Citation Nr: 21069663 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-54 261 DATE: November 19, 2021 REMANDED Entitlement to a rating in excess of 10 percent for cervical spine osteoarthritis for the period prior to December 5, 2019, in excess of 30 percent for the period from December 5, 2019 to July 1, 2021, and in excess of 20 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1969 to May 1971 and from December 1990 to May 1991. This matter came before the Board of Veterans Appeals (Board) on appeal from May 2013 and June 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during an August 2019 hearing. The transcript of the hearing is of record. A September 2019 Board decision remanded the issues on appeal and a May 2021 Board decision denied increased ratings for cervicogenic headaches and bilateral lower extremity radiculopathy and remanded the issue of an increased rating for the cervical spine for further development. An August 2020 rating decision increased the rating for cervical spine osteoarthritis from 10 to 30 percent. An August 2021 rating decision reduced the cervical spine rating from 30 to 20 percent, effective July 2, 2021. The decision noted that the reduction did not result in the Veteran's combined evaluation. Because higher ratings for the disability are assignable during the relevant period and the Veteran is presumed to seek the maximum available benefit, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to a rating in excess of 10 percent for cervical spine osteoarthritis for the period prior to December 5, 2019, in excess of 30 percent for the period from December 5, 2019 to July 1, 2021, and in excess of 20 percent thereafter is remanded. The May 2021 Board remand found that the December 2019 VA examination had not provided the requested information regarding where pain began on range of motion testing and requested a new cervical spine examination, again specifically stating that if pain was noted on range of motion testing, the examiner should note the point pain began. A VA cervical spine examination was provided in July 2021. However, while the examiner found pain on active range of motion testing and also found that the pain caused functional loss, he did not note the point in range of motion that pain began as requested in the remand directives. As noted in the May 2021 Board remand, this does not allow the Board to properly assess the functional impairment caused by the disability. Examinations for joint disabilities generally must include range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158, 169 (2016). In conducting these measurements, the examiner should note when any incoordination, weakened movement, or excess fatigability sets in. Id. The examiner should also note whether pain on motion is present, and, if so, where in the range of motion the pain sets in and whether that pain causes functional loss. Id. Remand is therefore required to provide an accurate picture of functional loss associated with the Veteran's cervical spine disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his cervical spine disability. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all cervical spine pathology found to be present. The examiner should conduct range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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 should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. If upon completion of the above action the appeal remains 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 A. Arnold 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.