Citation Nr: 21029655 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-37 940 DATE: May 14, 2021 REMANDED The appeal for an increased rating, in excess of 10 percent, for degenerative arthritis of the lumbar spine (lumbar spine disability) is remanded. The appeal for an increased rating, in excess of 10 percent, for spondyloarthropathy of the cervical spine (cervical spine disability) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1986 to June 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In November 2018, the Board remanded the case to the RO for further evidentiary development. Subsequently, in a July 2020 rating decision, the RO increased the disability rating for the cervical spine disability to 10 percent disabling, effective May 7, 2004. As this increase is not representative of a total grant of the benefits sought on appeal, the increased rating claim for the cervical spine disability remains before the Board, on appeal. AB v. Brown, 6 Vet. App. 35 (1993). While the Board regrets further delay, additional developments are necessary before it may render a decision on these issues on appeal. In November 2018, the Board remanded this matter for new, contemporaneous VA examinations on the Veteran's cervical and lumbar spine disabilities. In September 2019, the Veteran contacted VA and requested that a new examination request be submitted, per the Board remand; and he notified VA that he would be available for an examination, beginning October 1, 2019. However, the AOJ did not follow up with the Veteran about his request, but rather, noted that the Veteran's VA examinations for his cervical and lumbar spine disabilities were cancelled at his request. Thus, as the AOJ failed to follow up on the Veteran's request, and/or failed to reschedule the Veteran's VA examinations, a remand is required for the AOJ to reschedule the Veteran's VA examinations for his cervical and lumbar spine disabilities. The matters are REMANDED for the following action: 1. Contact the Veteran to confirm a suitable date and time for him to report to his VA examinations. a. Associate all attempts to schedule the VA examinations, including all communications to and from the Veteran, with the claims file. b. Also notify the Veteran that a failure to report to his VA examinations, without showing good cause, shall result in the adjudication of his claims, based on the current, available evidence in the claims file. 2. Thereafter, schedule the Veteran for a new VA examination to obtain evidence addressing the current severity of his cervical spine and lumbar spine disabilities. The appropriate disability benefits questionnaire form should be utilized for each disability. Additionally, the VA examiner must undertake the following: a. For each disability (i.e. lumbar spine and cervical spine disability), conduct range of motion testing, specifically noting the motion in degrees, in both active motion and passive motion, and in both weight-bearing and non-weightbearing. See Correia v. McDonald, 28 Vet. App. 158, 169 170 (2016). b. If the Veteran has reported any periods of flare ups, but range of motion testing could not be conducted during a flare up, state the severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, according to the Veteran, to what extent, if any, they affect functional impairment. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. Mcdonald, 28 Vet. App. 158 (2016). c. If motion is specifically limited by pain, specify the degree where pain is noted to begin for all ranges of motion tested. (Continued on the next page) d. To the extent possible, any incoordination, weakened movement and excess fatigability on use must be described. e. To the extent possible, assess the functional impairment due to incoordination, weakened movement and excess fatigability on use, in terms of additional degrees of limitation of motion. Also, specify whether ankylosis is present. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.