Citation Nr: 21072595 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 15-42 746A DATE: December 3, 2021 REMANDED Entitlement to an initial disability rating higher than 10 percent for a neck disability prior to October 25, 2014, and a rating higher than 20 percent, thereafter, is remanded. Entitlement to an initial disability rating higher than 10 percent for a back disability prior to December 18, 2019, and a rating higher than 20 percent, thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from November 1993 to November 1997. These matters come before the Board of Veterans' Appeals (Board) from respective October 2013 and December 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. These matters were previously before this Board in February 2019 when the Veteran testified at a video conference Board hearing with a Veterans Law Judge who is no longer employed by the Board. A transcript of the hearing has been associated with the claims file and has been reviewed. In June 2020, the Veteran was notified of this fact and was given the opportunity to elect to have another hearing, which he did not do. Consequently, the Board proceeded with his appeal based on the evidence of record and denied the Veteran's appeal of these issues in its October 2020 decision. The Veteran then appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court) and the issues were the subject of a joint motion for partial remand (JMPR) and approved by the Court in July 2021. In the JMPR, the parties agreed that the Board erred when it failed to ensure satisfaction of the duty to assist prior to the adjudication of Veteran's claims and also failed to provide an adequate statement of reasons and bases for its decision. Specifically, the parties agreed that the December 2013 VA examination of the neck and addendum opinion were inadequate because the examiner failed to provide estimated range of motions during flare-ups consistent with the Court's opinion in Sharp, and therefore, a remand for a new examination and readjudication was warranted, including a reevaluation of the effective dates. Tucker v. West, 11 Vet. App. 269, 374 (1998). Consequently, these matters are being remanded for further proceedings consistent with the July 2021 Motion. 1. Entitlement to an initial disability rating higher than 10 percent for a neck disability prior to October 25, 2014, and a rating higher than 20 percent, thereafter, is remanded. 2. Entitlement to an initial disability rating higher than 10 percent for a back disability prior to December 18, 2019, and a rating higher than 20 percent, thereafter, is remanded. As determined by the parties in the JMPR referenced above, the December 2013 VA examination of the neck and addendum opinion were respectively inadequate as they did not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Board further notes that the JMPR also reflects that there are outstanding private treatment records for the Veteran's neck and back disabilities that should be obtained. Consequently, these matters must be remanded to obtain these records and a new examination of the neck and retrospective opinion prior to the Board's readjudication of the Veteran's claims on appeal. The matters are REMANDED for the following action: 1. With the Veteran's assistance, obtain all outstanding VA and private medical records associated with his back and neck disabilities, particularly from Pinnacle Family Medicine, Interventional Pain Management and Ballad Health Imaging and associate them with the Veteran's claims file. All necessary authorizations must be obtained, and the records must be forwarded directly to the Board. 2. Schedule and new examination before an appropriately qualified examiner to assess the current nature and severity of the Veteran's neck disability and for retrospective assessments for the range of motion (ROM) findings and any flareups for the Veteran's neck disability at the time of the December 2013 Neck (Cervical Spine) Conditions Disability Benefits Questionnaire examination. The claims file, including all pertinent VA and private medical reports of record and a copy of this Remand must be made available to and reviewed by the examiner prior to conducting this examination, and he/she should note that such review of the evidence was conducted. The examiner should report the extent of the Veteran's cervical spine disability in accordance with VA rating criteria and must fully describe the frequency and severity of ALL manifestations of such disability. ROM testing should be accomplished and reported for the cervical spine in active motion, passive motion, weight-bearing, and nonweight-bearing. The specific degree at which pain occurs for ALL range of motion testing must be noted for the record. The examiner should fully report functional impairment due to incoordination, weakened movement, excess fatigability, pain, or flare-ups in terms of additional degrees of limitation of motion. The examiner is advised that the Veteran is competent to report limitation during any flare-ups. All neurological manifestations should be included in the examination report. * Regarding the requested findings during a flare-up of symptoms, the VA examiner is also requested to retrospectively convey any increased symptomatology and limited motion (the latter, expressed in degrees) during flare-ups of symptoms during the December 2013 VA examination, based on the Veteran's statements and other medical evidence of record showing increased pain and/or limitation, to include within his VA and/or private treatment records. The examiner should note that as referenced in the Court's July 2021 JMPR, the Court has found that "direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion." Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). A complete rationale must be included for all proffered opinions. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without resorting to mere speculation, this should be so stated along with supporting rationale. The examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. It must be clear that the inability to provide an opinion is predicated on lack of knowledge among the "medical community at large" and not the insufficient knowledge of the specific examiner. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The examiner should ensure substantial compliance with these remand directives to prevent another Remand action by the Board. If the report is deficient in any manner, the Agency of Jurisdiction (AOJ) must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. After the above development, and any additionally indicated development, has been completed, the AOJ should readjudicate the issues on appeal. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.B. King, Associate 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.