Citation Nr: 21014754 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 11-09 425 DATE: March 15, 2021 REMANDED Entitlement to a rating in excess of 30 percent for a cervical spine strain from February 18, 2016, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from January 1999 to June 1999, and from July 2000 to June 2005. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision which, inter alia, continued a 10 percent rating for the Veteran’s service-connected cervical spine strain. An interim (July 2016) rating decision increased the rating for the cervical spine disability from 10 to 20 percent, effective February 18, 2016. A June 2017 Board decision denied entitlement to increases in the staged ratings assigned for the cervical spine disability. The Veteran appealed the June 2017 Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in a May 2018 Joint Motion for Partial Remand (JMPR) by the parties. [The Veteran did not appeal the Board’s denial of a rating in excess of 10 percent for the cervical spine disability prior to February 19, 2016; accordingly, that matter is no longer before the Board.] A May 2018 CAVC Order remanded the matter of entitlement to a rating for the cervical spine disability in excess of 20 percent from February 19, 2016 for action consistent with the terms of the JMPR. A December 2018 Board decision granted an increased (to 30 percent) rating for the cervical spine disability from February 19, 2016. The Veteran again appealed that decision to the CAVC, resulting in a November 2019 JMPR. [The parties agreed that assignment of a 30 percent rating for the cervical spine strain from February 19, 2016 is a favorable finding and should not be disturbed.] A November 2019 CAVC Order remanded the matter of entitlement to a rating for the cervical spine strain excess of 30 percent from February 19, 2016 for action consistent with the terms of the JMPR. In April 2020, the Board remanded the matter for additional development. [The Board notes that the record is inconsistent as to the characterization of the effective date of the 30 percent rating assigned for the cervical spine disability. Although more recent Board decisions and the JMPRs characterize the current matter as entitlement to an increased rating from February 19, 2016, the Board notes that all codesheets since the July 2016 rating decision (which increased the rating for the cervical spine disability from 10 to 20 percent, effective February 18, 2016) have identified the “staged” increase effective February 18, 2016 (which, significantly, is the date of the VA examination identified and discussed in the JMPRs). The issue is characterized to reflect that the period which remains on appeal is from February 18, 2016 (not February 19, 2016).] Entitlement to a rating in excess of 30 percent for a cervical spine strain from February 18, 2016 The Board is aware that this matter has been remanded before (and regrets the delay inherent with another remand); but because there was not substantial compliance with previous remand instructions, another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded this matter in April 2020 for an examination to ascertain the current severity of the Veteran’s cervical spine disability. The Board specifically directed the examiner to determine whether the Veteran has an upper extremity neurological manifestation of her cervical spine disability (or was caused or aggravated by her cervical spine disability). Parties to both the May 2018 JMPR and the November 2019 JMPR agreed that the Board had failed to address whether the Veteran is entitled to a separate rating for upper extremity radiculopathy (citing to her reports of bilateral paresthesias and numbness on a February 2016 VA neck examination). On review of the newly associated medical evidence, the Board is unable to determine whether the examiners concluded that the Veteran has bilateral upper radiculopathy associated with her service-connected cervical spine disability. On November 2020 VA (fee basis) neck examination, upper extremity muscle strength, reflex, and sensory testing were normal. The examiner diagnosed mild bilateral upper extremity radiculopathy, but did not provide any rationale for such diagnosis (and did not explain the reason for such diagnosis despite normal objective test results). On December 2020 VA (fee basis) peripheral nerve examination, another examiner diagnosed bilateral upper extremity radiculopathy. However, at the bottom of the report she wrote, “There is insufficient documentation in the [V]eteran’s [claims] file that confirms a diagnosis of a bilateral upper extremity radiculopathy condition. On day of exam, symptoms were subjective.” In a separate medical opinion on the same date, the examiner checked the box to indicate that the claimed bilateral upper extremity radiculopathy is at least as likely as not due to or the result of the Veteran’s service-connected neck condition. She explained, “Literature states that Upper extremity radiculopathy can be the result of cervical strain” (emphasis added). This opinion is internally inconsistent and also lacks adequate rationale, as the examiner employed an improper (speculative) standard (“can be” versus “at least as likely as not”). Accordingly, remand for an adequate examination (and opinion) is necessary. The matter is REMANDED for the following: 1. Secure for the record updated (to the present, any not already associated with the record) complete clinical records of all VA evaluations and treatment the Veteran has received for her cervical spine and upper extremities. 2. After development sought in #1 is completed, arrange for an orthopedic examination of the Veteran (by an examiner other than the November 2020 neck or December 2020 peripheral nerve examiners) to assess the current severity of her service-connected cervical spine disability and confirm whether she has upper extremity neurological manifestations of her service-connected cervical spine disability. and if so, describe their batture and severity in detail. The record (including this remand; the February 2016 neck, November 2020 neck, and December 2020 peripheral nerves examination reports; and any evidence obtained pursuant to the development above) must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies should be completed. All pertinent findings should be described in detail. The findings must include reports of range of motion studies and the examiner should note the degree of any further limitations due to pain, weakness, incoordination, and/or fatigue, with weight-bearing, and during flare-ups. The examiner should note whether there have been incapacitating episodes of disc disease (and if so, their frequency and duration); neurological symptoms (and if so their nature and severity); and whether the spine is ankylosed. The examiner must specifically state whether the Veteran has left and/or right upper extremity neurological manifestations of her cervical spine disability. [If neurological consult is deemed necessary to address this question, such should be arranged.] If an upper extremity nerve disability is diagnosed, but is determined to not be a neurological manifestation of the cervical spine disability, the examiner should: (a) Identify the likely etiology for the diagnosed upper extremity nerve disability. Specifically, is it at least as likely as not (a 50% or greater probability) that such is related to an event, injury, or disease in service? (b) If the response to (a) is that a diagnosed disability is not related directly to the Veteran’s service, is it at least as likely as not that it was caused or aggravated by her service-connected cervical spine disability? (c) If a diagnosed upper extremity nerve disability is found to be unrelated to service, and to not have been caused or aggravated by the Veteran’s cervical spine disability, identify the etiology that is considered more likely. The examiner must include complete rationale with all opinions, citing to supporting factual data and medical principles. The opinions must be expressed in definite (vs. speculative) terms, and if a stated opinion is inconsistent with clinical findings noted (or reported in the record), the conflict must be reconciled (explained away). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.