Citation Nr: 21013164 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-45 694 DATE: March 8, 2021 REMANDED Entitlement to a rating higher than 20 percent for degenerative disc disease (DDD) of the cervical spine is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1977 to February 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim for further development in November 2018 and August 2020. 1. Entitlement to a rating higher than 20 percent for DDD of the cervical spine is remanded. The Veteran seeks entitlement to an increased rating for his cervical spine disability. This appeal was remanded in November 2018 to afford the Veteran a VA examination, where the examiner “in reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins.” The Veteran was afforded VA examinations in April 2019 and October 2020, at which time it was noted he had a reduced range of motion with pain noted on flexion, extension, right and left lateral flexion, and right and left lateral rotation; however, the degree at which pain occurred was not noted in the examination report. As the RO did not substantially comply with the mandates of the Board's remand order, the claim must be remanded. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Request that the Veteran complete authorizations for VA to obtain and associate all private treatment records for the degenerative disc disease of the cervical spine, to include Baptist Medical Center in Winston-Salem, NC. If any requested records cannot be obtained, inform the Veteran of the results of the requests for records and a negative response must be associated with the claims file. 3. Afford the Veteran a VA examination to determine the current severity of his neck disability. The Veteran's claims folder, to include this Board remand, must be reviewed by the examiner in conjunction with the examination. The examiner should identify and completely describe all current symptomatology. The examiner should provide a detailed review of the Veteran's current complaints, as well as findings as to the nature, extent, and severity of symptoms caused by the Veteran's disability. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail, including ranges of motion of the spine and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees) pursuant to DeLuca. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and non-weight-bearing. If the spine cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), regarding flareups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Edwin B. Esmenda, 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.