Citation Nr: 21008262 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 12-24 254A DATE: February 12, 2021 REMANDED The claim of entitlement to service connection for a cervical spine disability is remanded. The claim of entitlement to higher evaluations for lumbar strain, rated as 10 percent disabling prior to November 14, 2020 and as 20 percent from that date, is remanded. REASONS FOR REMAND The Veteran had active service from January 1975 to June 1996. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2010 rating decision by the Agency of Original Jurisdiction (AOJ). In her September 2012 substantive appeal, the Veteran requested a hearing before the Board. However, in June 2015, she withdrew her hearing request. These issues have been remanded by the Board on two occasions, in December 2017, and in November 2019. While the appeal was most recently in remand status, the AOJ increased the evaluation of lumbar strain to 20 percent, effective November 14, 2020. The issue has been characterized to reflect the award of a higher rating from November 14, 2020. Service connection for a cervical spine disability On VA examination in September 2010, the Veteran reported that she experienced aches and pains in her neck during service, but that she did not seek treatment. She related that it was not until 2001 that she sought treatment through a private physician. In December 2017, the Board remanded this issue for a new examination. It specified that an examiner should address the Veteran’s report of experiencing neck pain while in service and provide an opinion regarding whether the current cervical spine disability was related to service. In the November 2019 remand, the Board noted that a March 2019 VA examiner had failed to address the question of direct service connection and the Veteran’s report of onset during service. On that basis, it determined that the examination was inadequate. It ordered an additional examination and specified that the examiner should provide an opinion regarding the etiology of the Veteran’s cervical spine disability and address the Veteran’s report of symptoms during service. It indicated that that the examiner should thoroughly explain the medical reasoning for his or her opinion. On VA examination in November 2020, the diagnosis was cervical radiculopathy. The examiner opined that the claimed condition was less likely than not due to or the result of the in-service injury, event, or illness. He reasoned that there were no medical records found to indicate any report of neck pain at any time during active service. The examiner failed to acknowledge the Veteran’s previous report of symptoms during service, as directed by the Board. Unfortunately, this defect renders the opinion inadequate for the purpose of deciding the Veteran’s claim. An additional opinion must be obtained regarding the question of direct service connection. Evaluation of lumbar strain The December 2017 Board remand specifically directed that range of motion of the lumbar spine be provided by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and non-bearing. It is required that VA examinations involving joints include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). In the November 2019 remand, the Board noted that a March 2019 VA examiner did not include range of motion test results for both active and passive motion, and in weight bearing and non-weight bearing. The Board acknowledged the examiner’s statement that passive range motion testing could not be performed or was not medically appropriate because the spine had no contralateral joint, but pointed out that the examiner provided no medical basis, or rationale, for this conclusion. The Board accepted that the examiner could not provide range of motion measurements for an opposite undamaged joint when the spine is involved, as there is no opposite joint. However, the Board questioned why range of motion test results could not be obtained for the lumbar spine for both active and passive motion, and in weight bearing and non-bearing. The Board concluded that an additional examination was necessary, and specified that the examiner should report range of motion test results for both active and passive motion, and in weight bearing and non-weight bearing, describing objective evidence of painful motion during each test. He indicated that an explanation and detailed rationale should be provided if any such testing was not possible. On VA examination in November 2020, the examiner indicated that passive range of motion testing could not be performed or was medically inappropriate. He did not explain why such testing could not be accomplished. Remand is necessary to address this defect. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of her cervical spine disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should provide an opinion regarding whether it is at least as likely as not that the Veteran’s cervical spine disability was incurred in, or is otherwise related to active service, to include her reports of experiencing relevant symptoms during service. The examiner must specifically address the Veteran’s report of experiencing symptoms in service, but that she did not seek treatment until after service when the symptoms became much more severe. The examiner should also render an opinion as to whether it is at least as likely as not that the Veteran’s cervical spine disability was caused OR aggravated by her service-connected low back disability. In rendering this opinion, the examiner is advised that the Veteran is competent to report her symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Schedule the Veteran for a VA examination to determine the severity of her service-connected lumbar spine disability. The claims file must be made available to the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. All pertinent symptomatology and findings referable to the Veteran’s lumbar spine disability should be reported in detail. Range of motion (ROM) testing should be recorded in active and passive motion, and in weight bearing and non-weight-bearing. The examiner should set forth the Veteran’s range of motion findings and note any pain, pain on use (to include the point during range of motion at which the Veteran reports pain), weakness, incoordination, or excess fatigability. If any such testing cannot be performed or is not medically appropriate, the examiner should clearly explain why that is so. If feasible, the examiner should portray any additional functional limitation of the spine due to these factors in terms of degrees of additional loss of motion. If not feasible, this should be stated and discussed in the examination report. If the Veteran does not have pain or any of the other factors, that fact should also be noted. (Continued on the next page)   3. Then, readjudicate the Veteran’s claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, she should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Barone, 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.