Citation Nr: 21031160 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-47 937 DATE: May 20, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for cervical strain is remanded. REASONS FOR REMAND The Veteran had active duty service from October 1986 to August 1992. This matter comes before the Board of Veterans' Appeals (Board) from a May 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for a cervical spine disability and assigned a 10 percent disability rating. The Board notes that the Veteran filed a claim for an increased rating in January 2013, which it construes as a Notice of Disagreement (NOD) to the May 2012 rating decision because it was received within one year of the rating decision granting service connection. Moreover, new and material evidence was received within one year of the May 2012 rating decision, including an April 2013 rating decision. Thus, it did not become final. In a May 2013 rating decision, the RO continued the 10 percent disability rating and the Veteran subsequently filed a notice of disagreement. This matter was previously before the Board in April 2019 and was remanded for further evidentiary development. In an October 2019 decision, the Board, in relevant part, denied an increased rating for cervical strain. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The Court granted a joint motion for partial remand (JMPR) in December 2020, vacating the Board's October 2019 denial of an increased rating. The Veteran testified before the undersigned Veterans Law Judge in a January 2019 hearing. A copy of the hearing transcript has been reviewed and associated with the claims file. Entitlement to an initial rating in excess of 10 percent for cervical strain is remanded. Pursuant to the December 2020 JMPR, a remand is necessary to correct deficiencies in the prior VA examinations. The Veteran and VA stipulated that both the February 2012 and August 2019 VA examinations, which the Board relied on in denying his claim, are inadequate under the Court's ruling in Correia v. McDonald, 28 Vet. App. 158, 170 (2016). The February 2012 examiner noted objective evidence of painful motion, but they did not record the results of range of motion (ROM) testing for pain on both active and passive motion, and in weight-bearing and non-weight-bearing. The August 2019 examiner noted pain on passive ROM testing and with weight-bearing, and no evidence of pain on non-weight-bearing, but did not note whether there was evidence of pain on active ROM testing or state the point at which evidence of pain was exhibited for each test. The 2019 examination is also inadequate under Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), because the examiner stated that they were unable to describe functional loss in terms of ROM for repeated use over time and during flare-ups but did not provide an adequate reasoning for their inability to do so. The medical opinion obtained on remand should fully comply with the requirements of Correia and Sharp. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records, from August 2019 to the present. 2. After completion of #1, obtain an addendum opinion from the August 2019 VA examiner or, if they are unavailable then another similarly qualified examiner may respond instead. The entire claims folder, including a copy of this remand, must be made available to the examiner, and the examiner's review of the folder should be noted in the examination report. A new VA examination is only necessary if deemed so by the examiner. The examiner should respond to the following: (a.) Did the Veteran exhibit objective evidence of pain with active ROM testing? If so, please indicate the point at which evidence of pain was exhibited, expressed in degrees. (b.) The August 2019 examination report notes evidence of pain with passive ROM testing. Please indicate the point at which evidence of pain was exhibited, expressed in degrees. (c.) The August 2019 examination report notes evidence of pain with weight-bearing. Please indicate the point at which evidence of pain was exhibited, expressed in degrees. (d.) The August 2019 examination report indicates that the Veteran was observed immediately after repetitive use over time. However, the examiner indicated that they were unable to say without speculation whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time. The examiner must explain why this is so. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. (e.) The Veteran reported experiencing flare-ups of his cervical spine disability. Please provide an opinion as to whether the flare-ups are associated with additional functional loss. If so, please estimate the degree of lost motion during such flare-ups. In providing an estimate, the examiner should consider information in the record and provided by the Veteran regarding the severity, frequency, duration, and/or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees cannot be given. If the claims file contains inadequate information to provide an estimate, a new examination may be necessary to elicit this information from the Veteran. Should the examiner maintain that they cannot provide an estimate without resorting to speculation, they must explain why this is so. Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. If a new examination is conducted, the examiner must, in addition to noting the new range of motion findings, also estimate retroactive range of motion at the time of the prior examinations. The examiner may express their level of confidence in the estimates on a scale of 1-5, with 5 being most confident and 1 least confident. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. 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.