Citation Nr: 21063892 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 15-17 188 DATE: October 18, 2021 REMANDED Entitlement to a rating in excess of 10 percent for cervical strain prior to April 12, 2019, is remanded. Entitlement to a rating in excess of 30 percent for cervical strain for the period from April 12, 2019, to January 24, 2020, and in excess of 20 percent, thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1980 to April 1981. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. The Veteran later testified before the Board in May 2017. A transcript of the hearing is associated with the claims file. The Board granted a 10 percent, but not higher, rating for the subject disorder for the period prior to April 12, 2019, and denied the Veteran's claim for a rating in excess of 30 percent for the period from April 12, 2019, to January 24, 2020, and in excess of 20 percent, thereafter, in a November 3, 2020 decision, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). The parties filed a Joint Motion for Remand (Joint Motion), and a July 2021 Order of the Court vacated the Board's decision that denied the Veteran's claim for an increased rating in excess of 10 percent for cervical strain prior to April 12, 2019, in excess of 30 percent for the period from April 12, 2019, to January 24, 2020, and in excess of 20 percent, thereafter, because the January 2020 VA examiner failed to comply with the December 2019 Board remand. 1. Entitlement to a rating in excess of 10 percent for cervical strain prior to April 12, 2019 2. Entitlement to a rating in excess of 30 percent for cervical strain for the period from April 12, 2019, to January 24, 2020, and in excess of 20 percent, thereafter The parties to the Joint Motion determined that the Board erred by failing to ensure that the RO substantially complied with the December 2019 Board remand instructions. Specifically, the Board directed the VA examiner to determine whether the Veteran's range of motion results from the December 2012 VA examination would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing. The Board added that, to the examiner's best ability, the additional range of motion loss should be described and estimated in degrees. If the examiner was unable to provide the requested opinion in this case, he or she was to clearly explain the basis for this decision. Effectively, these instructions directed the VA examiner to adhere to the standards indicating where pain begins on range of motion, ser forth under 38 C.F.R. § 4.40, DeLuca v. Brown, 8 Vet. App 202, 206 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). However, in both the April 2019 and January 2020 examinations, the examiner did not indicate at what point during Appellant's range of motion testing he experienced pain. The Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); see also Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial[]" compliance with Board remand is required). Therefore, these claims must be remanded for a new examination. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination so as to determine the current severity of his neck disability and for an estimate of that severity as of December 2012. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed. The neck must be tested in both active and passive motion, in weight-bearing and nonweight-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 why that is so. The examiner is asked to indicate at what point during the Veteran's range of motion testing he experiences pain. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.