Citation Nr: 21014214 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 13-18 721A DATE: March 11, 2021 REMANDED Entitlement to a rating in excess of 20 percent for cervical degenerative disc disease, status post foraminotomy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from June 1987 to April 1999. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Board denied the Veteran’s claims. In May 2019, the parties presented a Joint Motion for Remand (JMR) before the United States Court of Appeals for Veterans Claims (Court), and the Board’s August 2018 decision was vacated. In September 2019, the Board remanded the issues for further development in compliance with the JMR. The Board remanded the issues to afford the Veteran a new VA examination to consider the nature and severity of the Veteran’s cervical degenerative disc disease, status post foraminotomy in accordance with the May 2019 JMR. In the September 2019 Board remand, the issue of entitlement to TDIU based on individual unemployability was deferred pending the development requested in the remand directives. The Veteran was afforded a VA examination in December 2019, and the case was returned to the Board for appellate review. The Board will discuss the AOJ’s compliance with its instructions below. 1. Entitlement to a rating in excess of 20 percent for cervical degenerative disc disease, status post foraminotomy is remanded. The Veteran maintains that he is entitled to a disability rating in excess of 20 percent for degenerative disc disease of the cervical spine status post foraminotomy. Further, the Veteran contends that his most recent VA examination from December 2019 is inadequate because he was not asked to discuss flare-ups and because he has pain that does not go away, which was not acknowledged by the VA examiner. During the January 2013 VA examination, the Veteran reported having flare-ups of his cervical spine condition. In subsequent VA examinations, the Veteran did not report having flare-ups. In the May 2019 JMR, the parties agreed that neither the January 2013, September 2015, October 2017 or January 2018 VA examinations adequately attempted to quantify the Veteran’s flare-ups. The Court in the May 2019 JMR noted that although a VA examination need not be conducted during a flare-up of a veteran’s condition, if a veteran has flare-ups, an examiner shall “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record – including the veteran’s lay information – or explain why [he or] she could not do so.” See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). The Court ordered that on remand, the Veteran must be provided a new VA examination that appropriately attempts to quantify any flare-ups he has, or has had, and the Board should then readjudicate the appropriate rating of his cervical spine disability, including consideration of whether previous reports of functional loss and flare-ups warrant staged ratings. Pursuant to the May 2019 JMR, the Board remanded the issues in September 2019 so that the Veteran could be afforded a new VA examination. The September 2019 remand directed the VA examiner to elicit information regarding the severity, frequency and duration of any flare-ups, as well as the degree of functional loss during flare-ups. Specifically, the Board directed the examiner to provide a retrospective opinion addressing the functional effect of flare-ups since November 15, 2009. The Veteran was then afforded another VA examination in December 2019. At the time of this examination, the Veteran did not report having flare-ups of his cervical spine condition. The VA examiner only noted that the Veteran denied having flare-ups and did not address the functional impact of previous flare-ups that the Veteran reported. Although the Board regrets the additional delay in this case, because there was not substantial compliance with the remand directives, another remand is necessary to afford the Veteran an addendum opinion. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the September 2019 remand directives specifically instructed the VA examiner to give a retrospective opinion regarding the Veteran’s flare-ups. This had not been done, and the VA examiner did not provide an explanation as to whether this could not be done without resorting to speculation. Therefore, the December 2019 VA examination is inadequate as it does not comply with the May 2019 JMR or the September 2019 Board remand. An additional opinion is necessary in order to consider the nature and severity of the Veteran’s cervical degenerative disc disease, status post foraminotomy in accordance with the May 2019 JMR and September 2019 Board remand directives. 2. Entitlement to a total disability rating based on individual unemployability is remanded. The Veteran also contends that his service-connected cervical spine disability and migraines did not prevent him from obtaining or maintaining substantially gainful employment. In the May 2019 JMR, the parties before the Court agreed that the appropriate consideration of the Veteran’s cervical spine symptoms, and the rating assigned for that condition, bear directly on his entitlement to TDIU. Therefore, this issue must be deferred pending the development requested therein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on an appellant’s claim for the second issue); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). The matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to a qualified clinician to provide a retrospective opinion. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. An examination is only required if deemed necessary by the examiner. The examiner must provide an opinion addressing the functional effect of flare-ups since November 15, 2009 (one year prior to the claim for an increased rating). The examiner must expressly address the severity, frequency and duration of any flare-up; name the precipitating and alleviating factors and estimate “per the Veteran” the extent to which flare-ups have affected functional impairment since November 15, 2010. If feasible, an estimate of any such additional functional impairment should be expressed in terms of degrees of range of motion. The examiner must provide all findings, along with a complete rationale for his or her opinion in the examination report. If the above requested opinion cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, the AOJ should review the medical opinion to ensure that the requested information was provided. If the opinion is deficient in any manner, the AOJ must implement corrective procedures. 3. Then, readjudicate the claims. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. DeVerter, 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.