Citation Nr: 21062762 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 19-02 911 DATE: October 12, 2021 REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for bilateral upper extremity radiculopathy is remanded. Entitlement to a disability rating in excess of 10 percent for the Veteran's back disability is remanded. Entitlement to a total disability rating for individual unemployability (TDIU) prior to March 26, 2020, is remanded. REASONS FOR REMAND 1. Neck Disability At the October 2020 Board hearing the Veteran testified his neck was injured in the same in-service accident where he injured his back. He testified that his neck hurt as well but his main concern at the time was his back. He reported feeling pain in service that came and went. A VA examination is necessary to determine if there is a nexus to service. 2. Bilateral Upper Extremity Radiculopathy The Veteran also testified that his upper extremity radiculopathy was caused by his neck disability. He stated that he experienced shoulder pain flareups in service. Additionally, the pain radiated down to his fingers and he felt numbness and weakness. A VA examination is necessary to determine if the Veteran's bilateral upper extremity radiculopathy is a neurological complication of his neck disability. 3. Entitlement to a disability rating in excess of 10 percent for the Veteran's back disability is remanded. The Veteran received a VA examination for his back disability in December 2016. However, the VA examination was inadequate. The examiner failed to provide a proper opinion concerning how the Veteran's back flareups impacted his functional ability. The examiner opined that an opinion could not be provided without resorting to speculation without providing a rationale for this conclusion. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Another VA examination is necessary to adequately assess the severity of his disability. 4. Prior to March 26, 2020, entitlement to a TDIU The Veteran's TDIU claim is a part of his back increased disability rating claim. Therefore, as it is inextricably intertwined, his TDIU claim is also remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his neck disability. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must opine as to the following whether it is at least as likely as not (50 percent or greater probability) that the Veteran's neck began during active service or is related to an incident of service, including his in-service fall out of the back of a truck. The examiner should consider his Board testimony that his neck hurt at the time of his accident and that he continued to experience neck pain in service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Schedule the Veteran for an examination with an appropriate clinician for his bilateral upper extremity radiculopathy. The entire claims file and a copy of this remand must be made available to the examiner for review. The examiner must opine as to the following: a.) Whether it is at least as likely as not that the Veteran's bilateral upper extremity radiculopathy began during active service, is related to an incident of service, including his in-service fall out the back of the truck, or began within one year after discharge from active service. If the Veteran's neck disability is found to be related to service: b.) Whether it is at least as likely as not that the Veteran's bilateral upper extremity radiculopathy is a neurological complication of his neck disability. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his back disability. The entire claims file and a copy of this remand must be made available to the examiner for review. a. Full range of motion testing must be performed where possible. The joint(s) involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. b. If the Veteran is not experiencing a flareup at the time of the examination, the VA examiner should provide an opinion using other manners, such as other medical evidence and the Veteran's lay statements or explain why this is not possible. It is insufficient for the VA examiner to simply state that because the Veteran is not examined during a flareup an opinion cannot be provided without being speculative. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. The examiner must provide all findings, along with a complete rationale for any opinions provided. 4. Then, readjudicate the claims, including the inextricably intertwined TDIU claim. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.