Citation Nr: 21023504 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 19-03 797 DATE: April 20, 2021 REMANDED Entitlement to a rating in excess of 30 percent for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1989 to May 2010. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in March 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). In an August 2019 decision, the Board denied the Veteran’s claim for entitlement to a rating in excess of 30 percent for his cervical spine disability. The Veteran subsequently appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (the CAVC). In a November 2020 Order, the CAVC vacated the Board’s August 2019 decision as to the issue of an increased rating for the Veteran’s cervical disability and remanded the case to the Board for readjudication. In August 2019 the Board also remanded the issue of entitlement to a total disability rating based on individual unemployability (TDIU) for further development. That issue was returned to the Board in May 2020, and entitlement to a TDIU was separately denied in an October 2020 Board decision. As such, the Board will not address the issue of entitlement to a TDIU herein. 38 C.F.R. § 20.1303. 1. Entitlement to an increased rating for a cervical spine disability. In July 2017, the Veteran underwent a VA cervical conditions examination. During the examination, the Veteran reported that he experienced flare-ups of the cervical spine which are manifested by symptoms that immobilize his head all day. However, the examiner stated that an estimate concerning range of motion loss during flare-ups could not be provided as the examination was not being conducted during a flare-up and the range of motion could not be replicated. Sharp v. Shulkin, 29 Vet. App. 26, 34–36 (2017). As such, the Board finds that a remand is warranted so that a new examination can be provided to determine the current severity of the cervical spine disability. Further, in the October 2020 Joint Motion for Partial Remand (JMPR) filed with the CAVC, the parties agreed that the Board erred in its August 2019 decision by not considering whether the Veteran’s headaches were a manifestation of his cervical spine disability. As such, on remand an opinion concerning the etiology of the Veteran’s headaches must also be obtained. See Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371 (Dec. 30, 2020). Accordingly, the matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the current severity of his cervical spine disability. The examiner is asked to provide the following: (a) Conduct testing for pain on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, an explanation must be provided. (b) State whether the examination is taking place during a flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity, and/or extent of functional impairment he experiences during a flare-up of his symptoms and/or after repeated use over time. (c) Identify and evaluate the severity of all associated neurologic abnormalities. To this end, the examiner should state whether it is at least as likely as not (a fifty percent probability or greater) that the Veteran’s reported headaches are caused or aggravated by the Veteran’s cervical spine disability. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gates, Charlene F. 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.