Citation Nr: 21066779 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 15-33 365 DATE: November 2, 2021 REMANDED Entitlement to an increased initial rating in excess of 10 percent for cervical spine disability with degenerative disc disease is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1963 to November 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge (VLJ) in August 2018. A transcript of the hearing is associated with the claims file. When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, both VA and private medical records indicate the Veteran has been employed full time, and he has not asserted that his service-connected disabilities keep him from gaining and maintaining suitable employment. The Veteran repeated that assertion during testimony with the undersigned Veterans Law Judge that he is currently a justice of the peace and is not unemployable. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board finds that consideration of TDIU and SMC are not inferred by the record, and as such will not be discussed. On July 6, 2021, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a Joint Motion for Remand (JMR) that remanded the issue of a lumbar back service connection claim back to the Board for reconsideration consistent with the terms of the motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Pursuant to the Court's remand and Kutscherousky v. West, the Board issued a 90-day letter to the Veteran and his representative dated July 14, 2021 notifying them of their ability to submit additional evidence or argument in support of their appeal within 90 days. 12 Vet. App. 369 (1999) (per curiam); see 38 C.F.R. § 20.1304. The Veteran and his representative submitted no new evidence, and the representative submitted an updated appellate brief on July 16, 2021, within the prescribed 90-day period. See Clark v. O'Rourke, 30 Vet. App. 92 (2018). The substance of the Court's JMR will be discussed further below. In August 2020, the Board remanded the above issue. Based on the Court's JMR, the issue must again be remanded. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an increased initial rating in excess of 10 percent for cervical spine disability with degenerative disc disease is remanded. The Veteran is seeking an increased rating for his service-connected cervical spine disability. He received an initial evaluation of 10 percent, effective from April 3, 2008, in an October 2012 rating decision. Since that time, the Veteran has reported worsening of his cervical spine disability, noting the pain is not constant, but random, and comes especially from pressure exerted on his neck. The Veteran testified before the undersigned VLJ in August 2018 that his worsening neck pain made it difficult to sit for longer periods of time, to include while driving, when the pain would be so distracting that he had to pull off the road for safety's sake. As noted above, the Court vacated and remanded the Board's August 2020 decision with respect to the claim for an increased rating in excess of 10 percent for the Veteran's cervical spine disability. The Court, in its Joint Motion for Remand (JMR), called attention to the Board's previous denial of reopening the left shoulder service connection claim, stating that the Board failed to provide adequate reasons for its previous denial of the Veteran's attempt to reopen his left shoulder service connection claim. No. 20-8095, 2021 U.S. App. Vet. Claims (July 6, 2021) (unpublished). The Court took issue with the VA examiner's lack of expertise in orthopedics, as specified by the remand, and also with the August 2012 examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups, pursuant to Sharp v. Shulkin. 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather "it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code." Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Board notes from the Veteran's testimony during his hearing that he has had to take increasing amounts of pain-relievers for his neck pain. The Veteran received two previous VA examinations related to his cervical spine claim in August 2012 and December 2019. While the December 2019 VA examiner noted there was no additional loss of rage of motion due to flare-ups, no such measurement of loss of motion due flareups was recorded for the August 2012 VA examination. The Board finds it necessary to remand for a retrospective opinion to consider whether other medical evidence in the claims file for this period affect or alter the previous 10 percent evaluation of the Veteran's cervical spine disability. See Chotta v. Peake, 22 Vet. App. 80, 84 (2008) (If a disability rating "cannot be awarded based on the available evidence," VA must determine whether a medical opinion, including a retrospective opinion, "is necessary to make a decision on the claim." Id. at 85; (emphasis in the original); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). When the evidence of record does not reflect the current state of the claimant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Therefore, this appeal is remanded for both a new, current examination and also a retrospective opinion to address the evidence in the claims file for the entire period pertaining to the Veteran's service-connected cervical spine disability. The matters are REMANDED for the following action: 1. Obtain any pertinent outstanding VA treatment records and associate them with claims file. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. All actions to obtain the records should be documented. If the records cannot be located or do not exist, the Veteran should be notified and given opportunity to provide them. 2. After completion of the above, schedule the Veteran for a VA examination with a VA medical professional with expertise in orthopedics to determine the current nature and severity of his cervical spine disability, to include all orthopedic and neurological manifestations. The claims folder must be made available to the examiner in conjunction with the examination. Any appropriate evaluations, studies, and testing deemed necessary by the examiner, to include appropriate imaging, should be conducted. The examination should be conducted in accordance with the current disability benefits questionnaire and consistent with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Court explained that case law and VA guidelines anticipate that examiners will offer flare opinions based on estimates derived from information procured from relevant sources, including lay statements of veterans, to ascertain adequate informationi.e. frequency, duration, characteristics, severity, or functional lossregarding his flares by alternative means. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. The examiner should inquire as to periods of flare-ups, and note the frequency and duration of any flare-ups. The examiner must estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion (stated in degrees) beyond what is shown clinically, to include for VA examinations earlier in the period on appeal that did not have estimates of additional loss of motion due to flare-ups. 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. When considering the evaluation, the examiner is to carefully consider all lay statements of record, VA treatment records, and private treatment records and evaluations. The examiner should view the Veteran as a reliable historian as to his service and his reports of his activities and symptoms in and since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Attention is also invited to the mention of cervical spondylosis noted in a December 2003 x-ray and recent VA treatment notes from 2014 and 2015 that reference intervertebral disc disease (IVDS). 3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.