Citation Nr: 21067621 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-54 948 DATE: November 4, 2021 REMANDED The claim for a rating in excess of 10 percent for cervical spondylosis is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1955 to September 1975; with service in the Republic of Vietnam and at Camp Lejeune. In a September 2019 decision, the Board, in part, denied a rating in excess of 10 percent for the cervical spine disability. The Veteran appealed the Board's September 2019 decision to the United States Court of Appeals for Veterans Claims ("the Court"). In November 2020, the Court issued an order that vacated the Board decision and remanded the claim for compliance with a Joint Motion for Partial Remand (JMPR). The Veteran did not wish to pursue an appeal of the Board's denial of service connection for acid reflux, to include gastroesophageal reflux disorder (GERD), and to include as due to Camp Lejeune service and/or Agent Orange exposure, and the parties respectfully requested that the Court dismiss the appeal as to that issue. See Pederson v. McDonald, 27 Vet. App. 276, 285 (2015) (en banc). Thus, the only issue remaining for appellate consideration is the one listed on adjudicated herein. In the July 2021 JMPR, the parties agreed, in part, that in denying the claim in September 2019, the Board had failed to ensure compliance with its January 2018 remand. In its January 2018 remand instructions, the Board had requested that the VA examiner "note any additional functional limitation resulting from flare-ups, including in terms of any additional degrees of limitation of motion (to the extent feasible)." VA reexamined the Veteran in May 2020. The parties to the JMPR argued that the May 2020 VA examiner did not substantially comply with the Board's January 2018 remand instructions by not providing the requested opinion, and, thus, a remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to evaluate the severity of her service-connected cervical spine disability. In providing the requested opinion, the examiner should review the joint motion for remand (CAVC Decision received 7/29/21, p. 37-38) for an explanation as to why the previous VA examination was found to be inadequate. The examiner should: A) Test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing (if applicable), for both the joint in question and the paired joint. If the examiner is unable to conduct the required testing, or concludes required testing is not necessary, he or she should clearly explain why that is so. B) Describe all of the symptomatology associated with the cervical spine disability, to include all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups should be reported. If for any reason the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. C) Passive and active range of motion testing -in both weight-bearing and nonweight-bearing -must be performed for all the disabilities being examined. The examiner is asked to note any additional functional loss, including in terms of additional degrees of limitation of motion (to the extent feasible) due to any weakened movement, excess fatigability, incoordination, or pain on use. If flare-ups are noted, the examiner is asked to note any additional functional limitation resulting from flare-ups, including in terms of any additional degrees of limitation of motion (to the extent feasible). D) The examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has any neurologic impairment as a result of her cervical spine disability. Why or why not? In so doing, the examiner should review the February 2020 VA examination report showing: "NERVE ENTRAPMENT CONDITIONS: YES BUE CTS R>L"; and the examiner's notation when relaying medical history that "[t]here is intermittent pain and numbness across the upper back area." MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.