Citation Nr: 21026292 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 14-20 301A DATE: April 30, 2021 REMANDED Entitlement to a rating in excess of 30 percent for herniated disc of the cervical spine status post surgical repair prior to October 2, 2018 is remanded. Entitlement to a rating in excess of 30 percent for herniated disc of the cervical spine status post surgical repair from February 1, 2019 is remanded. REASONS FOR REMAND The Veteran had active service in the United States Coast Guard from August 2002 to March 2006. In September 2019, the Board remanded the Veteran’s claim for entitlement to an increased disability rating in excess of 30 percent for herniated disc of the cervical spine status post surgical repair to obtain a VA examination. The Veteran underwent a VA examination in October 2021. In addition, in a December 2020 rating decision, the RO granted a temporary 100 percent rating from October 2, 2018 to February 1, 2019 and a 30 percent rating thereafter for the Veteran’s cervical spine disability. As the temporary 100 evaluation from October 2, 2018 to February 1, 2019 represents the full grant of benefits sought on appeal for this particular period, the Veteran’s increased rating claim for his cervical spine disability from October 2, 2018 to February 1, 2019 is no longer before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the only remaining issues before the Board are entitlement to a rating in excess of 30 percent for herniated disc of the cervical spine status post surgical repair prior to October 2, 2018 and from February 1, 2019. 1. Entitlement to a rating in excess of 30 percent for herniated disc of the cervical spine status post surgical repair prior to October 2, 2018 is remanded; entitlement to a rating in excess of 30 percent for herniated disc of the cervical spine status post surgical repair from February 1, 2019 is remanded. The Veteran contends that he is entitled to a higher rating for his service-connected cervical spine status post surgical repair. In the October 2020 VA examination, the examiner noted a diagnosis of herniated disc, cervical spine status post surgical repair as well as a 2020 diagnosis of invertebral disc syndrome (IVDS). The VA examiner did not specify the location of the Veteran’s IVDS. Initial ROM testing revealed forward flexion to 25 degrees, extension to 35 degrees, right lateral flexion to 30 degrees, left lateral flexion to 20 degrees, right lateral rotation to 35 degrees, and left lateral rotation to 30 degrees. Pain was noted on all movement and caused functional loss. There was evidence of mild tenderness or pain in the cervical spine on examination. There was also evidence of pain with weight bearing and non-weight bearing. Passive ROM was not performed as it was not medically appropriate. There was no additional loss of ROM after repetitive use testing. While the Veteran was not examined immediately after repetitive use over time, the examiner noted that pain and fatigue significantly limited functional ability with repeated use over a period of time. In terms of ROM, forward flexion was further limited to 20 degrees, extension to 30 degrees, right lateral flexion to 25 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation 25 degrees. With respect to flare ups, the Veteran was not examined during a flare up, and the examiner noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare ups. However, the examiner noted that ROM was further limited during flare ups. In terms of ROM, the examiner noted that forward flexion was further limited during flare ups to 20 degrees, extension to 30 degrees, right lateral flexion to 25 degrees, left lateral flexion to 15 degrees, right lateral rotation to 30 degrees, and left lateral rotation 25 degrees. The Veteran has guarding of the cervical spine not resulting in abnormal gait or abnormal spinal contour. The examiner further noted that the Veteran had slow movement due to fear of pain. Muscle strength testing showed active movement against some resistance on the right side but normal strength on the left side. Reflex exam results showed that his bilateral triceps and brachioradialis were hypoactive. The sensory exam on the right side was decreased, and normal on the left side. There was no ankylosis. The examiner noted that the Veteran did not have IVDS of the cervical spine. With respect to functional loss, the examiner noted that the Veteran’s cervical spine condition impairs his driving, operating machinery, and work overhead. The examiner noted that the Veteran is unable to work overhead due to the loss of motion and bilateral upper extremity radiculopathy. His ability to drive or operate machinery safely is impaired by the loss of motion of the cervical spine. He is unable to lift or carry heavy objects due to the pain in his neck and due to the bilateral upper extremity radiculopathy The Board finds the October 2020 VA examination inadequate. The examiner first noted that the Veteran had a 2020 diagnosis of IVDS. However, the examiner did not specify the location of the Veteran’s IVDS. The examiner later noted that the Veteran did not have IVDS of the cervical spine. As the examiner did not specify the location of the Veteran’s 2020 diagnosis of IVDS and not provide further explanation as to why it was later noted that the Veteran did not have IVDS of the cervical spine, another VA examination is needed to confirm whether the Veteran has IVDS of the cervical spine. In addition, the VA examiner stated that, while pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare ups, the examiner still noted that the Veteran experienced a loss of ROM due to flare ups. Therefore, another examination is also needed to clarify the severity of the Veteran’s flare ups of his cervical spine condition. While the Board regrets the additional delay, another remand is necessary to obtain another VA examination to determine the nature and severity of the Veteran’s cervical spine condition. The matters are REMANDED for the following action: 1. Give the Veteran an opportunity to identify any outstanding pertinent treatment records, VA or private, that have not already been associated with the claims file. The AOJ should then attempt to obtain those records if the appellant provides the appropriate authorization 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected cervical spine disability. 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. 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). In so doing, the examiner must 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). The examiner is specifically requested to address whether the Veteran has a diagnosis of invertebral disc syndrome (IVDS) of the cervical spine. If a diagnosis of IVDS of the cervical spine is not found, the examiner is requested to provide an explanation as to why a 2020 diagnosis of IVDS was noted in the Veteran’s October 2020 VA examination of the cervical spine. 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, re-adjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, Associate 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.