Citation Nr: 21010169 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 11-07 101 DATE: February 24, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for service-connected cervical spine strain prior to August 25, 2016 is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1998 to May 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2019 decision, the Board denied the Veteran’s claim for a disability rating in excess of 20 percent for service-connected cervical spine strain prior to August 25, 2016. The Veteran filed an appeal to the United States Court of Appeals for Veterans Claims (Court). The Court granted a September 2019 Joint Motion for Partial Remand (Joint Motion), vacated the February 2019 Board decision with respect to the issue currently on appeal, and remanded the claim for actions consistent with the Joint Motion. This case was most recently before the Board in July 2020 when it was remanded for additional development. 1. Entitlement to a disability rating in excess of 20 percent for service-connected cervical spine strain prior to August 25, 2016 is remanded. The Board finds that an additional remand is required to comply with the September 2019 Joint Motion and July 2020 Board remand. In compliance with the terms of the Joint Motion, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain a retrospective opinion regarding the severity of the Veteran’s service-connected cervical spine strain prior to August 25, 2016, considering the evidence noting daily flare-ups of pain. The AOJ obtained an opinion in August 2020 and an addendum opinion in September 2020. Unfortunately, the examiner appeared to focus on the nature of the Veteran’s cervical spine disability rather than the severity of such. Indeed, the examiner ultimately concluded that while the Veteran is credible to report his symptomatology, “pain as well as lay statements are simply not reliable as a diagnostic or prognostic indicator.” The claim is remanded to obtain a retrospective opinion regarding the severity of the Veteran’s service-connected cervical spine strain prior to August 25, 2016, to include consideration of functional impairments caused by pain during flare-ups or with repeated use over time. See 38 C.F.R. § 4.59; Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). The matter is REMANDED for the following action: 1. Forward the Veteran’s claims file to a medical professional who has not previously reviewed it to obtain a retrospective opinion regarding the severity of his service-connected cervical spine strain prior to August 25, 2016. The Veteran’s claims file, to include a copy of this remand, must be available to and reviewed by the designated professional. Following the review of the claims file, the medical professional should respond to the following: Provide a retrospective medical opinion regarding the extent of the Veteran’s functional loss (i) after repetition over time and, separately, (ii) during flare-ups for the period prior to August 25, 2016. In formulating the retrospective opinion, the medical professional should consider the December 2008 and November 2009 VA examinations noting pain with all motion of the neck and regular flare-ups of neck pain. To the medical professional’s best ability, the additional range of motion loss should be described in degrees based on review of the information from the period prior to August 25, 2016. If the Veteran was not being observed during a flare-up or after repeated use over time during the above-mentioned examinations, the medical professional should still estimate any additional functional impairment based on the evidence of record and the Veteran’s lay descriptions of repeated use or flare-up severity, frequency, duration, and/or functional loss manifestations. If it is not possible to provide an opinion without speculation, the medical professional must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page)   A rationale for all opinions expressed should be provided. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Connor, Lindsey 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.