Citation Nr: 21016122 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 99-01 749 DATE: March 19, 2021 REMANDED Entitlement to an increased rating for cervical spine disability in excess of 10 percent prior to March 25, 2009 is remanded. Entitlement to an increased rating for cervical spine disability in excess of 20 percent from March 25, 2009 is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active duty service from June 1961 to November 1969, March 1971 to March 1974, and October 1990 to May 1991. A June 2011 Board decision denied a rating in excess of 10 percent for a cervical spine disability prior to March 25, 2009 and granted a 20 percent rating thereafter. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2012, the Court granted a Joint Motion for Remand and vacated that portion of the June 2011 decision that denied higher ratings, including a TDIU rating. In February 2013, September 2013, March 2014, and December 2019, the Board remanded the claims for additional development. 1. Entitlement to an increased rating for cervical spine disability in excess of 10 percent prior to March 25, 2009 is remanded. 2. Entitlement to an increased rating for cervical spine disability in excess of 20 percent from March 25, 2009 is remanded The claims were previously remanded in December 2019 to obtain a VA examination. The remand instructed the examiner to test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner was instructed to attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and the degree of functional loss during flare-ups. The examiner was asked to state whether, since December 23, 1996, pain, incoordination, fatigue, weakness or flare-ups of residuals of a neck strain with myofascial pain syndrome, degenerative disc disease and degenerative arthritis have caused additional functional loss (i.e., beyond what was shown on any previous clinical examination). The examiner was asked to provide an estimate, if at all possible, of the additional impairment due to pain, incoordination, fatigue, weakness or flare-up since December 23, 1996, based on the evidence of record and the Veteran’s statements. The Veteran had a VA examination in February 2020. The examination noted neck and head pain located between the shoulder blades. The examination indicated that he was unable to turn his head with massage, and upper back to shoulder pain was reported. The examination noted that he avoids motion that creates pain. Physical examination showed forward flexion of the cervical spine to 45 degrees. The examiner noted that pain contributed to functional loss and that pain noted on examination caused functional loss. The examiner indicated that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with flare-ups. The examiner explained that the Veteran denied flare-ups. The examination noted that passive range of motion was not performed, as it was not feasible in a safe manner. Non-weight-bearing and opposing joint measurements were not applicable. The examiner did not provide an estimate for additional impairment due to pain, incoordination fatigue, weakness, or flare-ups since December 1996. The examiner stated that none were noted on the examination. The examiner’s finding that there was no pain on examination is inconsistent with the statements that he was unable to turn his head with massage and avoids motion that causes pain. Although the examination noted functional loss due to pain, the examiner did not estimate the functional loss due to pain or state why an estimate of the functional loss could not be provided. The February 2020 examination does not comply with the prior remand directives. A remand is required to obtain a new examination that complies with the remand directives. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. The claim for a TDIU is intertwined with the claim for an increased rating for a cervical spine disability. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals of a neck strain with myofascial pain syndrome, degenerative disc disease and degenerative arthritis. 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. 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). 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. The examiner must state whether, since December 23, 1996, pain, incoordination, fatigue, weakness or flare-ups of residuals of a neck strain with myofascial pain syndrome, degenerative disc disease and degenerative arthritis have caused additional functional loss (i.e., beyond what was shown on any previous clinical examination). The examiner should provide an estimate, if at all possible, of the additional impairment due to pain, incoordination, fatigue, weakness or flare-ups since December 23, 1996, based on the 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). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.