Citation Nr: 21063924 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 13-02 588 DATE: October 18, 2021 REMANDED Entitlement to an increased rating in excess of 20 percent prior to June 5, 2018 and in excess of 30 percent thereafter for cervical spine degenerative disc disease is remanded. Entitlement to an initial rating in excess of 10 percent prior to March 24, 2014 and in excess of 30 percent thereafter for left upper extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1962 to October 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2010 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board most recently remanded the issues on appeal for additional development in May 2016. The requested notice was provided in July 2016, VA treatment records have been associated with the file, and the requested examinations were provided in July 2018. As such, the directives have been substantially complied with and the appeal is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2016, the Board also remanded the issue of entitlement to an increased rating for right upper extremity radiculopathy for the issuance of a statement of the case. The statement of the case was provided in September 2020, and the Veteran perfected an appeal of that issue in October 2020. The issue was then separately adjudicated in an August 2021 Board decision. 38 C.F.R. § 20.1100. As it has been the subject of a separate Board decision, the Board will not address that specific issue herein. The Board also remanded the issue of entitlement to service connection for fibromyalgia. While on remand, service connection for that disability was granted in an October 2020 rating decision. As this constitutes a full grant of the benefits sought as to that issue, it is no longer part of the current appeal before the Board. Ab v. Brown, 6 Vet. App. 35 (1993). Conversely, although in the same decision the RO awarded an increased rating of 30 percent, effective June 5, 2018, for the cervical spine disability, this does not constitute a full grant of the benefits sought and therefore that issue remains on appeal. Id. The cervical spine issue has been recharacterized to reflect the effective date of the staged increased rating. Finally, the Board notes that in conjunction with the appeal of the issue and entitlement to an increased rating for right upper extremity radiculopathy the Veteran requested a hearing before a Veterans Law Judge (VLJ). However, to the extent this could be construed as a request for a hearing concerning the instant appeal as well the Veteran subsequently withdrew the request in May 2021 correspondence. 38 C.F.R. § 20.603(e). 1. Entitlement to an increased rating for cervical spine degenerative disc. The Veteran was provided with a VA cervical spine examination in July 2018. The Veteran reported that he experienced flare-ups of the cervical spine disability, but the examiner stated that an estimate concerning range of motion loss during flare-ups could not be provided because the Veteran was not being evaluated during a flare-up. While an opinion stating that an answer cannot be provided without resorting to speculation may be adequate, such an opinion must still be supported by a reasoned rationale. Jones v. Shinseki, 23 Vet. App. 382 (2010). Governing case law has already determined that the provided rationale in this case is insufficient. Sharp v. Shulkin, 29 Vet. App. 26, 3436 (2017). As such, a remand is necessary so that a new cervical spine examination may be conducted. 2. Entitlement to an increased rating for left upper extremity radiculopathy. As to the claim for an increased rating for left upper extremity radiculopathy, the Board notes that as part of any cervical spine examination the presiding examiner also identifies, and assesses the severity of, any associated neurologic abnormalities. As the cervical spine examination requested above will likely result in the development of evidence relevant to the claim for an increased rating for the left upper extremity radiculopathy, the radiculopathy claim must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). 3. Entitlement to a TDIU. Concerning entitlement to a TDIU, the Board finds that any determinations with respect to the remanded claims would materially affect a determination concerning entitlement to a TDIU. As such, it is inextricably intertwined with the claims being remanded and must therefore be remanded as well. Id. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of his cervical spine disability. The examiner is asked to provide the following: (a) Test for pain on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, an explanation must be provided. (b) State whether the examination is taking place during a flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, severity, and/or extent of functional impairment he experiences during a flare-up of his symptoms. Based on this information, the examiner should then provide an estimate concerning the average additional loss of motion during a flare-up. (c) Identify and evaluate the severity of all neurologic abnormalities associated with the cervical spine disability. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.