Citation Nr: 21025296 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-05 795A DATE: April 27, 2021 REMANDED Entitlement to a rating in excess of 20 percent for degenerative disc disease with cervical strain is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1985 to August 1992. This matter came before the Board of Veterans Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran’s Law Judge during an August 2019 hearing. The transcript of the hearing is of record. August 2019 and August 2020 Board decisions remanded the issues on appeal for further development. A February 2021 rating decision granted service connection for lumbosacral strain with degenerative arthritis. As this constituted a complete grant of the benefit sought on appeal, the issue is not before the Board. The Board notes that the Veteran filed an April 2020 Board Appeal in the modernized appeal system regarding the issues of service connection for sleep apnea, gastrointestinal reflux disease and a migraine headache disability and requested a hearing before a Veteran’s Law Judge. Those issues will be addressed in a separate decision after the Veteran has had the opportunity for a hearing. Entitlement to a rating in excess of 20 percent for degenerative disc disease with cervical strain is remanded. The Board notes that effective February 7, 2021, the Diagnostic Codes (DC) applicable to cervical spine disabilities have changed. The Veteran’s cervical spine disability has been rated under DC 5243, which rates intervertebral disc syndrome. As pertinent to this issue, DC 5243 is now assignable only when there is disc herniation with compression and/or irritation of the nerve root. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 4.71a, Diagnostic Code 5243). The most recent VA cervical spine examination was performed in November 2019, prior to the issuance of the new regulations. The examination therefore does not contain the necessary information to determine whether the Veteran’s disability meets the new criteria under DC 5243. Remand for a new examination is therefore required to properly rate the Veteran’s cervical spine disability. The examination should be conducted in such a way that it includes findings consistent with the new requirements of Diagnostic Code 5243. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of her lumbar spine disability. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all lumbar spine pathology found to be present. Regarding intervertebral disc syndrome (IVDS), the examiner should indicate whether there is disc herniation with compression and/or irritation of the nerve root. The examiner should conduct range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold 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.