Citation Nr: 21069264 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 95-23 675 DATE: November 18, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for cervical spine traumatic arthritis with intervertebral disc syndrome (IVDS) prior to April 14, 2021 Entitlement to a rating in excess of 30 percent for cervical spine traumatic arthritis with intervertebral disc syndrome (IVDS), is remanded. INTRODUCTION The Veteran served on active duty from March 1974 to March 1994. The Veteran testified at a June 1997 hearing before a former Veterans Law Judge (VLJ). After that Veterans Law Judge retired, the Veteran testified before another VLJ at a June 2015 Board hearing. That second VLJ is also no longer employed by the Board. In October 2021, the Veteran was notified that the VLJ who presided over his Board hearing is no longer at the Board and was offered a hearing before a VLJ who would decide his appeal. To date, the Veteran has not requested a third Board hearing. As such, the Board will adjudicate this appeal based on the current record. The Board remanded this matter for additional development on numerous occasions, and most recently in April 2016. REASONS FOR REMAND Although most unfortunate and frustrating, the Board finds additional development remains necessary prior to final adjudication of the issue on appeal. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the course of the April 2016 remand, the Board instructed the RO to obtain medical opinions addressing the Veteran's IVDS. In particular, the RO was asked to obtain an opinion as to whether the Veteran's IVDS was consequentially related to his cervical spine arthritis. If so, the RO was also asked to obtain retrospective opinions addressing when the disability first manifest, as well as the severity of the disability throughout the appeal period. The RO obtained a VA examination and medical opinions addressing these matters in May 2021. Though the examiner found the Veteran's IVDS was caused by his service-connected arthritis, he unfortunately did not provide complete opinions with regard to the onset or severity of the Veteran's IVDS. As noted in the April 2016 remand, this appeal has been pending since 1994. Prior to September 23, 2002, IVDS was rated under former Diagnostic Code 5293. Under that code, a 10 percent rating was warranted for mild IVDS; a 20 percent rating was warranted for moderate IVDS with recurring attacks; a 40 percent rating was warranted for severe IVDS with recurring attacks and intermittent relief; and a maximum rating of 60 percent was warranted for pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293. Additionally, the Board notes that VA General Counsel has held that the provisions of 38 C.F.R. §§ 4.40 and 4.45 are for consideration in deciding whether the Veteran is entitled to a 60 percent evaluation under former Diagnostic Code 5293, which is relevant with regard to the present appeal. See VAOPGCPREC 36-97 (1997); see also VAOPGCPREC 3-2000 (indicating that it might be necessary for the Board to apply both the old and new versions of a regulation). In VAOPGCPREC 36-97, the General Counsel of VA concluded that when a veteran has received less than the maximum evaluation based upon symptomatology that includes limitation of motion, consideration must be given to the extent of the disability under 38 C.F.R. §§ 4.40 and 4.45, even though the rating corresponds to the maximum rating under another diagnostic code pertaining to limitation of motion, i.e., former Diagnostic Code 5292. Id. In light of the foregoing, the Board finds that the examining clinician must provide guidance as to whether the Veteran met the criteria for a higher disability rating under former Diagnostic Code 5293 at any time during the appeal period. The May 2021 VA examiner was asked to state when the Veteran's IVDS first manifest. In response, he indicated the condition "is a complication from veteran's service-connected disability." This response wholly failed to address the question asked. Further, though the examiner indicated the Veteran's IVDS has manifest with "pronounced and persistent symptoms," he did not provide the thorough retrospective analysis requested, indicating whether those symptoms have been present throughout the entire appeal period. Finally, the Board also notes that to be considered adequate, a musculoskeletal examination must include an assessment of the veteran's flare-ups, as well as range of motion measurements in weight bearing, non-weight bearing, in active motion, and in passive motion. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158 (2016). However, the May 2021 examiner failed to provide non-weight bearing or weight bearing range of motion assessments. Based on the foregoing insufficiencies, the Board finds a remand is unfortunately again required. Accordingly, these matters are REMANDED for the following actions: Afford the Veteran a VA examination by an examiner to fully assess the severity of the Veteran's service-connected cervical spine disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and non-weight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flare ups, if possible, in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. Additionally, the physician is asked to provide retrospective information dating back to 1994 regarding the onset and severity of the Veteran's IVDS (e.g., was it mild; moderate with recurring attacks; severe with recurring attacks and intermittent relief; or pronounced with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief). In this respect, the examiner is asked to address the following: a) whether the Veteran's IVDS has been manifest since 1994, or whether the condition occurred at some time since that date? Additionally, the examiner is asked to review the May 2021 VA examination, wherein the examiner indicated the Veteran's IVDS was pronounced with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. Thereafter, the examiner is asked to comment on the following: b) has the severity of the Veteran's IVDS persisted since 1994, or has the condition worsened to this severity at some point since that time? All opinions expressed by the clinician must be accompanied by a complete rationale, with citation to relevant medical findings. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.