Citation Nr: 21005459 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 09-38 546 DATE: February 1, 2021 REMANDED A rating for cervical spine degenerative joint disease in excess of 10 percent before June 29, 2010, is remanded. A rating for cervical spine degenerative joint disease in excess of 20 percent from June 29, 2010, to February 4, 2015, is remanded. A rating for cervical spine degenerative joint disease in excess of 10 percent on and after February 4, 2015, is remanded. Entitlement to a separate rating for radiculopathy of the left upper extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1994 to August 1994 and from September 1997 to January 2006. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2007 rating decision granting service connection and assigning an initial 10 percent rating for cervical spine degenerative joint disease. An October 2015 rating decision assigned a 20 percent rating effective June 29, 2010, and a 10 percent rating effective February 4, 2015. The Board remanded the matter in October 2019 to attempt to obtain outstanding treatment records and to provide the Veteran with an additional VA examination. A remand is again required because the Agency of Original Jurisdiction (AOJ) has not substantially complied with its October 2019 remand directives. The Board’s October 2019 Remand, in part, instructed the AOJ to provide the Veteran with an examination addressing the functional loss that the Veteran experienced during flare-ups and following repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner was instructed to describe such functional loss in terms of additional degrees of lost motion. If the examiner was unable to provide such an estimate in terms of degrees of lost motion, the Board instructed the examiner to explain why such an estimate could not be provided. The Veteran underwent the requested examination in January 2020, at which time the examiner acknowledged that the Veteran experienced flare-ups of his symptoms approximately once a month, with each flare-up lasting up to 2 days. Contrary to the Board’s October 2019 remand directives, the examiner did not address the functional loss that the Veteran experienced during flare-ups and following repeated use over time in terms of additional degrees of lost motion. Accordingly, the Board finds that an additional examination of the Veteran’s cervical spine is required in order to properly assess the Veteran’s loss of function during flare-ups and following repeated use over time. Additionally, when evaluating diseases and injuries of the spine, the Board is to separately evaluate any associated neurological abnormalities. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). In this case, the evidence suggests the Veteran has developed radiculopathy of the left upper extremity as a result of his cervical spine disability. The issue of the appropriate rating for this disability is inextricably intertwined with the remanded claim for an increased rating for a cervical spine disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and severity of his cervical spine disability, to include all neurological manifestations of such disability. The claims file must be provided to the examiner for review. The report of examination should include a detailed account of all the objective findings and observations relating to the Veteran’s cervical spine, to include all neurological manifestations of such disability. Range of motion testing should be conducted, to include active and passive motion and, if applicable, weight-bearing and non weight-bearing. The examiner should assess where pain begins on initial range of motion and upon repetitive testing. The examiner should describe any pain, weakened movement, excess fatigability, and incoordination. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary, he or she should clearly explain why. (Continued on the next page)   The examiner should describe whether pain significantly limits functional ability during flare-ups and after repetitive use over time. If so, the examiner must estimate range of motion in degrees during those times. If the examination does not take place during a flare-up or after repetitive use over time, the examiner must glean information regarding the severity, frequency, duration and functional loss manifestations during such times from the Veteran, medical records, and other available sources to provide the requested estimations. Efforts to obtain information must be documented. If there is no pain or limitation of function, such facts must be noted in the report. Marissa Caylor Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn, 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.