Citation Nr: 21063284 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 12-34 710 DATE: October 13, 2021 REMANDED 1. An initial rating in excess of 10 percent from October 14, 1975 to August 13, 1991 and from April 12, 1996 to February 16, 2010, in excess of 20 percent from February 17, 2010 to December 28, 2014, and in excess of 30 percent thereafter for cervical spine degenerative joint disease (DJD) with chronic strain. 2. A total disability rating based on individual unemployability (TDIU). REASONS FOR REMAND The Veteran served on active duty from October 1971 to October 1975 and from August 1991 to April 1996, with additional service in the National Guard. The case is on appeal from a December 2009 rating decision. In September 2014, the Veteran testified at a Board hearing. In December 2017, the Board remanded the claims on appeal for additional development. Thereafter, in a February 2019 rating decision, the RO increased the Veteran's cervical spine disability rating to 20 percent from February 17, 2010 to December 28, 2014. This staged rating does not represent the maximum disability rating assignable for this disability, and the Veteran has not indicated that the current staged ratings are the maximum benefit sought. As higher ratings are available and a claimant is presumed to be seeking the maximum available rating for disabilities, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In March 2020, the Veteran's representative requested a second Board hearing. In addition, the Veterans Law Judge (VLJ) who conducted the September 2014 hearing is no longer available to participate in the adjudication of the Veteran's claim. In an April 2020 correspondence, the Veteran was offered an opportunity to have another Board hearing. The Veteran responded in May 2020 requesting a second Board hearing. However, in an April 2021 correspondence, the Veteran's representative withdrew the request for a second Board hearing. 1. An initial rating in excess of 10 percent from October 14, 1975 to August 13, 1991 and from April 12, 1996 to February 16, 2010, in excess of 20 percent from February 17, 2010 to December 28, 2014, and in excess of 30 percent thereafter for cervical spine DJD with chronic strain. 2. A TDIU. The Veteran is seeking a higher initial rating for a cervical spine disability and a TDIU. The Board finds that a remand is warranted for both claims in order to obtain a medical opinion in regard to the Veteran's ranges of motion during flareups at the time of the September 2013 and December 2014 examinations, and a retrospective opinion back to October 14, 1975. In addition, the Veteran reported being treated by a private chiropractor during the September 2014 Board hearing. However, these records are not in the file. On remand, the Veteran should be afforded another opportunity to identify outstanding relevant treatment records. Furthermore, the Veteran's representative submitted private treatment records in December 2020. As these records are illegible, on remand the Veteran should be asked to resubmit such records. Finally, when readjudicating the case, the RO should consider the staged rating with the criteria in effect at the time of the October 14, 1975 effective date, the criteria changes effective September 23, 2002, and September 26, 2003, and the more recent criteria changes effective February 7, 2021. These claims are REMANDED for the following actions: 1. Afford the Veteran an opportunity to submit or identify any outstanding relevant treatment records, to include the private treatment records submitted in December 2020 that are illegible and from Hagen Chiropractic in Portland. Obtain any identified records with the use of the Veteran's authorization as necessary. If such records are unavailable, the file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Forward the claims file to an appropriate examiner to assess the Veteran's cervical spine disability. Following a review of the claims file, the examiner should estimate the amount in degrees of ranges of motion lost due to flare-ups experienced by the Veteran at the time of the VA examinations conducted in September 2013 and December 2014. If the examiner cannot provide some or all of the requested opinions regarding flareups, he or she should explain why such opinions cannot be provided. ***Furthermore, a retrospective opinion, to the extent reasonably feasible, as to the severity of the cervical spine disability from October 14, 1975 should be provided (Continued on the next page) A rationale should be provided for opinions expressed. 3. Readjudicate the claim with consideration of the rating criteria from the October 14, 1975 effective date, the criteria changes effective September 23, 2002, and September 26, 2003, and the more recent criteria changes effective February 7, 2021. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jimerfield, David 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.