Citation Nr: 21005373 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-49 348 DATE: February 1, 2021 ORDER For the period prior to April 8, 2016, an initial rating in excess of 10 percent for a cervical spine (neck) disability is denied. For the period from April 8, 2016 to August 18, 2020, a rating in excess of 20 percent for a neck disability is denied. For the period from August 19, 2020, forward, a rating of 30 percent, but no higher, for a neck disability is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for a right ankle disability is remanded. Entitlement to an initial rating in excess of 10 percent for a left ankle disability is remanded. Entitlement to an initial rating in excess of 20 percent for a right shoulder disability is remanded. Entitlement to an initial compensable rating for a left shoulder disability for the period prior to April 8, 2016, and in excess of 20 percent thereafter, is remanded Entitlement to separate compensable ratings for neurological impairment of the bilateral upper extremities, as secondary to the service-connected neck disability, is remanded. FINDINGS OF FACT 1. For the appellate period prior to April 8, 2016, the Veteran’s neck disability was not characterized by forward flexion of 30 degrees or less, combined range of motion 170 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, ankylosis, or incapacitating episodes of intervertebral disc syndrome (IVDS). 2. From April 8, 2016 to August 18, 2020, the Veteran’s neck disability was not characterized by forward flexion of 15 degrees or less, ankylosis, or incapacitating episodes of IVDS. 3. Beginning August 19, 2020, the Veteran’s neck disability has been characterized by forward flexion of the cervical spine 15 degrees or less; ankylosis and/or incapacitating episodes of IVDS are not demonstrated. CONCLUSIONS OF LAW 1. For the appellate period prior to April 8, 2016, the criteria for an initial rating in excess of 10 percent for the neck disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003-5242 (2019). 2. From April 8, 2016 to August 18, 2020, the criteria for a rating in excess of 20 percent for the neck disability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5003-5242 (2019). 3. Beginning August 19, 2020, the criteria for a rating of 30 percent, but no higher, for the neck disability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5003-5242 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from April 1992 to April 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board, in pertinent part, denied entitlement to increased ratings for bilateral ankle disabilities, bilateral shoulder disabilities, and a neck disability. The Veteran appealed this denied claim. In December 2019, the United States Court of Appeals for Veterans Claims (Court) granted a November 2019 Joint Motion for Partial Remand (JMPR) by counsel for the Veteran and VA, vacated the Board's December 2018 decision as to the issues of entitlement to increased ratings for bilateral ankle disabilities, bilateral shoulder disabilities, and a neck disability, and remanded this matter to the Board for action consistent with the JMPR. In June 2020, the Board remanded this appeal for additional development. The Board considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Here however, the record indicates that the Veteran has been gainfully employed throughout the period on appeal. Although the Veteran reported having some limitations at work related to his neck disability symptoms, they are not shown to result in unemployment. Importantly, the Veteran does not assert the inability to maintain his current job due to a service-connected disability. The Board therefore finds that Rice is inapplicable, and a TDIU request has not been inferred. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Claims Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Moreover, the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Where a veteran is diagnosed with multiple disabilities of the same body part/system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to an initial rating in excess of 10 percent for a cervical spine disability for the appellate period prior to April 8, 2016, and in excess of 20 percent thereafter. The Veteran is in receipt of a 10 percent initial disability rating for a cervical spine disability for the appellate period prior to April 8, 2016, and a 20 percent rating thereafter, pursuant to 38 C.F.R. § 4.71a, DCs 5003-5242, applicable to degenerative arthritis. He contends that higher ratings are warranted for the entire period on appeal. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating when there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; a combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of height. A 20 percent disability rating is assigned where there is forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; a combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned where there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned where there is unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned where there is unfavorable ankylosis of the entire spine. IVDS can alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Under the IVDS Formula, a rating of 10 percent is warranted for incapacitating episodes with a total duration of at least one week but less than two weeks during the past 12 months. A rating of 20 percent is warranted for incapacitating episodes with a total duration of at least two weeks but less than four weeks during the past 12 months. A rating of 40 percent is warranted for incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted for incapacitating episodes with a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, IVDS Formula. For these purposes, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). Turning to the evidence, the Veteran was afforded a VA examination in February 2012. He reported experiencing neck pain and stiffness. Physical examination revealed: forward flexion to 45 degrees, with objective evidence of pain; extension to 40 degrees, with objective evidence of pain; right lateral flexion to 30 degrees, with objective evidence of pain; left lateral flexion to 35 degrees, with objective evidence of pain; lateral rotation to 50 degrees, bilaterally, with objective evidence of pain. He reported that flare-ups did not impact the function of his cervical spine. The Veteran was able to complete repetitive motion testing, with no change in range of motion. The Veteran had no additional limitation of range of motion after repetitive use testing. Functional loss and/or functional impairment of the cervical spine was noted as pain on movement. The Veteran had localized tenderness or pain on palpation of the cervical spine, as well as guarding or muscle spasm. The examiner noted that the Veteran did not have intervertebral disc syndrome of the cervical spine. Imaging studies of the cervical spine documented degenerative joint disease, and that the C4-5, C5-6 and C6-7 levels shows narrowing and osteophyte formation compatible with degenerative disc disease. In October 2013, the Veteran submitted a report from Dr. A.W. In her report, Dr. A.W. noted that the Veteran had been diagnosed with degenerative disc disease of the cervical spine. She noted that the Veteran first experienced neck pain in 1994 and that he had multiple flare-ups in 1996 and in 1997 until 2013. Range of motion testing was noted in the report. Private medical records dated December 2014 indicate the Veteran had full range of motion of his neck and that it was nontender to palpation. In April 2016, the Veteran underwent another VA neck examination. The examiner noted the Veteran was diagnosed with cervical spine degenerative disc disease in May 2012. The Veteran reported experiencing intermittent flare-ups of neck pain occurring weekly and ranging from three to four out of ten in intensity, without any triggers. He reported that the pain does not affect his daily activities or function. He stated that the pain can last for three to five days during flare-ups. The examiner noted that the Veteran did not report having any functional loss or functional impairment of the cervical spine. Physical examination revealed range of motion of the cervical spine as follows: forward flexion from 0 to 35 degrees; extension from 0 to 35 degrees; lateral flexion from 0 to 25 degrees, bilaterally; lateral rotation from 0 to 65 degrees, bilaterally. The examiner noted the Veteran experienced pain on examination, but that it did not result in or cause any functional loss. The examiner also noted the presence of objective evidence of localized tenderness along the cervical paraspinal area. The Veteran was able to perform repetitive use testing which did not result in additional loss of function or range of motion. The examiner noted that the Veteran did not have intervertebral disc syndrome of the cervical spine. The examiner noted that imaging studies of the cervical spine documented evidence of arthritis. July 2011 x-rays showed evidence of moderate degenerative changes at C5-6 with bilateral neural foramina narrowing, and mild degenerative changes were seen elsewhere within the cervical spine. The November 2019 JMPR determined that this examination is inadequate because the examiner did not provide an estimate of functional loss during flare-ups, and only stated that a flare-up had not occurred at the time of the examination. VA treatment records from June 2013 to May 2016 show the Veteran received treatment and prescription medication for his chronic neck pain. A May 2016 VA treatment record reflects that the Veteran reported that his neck pain felt like a 7-8/10 in severity. Private medical records show the Veteran received physical therapy in August 2016 for his neck pain. The physical therapist noted that the Veteran reported significant improvement in his overall pain since beginning physical therapy. The physical therapist noted that the Veteran's prognosis was good. A July 2016 private physical therapy report indicated that the Veteran reported a two-month history of slowly worsening central neck pain that came upon for no apparent reason. Activities that increased the pain included prolonged sitting, turning, and lying on his left side. He did generally get pain relief if he was able to change positions and move. Objectively, he demonstrated poor posture with a forward head position; had a moderate loss of extension and minimal loss of side bending motions; and had pain with cervical spine rotation. A September 2016 private treatment record indicated that the Veteran’s neck disability was well-controlled with physical therapy. In April 2020, the Veteran submitted numerous lay statements from friends, co-workers, and family members. These statements consistently reflected that the Veteran had frequent neck pain, requiring him to miss work due to pain and medical appointments, and significantly limiting his activities. In August 2020, the Veteran was afforded another VA examination. The Veteran reported experiencing neck pain that radiated down to his arms. He indicated that flare-ups cause him not to be able to turn his head. He reported having limited mobility. The flare-ups occurred daily for hours and were described as an 8-9/10 in severity. Range of motion testing was not conducted because the Veteran was “fearful of pain and is having a flare-up and states he cannot do any [range of motion] of his neck.” The VA examiner noted that pain significantly limited the Veteran’s functional ability with flare-ups. Muscle strength was 4/5 (active movement against some resistance) in the bilateral upper extremities, and there was no muscle atrophy. Reflex and sensory testing of the upper extremities were both normal. bilaterally. The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. He had no other neurologic abnormalities related to the cervical spine. The Veteran had lost 2-4 weeks of work time in the last 12 months. He worked from home when he experienced limited mobility. He had to reposition himself because of neck pain. The VA examiner estimated that during flare-ups in 2016, the Veteran had an additional loss of five degrees of range of motion in all directions (to be subtracted from the range of motion measurements indicated in the April 2016 VA examination report). Based on the evidence, both lay and medical, the Board finds that an initial rating in excess of 10 percent is not warranted for the Veteran’s neck disability for the appellate period prior to April 8, 2016. During this period, the evidence reflects that the Veteran’s neck disability was characterized by forward flexion of no worse than 45 degrees, a combined range of motion of at least 250 degrees, localized tenderness or pain on palpation, guarding or muscle spasm, and painful motion. See February 2012 VA examination report. In addition, the Veteran reported that flare-ups did not impact the function of his cervical spine. Id. While the report from Dr. A.W., submitted by the Veteran in October 2013, indicated that the Veteran had multiple flare-ups in 1996 and in 1997 until 2013, no details were given to describe the severity and functional impact of these flare-ups and no range of motion testing results were given in connection with this report. Finally, the Board notes that private medical records dated December 2014 indicate the Veteran had full range of motion of his neck and that it was nontender to palpation. For these reasons, the Board finds that the Veteran’s neck disability was consistent with the criteria for a disability rating of 10 percent, but no higher, for the appellate period prior to April 8, 2016. Furthermore, during the period prior to April 8, 2016, the Board has considered the Veteran's reported impairment of stiffness, pain, localized tenderness or pain on palpation, and guarding or muscle spasm. Even considering additional limitation of motion or function of the neck due to pain or other symptoms such as tenderness or pain (see 38 C.F.R. §§ 4.40, 4.45, 4.59), the evidence does not show that the neck disability more nearly approximates the criteria for a higher rating during the period prior to April 8, 2016. The Board finds that any functional impairment the Veteran experienced on account of his neck disability during this period is contemplated by the 10 percent rating assigned herein and is not of such severity that it could be characterized as flexion of 15 to 30 degrees, combined range of motion of 170 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, as is required for the next-higher rating. Indeed, the Veteran was able to flex his neck to 45 degrees on examination during this period, and private treatment record indicate that he had no limitation of motion of the neck. As such, a higher rating based on pain and functional loss is not warranted for the period prior to April 8, 2016. From April 8, 2016, to August 11, 2020, the Board finds that a rating in excess of 20 percent for the Veteran’s neck disability is not warranted. During this period, the evidence reflects that the Veteran’s neck disability was characterized by forward flexion of at least 30 degrees and a combined range of motion of greater than 170 degrees. See April 2016 and August 2020 VA examination reports; July 2016 private physical therapy report. There was no evidence of ankylosis. Id. Finally, the Board notes that a September 2016 private treatment record indicated that the Veteran’s neck disability was well-controlled with physical therapy. For these reasons, the Board finds that the Veteran’s neck disability was consistent with the criteria for a disability rating of 20 percent for this period in question. The Board also considered the Veteran's reported impairments of neck stiffness, pain, and additional functional impairment during flare-ups. Even considering additional limitation of motion or function of the neck due to pain or other symptoms such as tenderness or pain (see 38 C.F.R. §§ 4.40, 4.45, 4.59), the evidence does not show that the neck disability more nearly approximates the criteria for a higher rating during the period from April 8, 2016, to August 11, 2020. The Board finds that any functional impairment the Veteran experienced on account of his neck disability during this period is contemplated by the 20 percent rating already assigned and is not of such severity that it could be characterized as flexion of 15 degrees or less or ankylosis of the cervical spine, as is required for the next-higher rating. Indeed, the evidence consistently indicates that the Veteran was able to flex his neck to at least 35 degrees and ankylosis has never been demonstrated. As such, a higher rating based on pain and functional loss is not warranted for the period from April 8, 2016 to August 11, 2020. Nonetheless, beginning August 12, 2020, the Board finds that the criteria for a disability rating of 30 percent, but no higher, for the cervical spine disability are met. This finding is based on the Veteran’s inability to perform range of motion testing due to fear of pain during the August 2020 VA examination, as well as the Veteran report of having experienced daily neck flare-ups of 8-9/10 in severity that prevented him from turning his head. However, ankylosis was not reported and there is no evidence of manifestations of ankylosis such as restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Therefore, the weight evidence supports a finding that the Veteran’s cervical spine is not fixed in flexion or extension. For these reasons, the Board finds that the Veteran does not have unfavorable ankylosis of the entire cervical spine. A rating of 30 percent, but no higher, for the cervical spine disability under the General Rating Formula is warranted. Moreover, the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84- 5 (1997). Thus, no higher rating based on any functional loss is available to the Veteran beginning August 12, 2020. Additionally, a higher rating is not warranted based on incapacitating episodes of IVDS, as no incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician are demonstrated at any point during the period on appeal. See 38 C.F.R. § 4.71a, IVDS Formula, at Note (1). In addition to consideration of the orthopedic manifestations of the cervical spine disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. As will be discussed below, the Board is remanding the issue of entitlement to separate compensable ratings for bilateral upper extremity radiculopathy, as manifestations of the cervical spine disability. Aside from the question of any associated neurological impairment in the upper extremities, there is no evidence of any other potential neurological manifestations of the Veteran’s neck disability. No further discussion of separate evaluations of the neck disability as manifested neurologically is warranted at this time. Finally, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 1. Entitlement to initial ratings in excess of 10 percent for right and left ankle disabilities is remanded. As an initial matter, the Board notes that the Veteran is currently in receipt of service connection for “gout and degenerative arthritis” of the right and left ankles. See November 2020 Rating Decision Codesheet. However, in an October 2020 opinion, a VA examiner opined that the Veteran does not have diagnoses of degenerative arthritis of the right and left ankles, as such diagnosis “requires imaging confirmation and this was not found.” On remand, the Veteran’s current service-connected diagnoses of degenerative arthritis of the right and left ankles should be confirmed by an appropriate medical professional, including by imaging where warranted. In addition, the October 2020 VA examiner opined that there is no “objective medical evidence to indicate that the Veteran has gout of his […] ankles,” despite noting that the Veteran has been prescribed medication to prevent flare-ups of gout. However, the Board notes that an April 2004 pathology report indicates that the Veteran was diagnosed with gout of the right foot and a November 2004 pathology report indicates that a biopsy of the left foot was consistent with gout. Furthermore, the Board notes that the October 2020 VA examiner opined that “degenerative arthritis does not flare” and that “no objective medical record evidence that the Veteran has flare-ups of his diagnosed musculoskeletal conditions was found.” However, the Board in its June 2020 remand directives specifically instructed the VA examiner to consider the Veteran’s competent lay reports of flare-ups of his ankle symptoms, and to include estimates of any and all functional loss during flare-ups based on all information that can be feasibly derived during the appeal period, and to discuss the severity and frequency of exacerbations of bilateral ankle gout. In addition, the Board instructed the VA examiner to attempt to discount any effects of medication on the Veteran’s ankle disabilities when assessing the severity of those conditions. The Veteran has a right to compliance with the Board's remand orders. See Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). Moreover, while the Veteran was afforded VA bilateral ankle examinations in August 2020, the VA examiner did not address whether the ameliorative effects of medication were discounted or, if not, why it is not possible to discount the ameliorative effects of medication. In addition, the August 2020 VA examination report and October 2020 VA medical opinion did not include estimates of any and all functional loss during flare-ups of the right and left ankle disabilities. As such, the Board finds that the August 2020 VA examination and October 2020 VA medical opinion did not comply with the Board’s June 2020 remand directives, and remand is required to obtain the requested medical opinions. See Stegall, supra. 2. Entitlement to initial ratings in excess of 20 percent for right and left shoulder disabilities, is remanded. The Veteran is currently in receipt of service connection for “right shoulder rotator cuff tear, s/p arthroscopic repair, with degenerative arthritis” and “degenerative arthritis, left shoulder.” See November 2020 Rating Decision Codesheet. However, in an October 2020 opinion, a VA examiner opined that the Veteran does not have diagnoses of degenerative arthritis of the shoulders, as such diagnosis “requires imaging confirmation and this was not found.” On remand, the Veteran’s current service-connected diagnoses of degenerative arthritis of the right and left shoulders should be confirmed by imaging, where warranted. 3. Entitlement to separate compensable ratings for bilateral upper extremity radiculopathies, secondary to the service-connected cervical spine disability, is remanded. There is conflicting evidence of record as to whether the Veteran actually has a diagnosis of cervical radiculopathy of the bilateral upper extremities. Specifically, a September 2019 private treatment record indicated that the Veteran had been diagnosed with cervical spondylosis with radiculopathy based on an MRI report, while the August 2020 VA examination report indicated that the Veteran did not have a current diagnosis of radiculopathy related to the cervical spine disability. The Board notes that the Veteran is already in receipt of service connection for epicondylitis, tendonitis, and gout of the bilateral upper elbows. Therefore, remand is required to confirm a diagnosis of cervical radiculopathy and, clarify to the extent possible, which bilateral upper extremity symptoms are related to the cervical spine disability. The matters are REMANDED for the following action: 1. Obtain a medical opinion from a qualified clinician as to (a) whether the Veteran has current diagnoses of degenerative arthritis of the right and left shoulders. If the clinician deems it necessary, imaging should be obtained to assist in a diagnosis; and (b) in providing this opinion, the clinician should address the October 2020 VA medical opinion indicating that the Veteran does not have diagnoses of degenerative arthritis of the shoulders, as such diagnosis “requires imaging confirmation and this was not found.” 2. Provide the Veteran with another examination by an appropriate clinician to determine the current severity of his service-connected right and left ankle disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. The Veteran’s diagnoses of degenerative arthritis of the right and left ankles should be confirmed by an appropriate medical professional, including by imaging where warranted. The examiner must address the following: (a.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. (b.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and provide, to the extent possible, an estimate of the additional degrees of limited motion of the ankles during flare-ups at any time since May 1, 2012, to include as discussed on the October 2013 private disability benefit questionnaire, at the April 2016 and August 2020 VA examinations, and based on the statements from the Veteran and his friends and family. If the clinician cannot provide the above-requested opinion regarding flare-ups without resorting to speculation, he or she should state whether all procurable medical evidence has been considered, to specifically include the Veteran's description as to the severity, frequency, and duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp, 29 Vet. App. at 33. (c.) The examiner must state whether bilateral ankle gout is manifested by: i. One or two exacerbations per year; ii. Symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year; iii. Weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods; or iv. Constitutional manifestations associated with active joint involvement that are totally incapacitating. The examiner should attempt to provide all assessments of the severity of the Veteran's ankle disorders, discounting any ameliorative effects of medication. If it is not possible to discount the ameliorative effects of medication, the examiner must explain why that is the case. 3. Provide the Veteran with a VA examination to determine the current nature and severity of any neurological impairment of the upper extremities associated with the service-connected cervical spine disability. The entire claims file, including a copy of this Remand, should be made available to, and be reviewed by, the examiner. All appropriate tests, studies, and consultation should be accomplished and all clinical findings should be reported in detail. After examination of Veteran and review of the claims file, the examiner shall provide the following opinions: 1. (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran has a current neurological impairment of the upper extremities associated to the service-connected cervical spine disability? 2. (b) If so, to what extent are the Veteran’s symptoms of such neurological impairment distinguishable from the symptoms of his service-connected epicondylitis, tendonitis and gout of the right and left elbows? A thorough explanation must be provided for the opinions rendered. 4. Then, readjudicate the remanded issues on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thomas, 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.