Citation Nr: 21030326 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 14-04 574 DATE: May 18, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for cervical spine osteoarthritis prior to October 8, 2019, and in excess of 20 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1979 to January 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO effectuated an April 2010 Board decision granting service connection for osteoarthritis of the cervical spine, assigning an initial 10 percent rating therefor, effective December 20, 2002. This case was previously before the Board in June 2015 and October 2017, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. In March 2020, after taking further action, the AOJ increased the rating for the Veteran's cervical spine disability to 20 percent, effective October 8, 2019. Entitlement to an initial rating in excess of 10 percent for cervical spine osteoarthritis prior to October 8, 2019, and in excess of 20 percent thereafter, is remanded. Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim and to afford him every possible consideration. As noted above, the Board remanded the issue on appeal in October 2017 for further development. Specifically, the October 2017 Board remand directed, in part, that another examination be obtained, to include testing the range of motion of the Veteran's cervical spine in active motion, passive motion, weight-bearing, and nonweight-bearing, and to provide an opinion as to whether any pain could significantly limit functional ability during flare-ups. Pursuant to the Board's October 2017 remand, the Veteran was afforded a VA examination in October 2019. However, the resulting examination does not comply with the remand directives. Notably, in conducting range of motion testing for passive motion and nonweight-bearing motion, the examiner found no objective evidence of pain but failed to provide any range of motion findings. See Correia v. McDonald, 28 Vet. App. 158, 170 (2016). No explanation was given in the examination reports for why these range of motion findings could not be provided. As such, remand is needed for a new VA examination on this issue. Additionally, the Board observes that although the examiner addressed how pain limited functional ability with flare ups as of the date of the examination, no opinion was offered with respect to the earlier portion of the period on appeal. To the extent feasible, the examiner should provide this information. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). Finally, a November 2019 Bureau of Prisons Match data indicates that the Veteran was confined from July 2015 to August 2019 at a state prison. The Veteran has been service connected for cervical spine osteoarthritis since September 2002, and August 2019 VA treatment records demonstrate the Veteran received treatment for his diabetes while he was incarcerated. This suggests that there may be relevant records to the issue on appeal in possession of the state prison. This evidence could bear on the outcome of the Veteran's appeal, as such efforts must be made to procure them. See, e.g., 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). This matter is REMANDED for the following action: 1. Ask the Veteran to provide a release for relevant records of treatment from the state prison where he was incarcerated. If he provides the necessary release, assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed, arrange to have the Veteran scheduled for an examination of his cervical spine. The examiner should provide a full description of the Veteran's associated functional impairments as they relate to the relevant rating criteria. The examination must include tests of all applicable ranges of motion in active motion, passive motion, weight-bearing, and non- weight-bearing. If it is not feasible to perform such testing, the examiner should explain why such testing is not possible. Additionally, to the extent feasible, the examiner should be asked to indicate whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that, during all or any portion of the period in question beginning September 20, 2002, the Veteran had pain in the cervical spine on active motion, passive motion, in weight bearing, and in non-weight bearing. The examiner must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran's competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. In doing so, the examiner should also be asked to indicate whether it is at least as likely as not that, during all, or any portion, of the period in question beginning September 20, 2002 the Veteran experienced functional loss in the cervical spine due to flare-ups and repeated use over time, to the extent feasible. Additionally, the examiner should offer an opinion as to whether it is at least as likely as not that the additional loss of function experienced by the Veteran as demonstrated in the report of the October 2019 examination has been present to the same degree since September 20, 2002. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner's conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Richard Kettler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.