relevant information has been obtained from the Veteran, the VA examiner should either 1) estimate the functional loss due to flare ups in the neck, to include additional loss of range of motion, based upon all the evidence of record, including lay information, or 2) explain why he or she is unable to do so. If the VA examiner is unable to render such an opinion without resorting to mere speculation, the VA examiner should explain whether this inability is predicated on a lack of knowledge of the medical community at large or the examiner's own insufficient knowledge. (Continued on the next page) In rendering the above opinion, the VA examiner may not find that the Veteran has no functional loss during a flare up of pain in the neck. The VA examiner must quantify the functional loss, to include loss of range of motion, even if such functional loss is minimal in severity. 4. Then, readjudicate the remanded rating issue. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.