Citation Nr: 21013134 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-05 184 DATE: March 8, 2021 REMANDED An initial rating higher than 10 percent for service-connected cervical spine degenerative disc disease (DDD) is remanded. REASONS FOR REMAND The Veteran served in the National Guard from April 2005 to March 2007. He also served on active duty from July 2008 to October 2008. This matter is on appeal from a January 2015 rating decision which granted service connection and assigned an initial noncompensable (0 percent) rating for his cervical spine DDD. In January 2017, the Veteran testified regarding it at a video hearing before the undersigned. The Board of Veterans’ Appeals (Board) remanded for additional development in July 2018. As a result of that development, the initial rating for the Veteran’s service-connected cervical spine DDD was increased to 10 percent in a June 2019 rating decision. As even higher initial ratings are possible, this matter remained on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board denied several issues, to include an initial rating higher than 10 percent for the Veteran’s service-connected cervical spine DDD, in a November 2019 decision. However, the Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JMPR) in July 2020 vacating the portion of the decision addressing that issue. This matter accordingly has been returned to the Board for readjudication consistent with the terms of the JMPR. Cervical Spine DDD Prior to readjudication, more additional development is needed. The JMPR faulted the Board’s November 2019 decision for relying upon a December 2014 VA medical examination without discussing its adequacy. Two reasons the examination may be inadequate then were set forth. First, a potential internal inconsistency was identified in how the examiner documented the Veteran’s statements about his flare-ups and functional loss. Second, the examiner concluded that to determine functional loss following repeated use over a period of time would require resorting to speculation without explaining why. Recent caselaw calling for either an estimate based on all procurable information in this situation, as well as during flare-ups, or an explanation why such an estimate cannot be provided then was cited. Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2017) (citing Jones v. Shinseki, 23 Vet. App. 382, 389-391 (2010)). The Board observes that, while not cited in the JMPR, other recent caselaw also is relevant. Involved joints specifically should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing. Correia v. McDonald, 28 Vet. App. 158 (2016) (citing 38 C.F.R. § 4.59). Not all of these tests were performed at the December 2014 examination. A new examination, in sum, is needed to remedy the aforementioned. It also is needed because there is evidence suggesting that the Veteran’s cervical spine DDD has worsened since December 2014. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Indeed, his private chiropractor Dr. L.C. referenced progression as shown by X-rays in an October 2020 letter. Records from this chiropractor are not available, despite previous opportunities afforded to him to submit them or supply sufficient information so they may be obtained on his behalf. He will be given one more opportunity to do so before the new examination, so that it is as informed as possible. Updated VA treatment records must be obtained beforehand as well. This matter is REMANDED for the following action: 1. Ask the Veteran to submit outstanding private treatment records from his chiropractor Dr. L.C. as well as any other provider who has treated his cervical spine DDD. Alternatively, ask him to supply sufficient information so these records may be obtained on his behalf. Then follow established procedure for requesting them if he does so. 2. Also follow established procedure for obtaining the Veteran’s updated VA treatment records. 3. After completing paragraphs 1 and 2, schedule the Veteran for VA medical examination to determine the current severity of his service-connected cervical spine DDD. The claims file must be reviewed by the examiner, who is advised that using the appropriate Disability Benefits Questionnaire (DBQ) would aid readjudication. The examiner specifically shall interview the Veteran in depth regarding his symptoms and their impact on his functional ability, to include during flare-ups and following repetitive use over a period of time. Range of motion, taking into account pain, must be assessed on both active and passive motion as well as in weight-bearing and nonweight-bearing. (Continued on the next page)   If assessment is not conducted during a flare-up or following repetitive use over a period of time, an estimate of the Veteran’s functional ability then must be provided using all procurable information (statements from the Veteran and other lay persons, treatment records, previous examinations). This estimate, if at all possible, should be expressed in terms of the degree of additional range of motion loss. If an estimate cannot be provided, the examiner must explain in detail why. 4. Then readjudicate this matter. If it is not granted in full, return it to the Board. Thomas H. O’Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becker 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.