Citation Nr: 21069012 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-24 252 DATE: November 17, 2021 REMANDED The issue of entitlement to an initial evaluation in excess of 10 percent disabling for the period prior to October 7, 2020, and in excess of 20 percent disabling for the period thereafter, for service-connected status post C5-6, C6-7 discectomy with C5-7 fusion of the cervical spine and intervertebral disc syndrome (IVDS), previously rated as cervical spine condition under D.C. 5299-5237, (cervical spine) is remanded. The issue of entitlement to an initial evaluation in excess of 20 percent disabling for the period prior to October 7, 2020, and in excess of 40 percent disabling for the period thereafter, for service-connected right (dominant) cervical radicular groups, is remanded. The issue of entitlement to an initial compensable evaluation for the period prior to October 7, 2020, and in excess of 30 percent disabling for the period thereafter, for service-connected left (non-dominant) cervical radicular groups, is remanded. The issue of entitlement to an initial compensable evaluation for the period prior to October 7, 2020, and in excess of 10 percent disabling for the period thereafter, for service-connected surgical scar, right upper neck, is remanded. The issue of entitlement to an initial compensable evaluation for service-connected surgical scar, is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1977 to April 1981, and from March 1983 to March 1999. In September 2018, the Veteran testified under oath before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. In March 2021, this matter was remanded for additional development. For the reasons outlined below, the Board finds that remand is again needed. During the appeal, in an October 2020 rating decision, the following issues were service connected: cervical radiculopathy status-post fusion, right upper extremity-dominant; radiculopathy of the upper and middle radicular group, left upper extremity non dominant; surgical scar, right upper neck; and surgical painful scar. In a November 2020 rating decision, a clear and unmistakable error was found in the evaluation of surgical (painful) scar, because objective evidence of pain was not found. Further, in a July 2021 rating decision, service connection for right and left cervical lower radicular groups was granted and included with an evaluation of all right and left cervical radicular groups, respectively, effective July 2, 2021. The addition of these service-connected disabilities and their corresponding evaluations are reflected in the issues above. The Board acknowledges that while the correct representative is listed on the March 2021 Board remand, it appears that the wrong address was used. Nevertheless, the Board is in receipt of a September 2021 appellant's post-remand brief from the Veteran's representative. Accordingly, the Board will assume that the representative has had an opportunity to review the record and submit additional evidence or argument in support of the appeal. In addition, the Board is remanding this matter again, which will provide the Veteran and his representative further opportunity to submit evidence and argument. Accordingly, the Board finds that there is no prejudice to the Veteran in proceeding with the remand. Entitlement to increased evaluations and a TDIU. The Board finds that additional development is needed prior to final adjudication of the issues on appeal. In the March 2021 remand, the Board noted that a February 2020 VA Memo indicates that a CD was received in February 2020, but that the documents contained were unscannable. The Board asked that scannable copies be obtained. In the alternative, if these records were already associated with the claim file, the Board asked that this be noted. The Board has reviewed the development following the March 2021 remand and does not see that further action was taken on this request. Therefore, the Board again asks that it be addressed upon remand. In addition, the Board finds that a new VA examination is needed in order to address the current severity of the service-connected disabilities on appeal. The Board acknowledges the July 2021 VA examination, but finds it to be inadequate for the following reasons. First, in the March 2021 remand, the Board asked that an examiner "specifically . . . provide range of motion testing (ROM) for active motion, passive motion, weight-bearing, and nonweight-bearing." (Emphasis in original). Nevertheless, the Board does not see that the July 2021 VA examination report included range of motion measurements for weight-bearing and nonweight-bearing. The Board asks that this information be provided in a new examination report. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. In addition, in the March 2021 remand, the Board directed: "For all ranges and planes of motion where pain is noted, the exact point at which pain starts must be clearly noted." (Emphasis in original). However, it is unclear to the Board that this information was provided in the July 2021 VA examination report. For example, in initial range of motion testing, on active range of motion, range of motion measurements were reported in degrees. Further, pain was noted in forward flexion, extension, right and left lateral flexion, and right and left lateral rotation. However, it is unclear where, in degrees of range of motion, the reported pain begins. The Board acknowledges that the examination report included the following direction: "If any limitation of motion is specifically attributable to pain, weakness, fatigability, incoordination, or other; please note the degree(s) in which limitation of motion is specifically attributable to the factors identified and describe." The examination report indicates that for each range of motion, the degree endpoint is the same as that reported in the active range of motion testing. However, the Board finds that this information does not adequately address the Board's very specific request to note the exact point at which pain starts in terms of degrees. Accordingly, the Board finds that a new VA examination is needed. Similarly, the Board acknowledges that pain was noted to cause functional loss in repeated use over time, as well as in flare-ups. The Board also acknowledges that estimated range of motion measurements were provided for both repeated use over time, as well as flare-ups. Upon remand, the Board seeks clarification that the degree measurements provided reflect the point at which pain starts. In addition, the Board acknowledges that the Veteran was provided with an application for TDIU following the March 2021 remand. See Subsequent development letter, April 2021. However, it does not appear that a completed form was returned. As the Board is once again remanding this matter, it will afford the Veteran an additional opportunity to supply the requested information. The remaining issues on appeal are intertwined; therefore, remand is appropriate. The matters are REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issues on appeal. The Board notes that a February 2020 VA Memo indicates that a CD was received in February 2020, but that the documents contained were unscannable. The Board asks that scannable copies be obtained. If these records have already been associated with the file, the Board asks that this be noted. Provide the Veteran with appropriate notice of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with applicable VA form(s) in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for a VA examination to evaluate the current level of severity of his cervical spine disability. The claim folder, including a copy of this remand, and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. 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 specifically to provide range of motion (ROM) testing for active motion, passive motion, weight-bearing, and nonweight-bearing. If applicable, full ROM testing must also be conducted on the opposite joint unless the opposite joint is damaged, which includes any disorder that would make the joint in question abnormal. If the opposite joint is determined to be damaged, and no ROM testing is conducted, this must be explained in the report. In addition, the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. For all ranges and planes of motion where pain is noted, the exact point at which pain starts must be clearly noted. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, as expressed in range of motion. To the extent possible, the examiner should identify any symptoms and functional impairments due to the cervical spine disability and discuss the effect of the Veteran's cervical spine disability on any occupational functioning and activities of daily living. The examiner should discuss any neurologic disabilities that are the result of the cervical spine disability. The examiner is asked to address the Veteran's contentions regarding neurological symptoms, specifically that he experiences "tingling and numbness" and has "lost a lot of strength in my hands." See Hearing transcript, September 2018. Finally, the examiner should address the impact of the Veteran's service-connected cervical spine disability on his employability. 3. If upon completion of the above action the issues are denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Foster, 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.