Citation Nr: 21029534 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-36 676 DATE: May 13, 2021 REMANDED Entitlement to an evaluation in excess of 20 percent for cervical spine degenerative disk disease is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from July 1970 to July 1996. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has other matters pending before the Board, which will be addressed in separate decisions. The Veteran seeks a higher rating for his service-connected spine disability. He was given VA examinations for his spine in January 2009, May 2011, and January 2016. The Board finds that a new examination is necessary before deciding this claim, due to deficiencies in the prior examinations as well as evidence that the Veteran's spine disability may have worsened since his last examination. The January 2016 examination is ambiguous on the issue of whether the Veteran experiences increased functional loss after repeated use over time and during flare-ups; for both, the examiner checked a box stating that "the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss," but did not elaborate on what these statements were, or how any functional loss the Veteran experienced during flare-ups or after repeated use over time might be described in terms of range of motion. Similarly, the January 2009 and May 2011 VA examinations both indicated that the Veteran experienced flare-ups of his spine condition, but did not attempt to express the effect of flare-ups in terms of limitation of range of motion. These examinations are therefore not an adequate basis on which the Board can make a decision. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Additionally, while the January 2009 examination indicated where in the range of motion the Veteran began experiencing pain, the May 2011 and January 2016 examinations did not, despite noting that the Veteran did exhibit pain during motion. See Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). Furthermore, the Veteran's medical records offer some evidence that the Veteran's spine disability may have worsened since his last VA examination. The January 2016 examination report stated that the Veteran had no radicular pain or additional signs or symptoms due to radiculopathy. A VA treatment record from January 2017 describes the Veteran as having "chronic mid-back pain, most likely radicular in nature." (However, there are also mentions of radicular pain in medical records prior to the January 2016 examination; whether the Veteran's spine disability has worsened since January 2016, or the January 2016 examiner simply failed to address evidence that the Veteran's disability was worse than described, a new examination of the Veteran's spine is warranted.) The matter is REMANDED for the following action: 1. Obtain all outstanding VA and private treatment records pertinent to the claim. 2. Obtain a new examination of the Veteran's cervical spine 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. 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 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. The examiner should address whether the Veteran has radicular pain or other radicular symptoms as a result of his spine disability. 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.