Citation Nr: 21071504 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 11-30 480 DATE: November 30, 2021 REMANDED Entitlement to a rating in excess of 10 percent for degenerative disc disease of the cervical spine for the period from June 8, 2005 to October 13, 2020, and in excess of 20 percent thereafter is remanded. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine for the period from June 8, 2005 to May 9, 2011, and in excess of 20 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1982 to November 1985, January 1988 to March 1996, and from March 2003 to May 2003. This matter came before the Board of Veterans Appeals (Board) on appeal from June 2010, May 2011 and March 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). January 2015, August 2020 and March 2021 Board decisions remanded the issues on appeal for further development. A November 2020 rating decision increased the rating for the Veteran's cervical spine disability from 10 to 20 percent effective October 14, 2020. Because higher ratings for this 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). The Veteran also has a pending appeal with issues of service connection for posttraumatic stress disorder, traumatic brain injury, a bilateral eye disability and a right foot disability. The Veteran requested a hearing before a Veteran's Law Judge in August 2019 and those issues will therefore be addressed in a subsequent decision after the Veteran has been afforded the opportunity for a hearing. The Board also notes that the Veteran filed a June 2020 Board Appeal regarding the issues of an increased rating for a bilateral hearing loss disability and service connection for hypertension. As that appeal was filed in the modernized appeal system, it will not be addressed in the current Legacy system appeal and will be adjudicated at a later date in a separate decision. 1. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the cervical spine for the period from June 8, 2005 to October 13, 2020, and in excess of 20 percent thereafter is remanded. 2. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the lumbar spine for the period from June 8, 2005 to May 9, 2011, and in excess of 20 percent thereafter is remanded. The March 2021 Board decision found that the October 2020 VA examinations 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. VA cervical and lumbar spine examinations were provided in April 2021. However, while the examiner found pain on active range of motion testing in both examinations 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 March 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 and lumbar spine disabilities. 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 and lumbar spine disabilities. 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 and lumbar 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 in the report. 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.