Citation Nr: 21031020 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 13-03 567A DATE: May 20, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for degenerative disc disease (DDD) of the cervical spine is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from March 2003 to February 2011. This case comes to the Board of Veterans' Appeals (Board) on appeal from a January 2012 Department of Veterans Affairs (VA) rating decision, which granted service connection for cervical spine DDD and rated 10 percent, effective in March 2011. A February 2013 Decision Review Officer decision increased the rating to 20 percent, effective in March 2011. An April 2016 videoconference hearing was held before the undersigned. In September 2016, the Board remanded the case to the Regional Office (RO) for additional development. An April 2019 Board decision, in pertinent part, denied an initial rating in excess of 20 percent for the cervical spine disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). In a February 2020 Order, the CAVC granted a Joint Motion for Partial Remand (JMPR) of the parties, thereby vacating that part of the Board's decision denying a higher rating for the cervical spine disability and remanding the case to the Board for action consistent with the terms of the JMPR. In June 2020, the Board remanded the case to the RO for additional development. Subsequently, a January 2021 rating decision granted service connection for radiculopathies (middle radicular nerves) of the left and right upper extremities, rated 20 percent, each, effective January 18, 2021. After a new claim was received for an increased rating on the disabilities, a May 2021 rating decision continued the assignment of those ratings. To date, the Veteran has not indicated a desire to appeal those rating assignments (and effective date) to the Board, nor has she filed a new (supplemental) claim for a higher rating. Entitlement to an initial rating in excess of 20 percent for DDD of the cervical spine Unfortunately, there has not been substantial compliance with the Board's previous remand directive, and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). While the examination report furnished many of the requested findings in regard to the Veteran's current level of disability, the examiner omitted providing a response to the question of the Veteran's functional loss due to the cervical spine disability during any flare-ups and when the neck was used repeatedly over a period of time dating back to March 2011 (her first post-service month and effective date of service connection). In other words, she did not provide a retrospective opinion (as requested). The request for such information was derived from the terms of the January 2020 JMPR. The matter is REMANDED for the following action: Arrange for the claims file to be returned to the examiner who conducted the January 2021 spine examination of the Veteran, for an addendum retroactive opinion regarding the nature and severity of her DDD of the cervical spine prior to January 2021. [If that examiner is unavailable to provide the opinion, arrange for the record to be forwarded to another appropriate clinician for review and the opinion sought.] If an interview of the Veteran and/or another physical examination is necessary to provide the opinion sought, it should be arranged. The examiner is asked to furnish a retrospective opinion regarding the Veteran's functional loss attributable to her service-connected cervical spine disability during any flare-ups and when the neck is used repeatedly over a period of time. The examiner should describe how/estimate the extent to which the Veteran's neck disability limited her functional ability during any flare-ups or repetitive movements from March 2011 to January 2021 (the time of the Veteran's in-person VA examination). The determination should be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups/repetitive movements. If such findings cannot feasibly be described, or if an approximation of such findings in reliance of the Veteran's statements cannot be given, the examiner must provide a full explanation why that is so. A response that the requested opinion cannot be provided "without resorting to mere speculation" because there was insufficient medical evidence upon which to rely is insufficient because it fails to explain why such loss feasibly could not be determined or estimated (e.g., based on the Veteran's self-reports). For example, what further medical evidence is necessary to feasibly describe such findings, or approximations, and may the Veteran's own descriptions of flare-ups be relied upon to form a conclusion (i.e., are they consistent or inconsistent with the clinical presentation)? Complete rationale should accompany all opinions. George R. Senyk Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.