Citation Nr: 21006736 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 11-14 033 DATE: February 5, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent prior to October 30, 2014, for status post cervical anterior fusion of C5-6 and discectomy for C6-7 disc protrusion (cervical spine disorder) is remanded. Entitlement to a rating in excess of 20 percent for cervical radiculopathy of the left upper extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1995 to January 1997, and March 1998 to July 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The procedural history of the case is detailed in the Introduction section of the April 2019 Board remand, which is herein incorporated by reference. In April 2019, the Board remanded the issues on appeal for additional development and they now return for further appellate review. The Board notes that, following the issuance of the September 2020 supplemental statement of the case, additional VA treatment records were associated with the record. As the Veteran’s representative waived Agency of Original Jurisdiction (AOJ) review of such records in a January 2021 Appellant’s Post-Remand Brief, the Board may properly consider such evidence. 38 C.F.R. § 20.1304(c). 1. Entitlement to an initial rating in excess of 10 percent prior to October 30, 2014, for a cervical spine disorder. As noted previously, this matter was remanded by the Board in April 2019 for further development. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives and, as such, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In April 2019, the Board found that a remand was necessary based on the lack of compliance with the United States Court of Appeals for Veterans Claims (Court) holdings in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), DeLuca v. Brown, 8 Vet. App. 202 (1995), and Correia v. McDonald, 28 Vet. App. 158 (2016) pursuant to a June 2018 Memorandum Decision. Accordingly, the Board directed that an examiner provide a retrospective medical opinion which assessed the nature and severity of the Veteran’s cervical spine disorder prior to October 30, 2014; and addressed the Court’s holdings in Mitchell, supra, DeLuca, supra, and Correia, supra, in regard to the findings from a May 2009 VA examination. Upon remand, the Veteran was afforded a VA examination in January 2020, with an addendum opinion in August 2020. Unfortunately, the Board finds that such examination report and addendum opinion do not substantially comply with the Board’s April 2019 remand directives to the extent that they did not include an adequate retrospective opinion regarding the findings at the May 2009 VA examination. See Stegall, supra. In this regard, in compliance with Correia, supra, the examiner restated the findings recorded in the inadequate May 2009 VA examination report and indicated that range of motion measurements were taken on weight-bearing, and nonweight-bearing was inapplicable/not medically appropriate for the cervical spine. However, the examiner further indicated that pain was present with passive range of motion testing, but he did not identify the ranges of motion where pain first began nor indicate whether such pain resulted in additional functional limitation other than range of motion lost. Therefore, a remand is necessary to obtain an addendum opinion addressing such inquiries. 2. Entitlement to a rating in excess of 20 percent for cervical radiculopathy of the left upper extremity. As noted previously, this matter was remanded by the Board in April 2019 for further development. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives and, as such, another remand is required. Stegall, supra. In April 2019, the Board found that a remand was necessary in light of the June 2018 Memorandum Decision, which determined, in relevant part, that the Board erred by not discussing and evaluating: (1) relevant testimony from an October 2014 Board hearing; or (2) a July 2015 VA examiner's comments that repetitive use caused "increased pain/stiffness/symptoms of radiculopathy." Accordingly, the Board directed that, in completing a VA examination on remand, the examiner should also provide a retrospective medical opinion that addressed any functional effects encapsulated by the July 2015 VA examiner's remarks. Upon remand, the Veteran was afforded a VA examination in January 2020. Unfortunately, the Board finds that such examination report does not substantially comply with the Board’s April 2019 remand directives to the extent that it did not include the retrospective opinion regarding the functional effects referenced in the July 2015 VA examination report. See Stegall, supra. Thus, a remand is necessary to obtain an addendum opinion addressing such inquiry. The matters are REMANDED for the following action: 1. Forward the record to an appropriate clinician other than the January/August 2020 examiner. The need for examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. In this regard, the clinician is requested to review the VA examination containing range of motion findings pertinent to the Veteran’s cervical spine disorder conducted in May 2009. With regard to such examination, the clinician should provide an opinion as to: (1) which point during range of motion testing the Veteran’s pain began; and (2) any functional loss due to pain that was present at such time, to include during repetitive use. All losses of function due to pain should be equated to additional degrees of limitation of motion. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. A rationale for any opinion offered should be provided. 2. Forward the record to an appropriate VA clinician to determine the nature and severity of the Veteran’s service-connected cervical radiculopathy of the left upper extremity. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. In this regard, the clinician is requested to review the July 2015 VA examination report. With regard, to such examination, the examiner should provide a retrospective opinion regarding any functional effects encapsulated by the July 2015 VA examiner’s remarks that repetitive use caused the Veteran to experience “increased pain/stiffness/symptoms of radiculopathy.” If the examiner cannot provide the requested opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. A rationale for any opinion offered should be provided. K. STANTON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.Breckenridge, 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.