Citation Nr: 21006451 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 10-10 321 DATE: February 4, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for cervical disc disease is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the United States Army on active duty from May 1974 to March 1994. The issues come before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The above issues were before the Board in May 2014. The Board remanded to provide updated treatment records and for a contemporaneous VA examination. The Board denied the above claims in a May 2016 decision. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In March 2017, the Court granted a Joint Motion for Partial Remand (JMPR). The Court found that the Board failed to address potentially favorable material evidence and did not provide an adequate statement of reasons or bases for its finding that the 2014 VA examination sufficiently addressed the Veteran’s cervical spine disability. Pursuant to the JMPR, the Court vacated and remanded the matters to the Board. In August 2017, the Board remanded to provide further development, including a VA examination and opinion. Although the Board regrets further delay, another remand is necessary to provide the Veteran with every possible consideration in accordance with the Court’s Order. Further development is necessary prior to appellate review to provide the Veteran with an adequate VA medical opinion. 1. Entitlement to a disability rating in excess of 20 percent for cervical disc disease is remanded. The Veteran contends that he suffers from symptoms of his cervical spine disorder in excess of his current rating of 20 percent disabling. During the Veteran’s August 2014 VA examination, the Veteran reported that he experienced constant pain and difficulty turning his neck during flare-ups. Additionally, the VA examiner noted the Veteran’s cervical spine disability demonstrated additional limitation during flare-ups, reported as severe pain, severe weakness, and severe fatigability. However, the VA examiner did not provide any additional consideration of the Veteran’s reported functional impairment or loss of motion during periods of flare-ups. Pursuant to the August 2017 Board remand, the Veteran underwent a VA examination in November 2019. The VA examiner provided the diagnosis of cervical spine disc narrowing with radiculopathy and headaches. During the examination, the Veteran complained of sharp pains in his upper back and a constant intense pressure in his neck. The Veteran rated his pain at a level of 8 out of 10, but experienced spikes of pain rated at 10 out of 10 depending on the activity. The Veteran noted prolonged sitting aggravated his neck and he had pain while driving due to moving his neck to look behind. The VA examiner noted the Veteran’s cervical spine condition impacted his ability to work. The examiner provided that the Veteran should avoid all repetitive motion of the neck such as driving and working overhead. The VA examination stated the Veteran did not report flare-ups. The VA examiner did not provide range of motion testing or estimates of additional losses of function or motion during flare-ups. Further, upon the review of the Veteran’s claims file and relevant evidence, the VA examiner found no basis to offer additional losses of function or range of motion for the Veteran’s cervical spine with repeated use over time. When VA determines to provide an examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the November 2019 VA examination did not adequately address the Veteran’s cervical spine condition during reported flare-ups. Additionally, further development is required to address the lay and medical evidence of record that demonstrates the Veteran experienced flare-ups and periods of aggravated pain and stiffness in his neck with repeated use over time during the period on appeal. The VA examiner must obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Where applicable, the examiner is required to estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran’s own statements. Id. at 34-35. Here, the medical and lay evidence of record, to include the August 2014 VA examination and statements made by the Veteran in the November 2019 examination, reasonably indicate that the Veteran experienced additional functional impairment during flare-ups of his cervical spine disability. Finally, remand is required to provide additional development to address the November 2019 VA opinion regarding the Veteran’s cervical spine condition and functional loss with repeated use over time. The November 2019 VA examiner opined that there was no basis to estimate any additional losses due to repeated use over time. The August 2014 VA examination noted the Veteran experienced severe pain, fatigability, and weakness while driving. During the November 2019 examination, the Veteran identified experiencing neck pain while driving. The VA examiner found that the Veteran should avoid all repetitive motion of the neck, such as driving. However, the VA examiner did not provide further discussion of the Veteran’s cervical spine limitations due to repeated use over time. As the November 2019 examination did not provide any additional analysis of the Veteran’s reported impairment due do repetitive use over time, the Board is left to rely on its own lay opinion to determine the Veteran’s limitations reported during driving and other repetitive tasks, which it is forbidden from doing. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thus, remand is required to provide an examination to address the Veteran’s cervical spine condition and the functional impairment associated with repeated use over time and during reported flare-ups. 2. Entitlement to a TDIU is remanded. The Veteran contends that he cannot work due to the overall pain from his service-connected disabilities. The Board finds that the claim for a TDIU is inextricably intertwined with the remanded claim for an increased disability rating for the Veteran’s cervical spine disability, as the outcome of the claim could have a substantial effect on the merits of the claim for a TDIU. Therefore, it must also be remanded pending adjudication of the above claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to assess the severity of his cervical spine disability. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The examiner should be given access to the entire claims file and should note review of it prior to issuing an opinion. All indicated tests and studies should be performed. Also, in order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner must provide an opinion as to the Veteran’s limitation of function during flares or repetitive use over time raised in the record, as identified in the Veteran’s August 2014 and November 2019 VA examinations. 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 must provide a comprehensive report including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.V. Bona, 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.