Citation Nr: 21026687 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-26 954 DATE: May 3, 2021 REMANDED Entitlement to an evaluation in excess of 20 percent for cervical spine degenerative disc disease with cervical lordosis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1996 to September 2002. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in October 2018. Unfortunately, the Board finds that a second remand is necessary, as the medical opinion obtained in response to the last remand is inadequate. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In October 2018, the Board remanded for a new examination, finding that the previous, March 2014 examination was inadequate. Specifically, the March 2014 examination noted that the Veteran experienced additional loss of functional ability during flare-ups and after repetitive use over time, but the examiner did not express this loss of function in terms of limitation of range of motion (ROM). A new VA examination was undertaken in December 2019; this time, the Veteran reported having a flare-up during the examination. In addition to the functional loss caused by the flare-up, the examiner reported that the Veteran's functional ability was further limited by pain, weakness, fatigability, or incoordination after repeated use over time. The examiner stated that they were unable to express this limitation in terms of range of motion. While an examination is not necessarily inadequate simply because it states that an opinion cannot be given without resort to speculation, it must be clear that the examiner has considered all procurable and assembled data before stating that an opinion cannot be reached. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The December 2019 examiner said only that they were "unable to objectively measure [the Veteran's] ROM as patient is not here following repetitive use over time." There was no indication that the examiner attempted to elicit information about the Veteran's post-repetitive-use ROM by other means, such as by asking the Veteran questions. The examination also indicated that the Veteran experienced pain on forward flexion, extension, right and left lateral flexion, and right lateral rotation, but did not indicate where in the range of motion the Veteran began to experience pain. While it is possible that the ROM numbers in the examination do indicate how far the Veteran can move his neck without experiencing pain, the examination report is ambiguous, and clarification is needed before the Board can make a full determination. The matter is REMANDED for the following action: Obtain a new examination of the Veteran's cervical spine (neck) from an appropriate VA clinician. The Veteran's entire claims file (including a copy of this remand) must be made available to the examiner for review, and the examiner must certify in the addendum opinion report that the claims file has been reviewed. The examiner must perform full range of motion testing. The examiner should describe any pain, weakened movement, excess fatigability, instability, and incoordination present. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why. The examiner must clearly identify where in the arc of motion the Veteran begins to experience pain, regardless of whether the examiner ultimately finds that said pain results in functional loss. The examiner should also 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 cervical spine symptoms and after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an estimate, in degrees, any additional limitation of motion caused by functional loss during a flare-up and after repeated use over time. Continued on the next page If the examiner still cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should explain why, and state whether this is because of 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. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.