Citation Nr: 21066148 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 14-32 468 DATE: October 28, 2021 REMANDED Entitlement to an initial disability rating in excess of 20 percent for service-connected cervical spine strain with degenerative disc disease (DDD) (hereafter referred to as a "neck disability") is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1991 to April 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This claim has been the subject of multiple Board remands and a remand from the United States Court of Appeals for Veterans Claims (Court). While the Board regrets additional delay, remand again is required. Entitlement to an initial disability rating in excess of 20 percent for service-connected cervical spine strain with degenerative disc disease (DDD) (hereafter referred to as a "neck disability") is remanded. In the most recent July 2021 decision, the Board remanded this claim so that VA could obtain a retrospective medical opinion regarding any possible additional loss of range of motion for the Veteran's neck during a flare-up at the time of a June 2017 VA examination (in other documents, the examination is referred to as the "July 2017 examination," the month VA received the report. The actual examination took place on June 16, 2017, so the Board will refer to that report as such). Such an opinion is required pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 3435 (2017). An opinion was obtained in August 2021 and states the following: As very limited information and history was provided by the Veteran and/or obtained by the examiner, one would have to resort to speculation to approximate what the ROM would be in regard to flare-ups. 2017 exam showed 30 degrees forward flexion, 25 degrees extension, 30 degrees right lateral flexion, 30 degrees left lateral flexion, 65 degrees right lateral rotation, and 80 degrees left lateral rotation of respective range of motion. Flare up was described as "muscle cramping and not working" with no other details of flare up provided. The aforementioned range of motion is a decrease from the VA's 45, 45, 45, 45, 80 and 80 degrees of motion (although again these are only values at the exam test date 6/16/17). A flare up with muscle cramping would be expected to further decrease the values, however, again there is no indication of to what degree as the subsequent "not working" is a subjective and nonspecific statement. The examiner declined to provide a retrospective opinion on the basis of mere speculation due to limited information and history provided by the Veteran during his June 2017 VA examination. Although a speculative or inconclusive medical opinion may be permissible as long as the examiner (or the record) explains why such an opinion would require speculation, Jones v. Shinseki, 23 Vet. App. 383 (2010), this rationale is inadequate. While the examiner explained that there is no indication of to what degree the Veteran had additional functional loss due to flare ups, as his June 2017 statement is nonspecific, it appears the examiner failed to consider previous descriptions provided by the Veteran concerning periods of flare, to include his May 2017 hearing testimony in which he describes his neck as having muscle spasms and being unable to move during flare ups. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020) (holding examiner's failure to consider veteran's testimony when forming medical opinion renders that opinion inadequate); see also McKinney v. McDonald, 28 Vet. App. 15, 30 (2016). Thus, remand is warranted to afford the Veteran substantial compliance with the Board's July 2021 decision and to secure an adequate retrospective addendum opinion. See Stegall, 11 Vet. App. at 271; 38 C.F.R. § 20.904(a). The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Obtain a retrospective medical opinion for the June 2017 VA neck examination. The opinion must, at that time, using the available evidence, to include the May 2017 DRO hearing transcript, express in terms of additional range of motion lost, the functional impairment the Veteran experienced due to flare-ups for the neck. If a non-speculative opinion cannot be provided the examiner must explain why, ensuring that s/he has reviewed all procurable and assembled data and that the opinion is based on a lack of knowledge among the medical community at large, not just insufficient knowledge on the part of her/himself. (Continued on the next page) 3. Conduct any other development deemed necessary and then readjudicate the Veteran's claim. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell, Tangela 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.