Citation Nr: 21014924 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-14 460 DATE: March 16, 2021 REMANDED Entitlement to a disability rating greater than 20 percent for degenerative disc disease (DDD) of the cervical spine, status post anterior cervical corpectomy and diskectomies, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded.   REASONS FOR REMAND The Veteran had active service from July 1966 to July 1986. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which continued a 20 percent disability rating for the Veteran’s cervical spine disability but also assigned a temporary total rating for this disability from November 6, 2009 to January 31, 2010 based on a period of convalescence due to this surgery pursuant to 38 C.F.R. § 4.30. The Veteran disagreed with this decision and perfected this appeal. The Veteran requested a Board hearing in his April 2014 substantive appeal but withdrew this request in May 2014 correspondence. This case was previously before the Board in January 2018 and July 2020, at which times the Board remanded the case for additional development. With regard to the TDIU issue, a March 2011 VA spine examination shows that the Veteran previously worked as a truck driver but had been unemployed for the last one to two years due to pain and medication. Also, in March 2011 and March 2012 correspondence, the Veteran wrote that he was unable to work due to pain associated with his service-connected spine disabilities (the Veteran is also service connected for a lumbar spine disability). He specifically wrote in March 2011 that he wished to be considered for TDIU. As such, the Board has taken jurisdiction of the TDIU issue as part and parcel of the cervical spine disability increased rating claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. A disability rating greater than 20 percent for DDD of the cervical spine, status post anterior cervical corpectomy and diskectomies. is denied. While the record contains contemporaneous VA examinations regarding the Veteran’s disability, the examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). At an August 2018 VA examination, the Veteran reported that his neck pain fluctuated in severity, which could be considered a “flare-up.” At an August 2020 VA examination, the examiner marked that the Veteran did not report flare-ups. It is not clear to the Board from this phrasing whether the Veteran affirmtively denied flare-ups or simply did not voice any complaints of flare-ups. See Fountain v. McDonald, 27 Vet. App. 258, 274 (2015) (A medical report stating that the “veteran did not report tinnitus” cannot be considered evidence of a denial of tinnitus during service or after service.). Moreover, the Veteran reported at the August 2020 VA examination that his neck muscles were often tired at the end of the day. This is consistent with either flare-ups or at least a functional loss after repeated use over time. The examiner did not attempt to elicit any additional functional loss suffered during such episodes. Under these circumstances, a new VA examination is needed. 2. The issue of entitlement to a TDIU is remanded. As above, a March 2011 VA spine examination shows that the Veteran previously worked as a truck driver but had been unemployed for the last one to two years due to pain and medication. Also, in March 2011 and March 2012 correspondence, the Veteran wrote that he was unable to work due to pain associated with his service-connected spine disabilities (the Veteran is also service connected for a lumbar spine disability). As such, the Board has taken jurisdiction of the TDIU issue as part and parcel of the cervical spine disability increased rating claim pursuant to Rice. In this case, the Veteran’s service-connected disabilities presently include DDD of the cervical spine (rated as 20 percent disabling), gastric/duodenal ulcer (rated as 20 percent disabling), right knee strain (rated as 10 percent disabling), radiculopathy of the right upper extremity (rated as 10 percent disabling), degenerative arthritis of the lumbar spine (rated as 10 percent disabling), scar of the neck (rated as 10 percent disabling), postoperative removal soft tissue mass left foot (rated as noncompensably disabling), and seborrheic keratosis (rated as noncompensably disabling). A combined disability evaluation of 60 percent is currently in effect. Therefore, the Veteran does not currently meet the minimum schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). While the Veteran does not currently qualify for a TDIU pursuant to 38 C.F.R. § 4.16(a), both the August 2018 and August 2020 VA examiners noted that the Veteran’s ability to perform physical work was impacted by his service-connected cervical spine disability. Initially, the Board finds that a remand is necessary to allow the Veteran the opportunity to complete and return a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). The information on that form is vital to addressing this issue, including details regarding his employment history since January 2011. Thereafter, the development and decision on the remanded increased rating issue will significantly impact a decision on the TDIU issue. Therefore, the issues are inextricably intertwined, and a remand of the TDIU issue is required. The matter is REMANDED for the following action: 1. Contact the Veteran and ask that he complete and return a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), including with details regarding his employment history since January 2011. 2. Schedule the Veteran for a VA examination to assess the severity of his cervical spine disability. (a.) The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. (b.) In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner 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 the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (c.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner 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 the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (d.) The examiner is also asked to comment on and describe the functional impairments caused by the service-connected disability as it pertains to the Veteran’s ability to function in an occupational environment. The examiner should, for instance, describe the limitations and restrictions imposed by his service-connected impairments on routine work activities for up to six hours per day, such as interacting with customers/coworkers and using technology, plus other physical activities such as sitting, standing, walking, lifting, carrying, pushing, and pulling, and mental activities such as understanding and remembering instructions, and sustained concentration. Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.