Citation Nr: 21031363 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-54 273 DATE: May 21, 2021 REMANDED A disability rating higher than 20 percent for the service-connected cervical spine disability is remanded. REASONS FOR REMAND The appellant is a veteran (the Veteran) who had active duty service from July 1962 to July 1990. He received multiple awards and commendations including the Bronze Star Medal. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2021 Order of the United States Court of Appeals for Veterans Claims (Veterans Court). The appeal originates from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e). At the Board hearing, the Veteran was informed of the basis for the RO's denial of his claims and he was informed of the information and evidence necessary to substantiate each claim. 38 C.F.R. § 3.103. A transcript of the hearing is associated with the claims file. In a December 2019 decision, the Board granted service connection for a bilateral knee disability, granted an increased rating of 40 percent for the service-connected thoracolumbar spine disability, and denied a rating higher than 20 percent for the service-connected cervical spine disability. The Veteran appealed that decision to the Veterans Court. In a January 2021 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board's decision in part, and remanded the issue of entitlement to a disability rating higher than 20 percent for the service-connected cervical spine disability to the Board for additional development consistent with the Joint Motion. The Board's decision regarding the other matters was not disturbed. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2021). 38 U.S.C. § 7107(a)(2) (West 2014). Entitlement to a disability rating in excess of 20 percent for a cervical spine disability. The parties to the January 2021 Joint Motion agreed that remand was warranted because the Board erred in failing to ensure that the duty to assist was met by providing an adequate examination consistent with Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). Specifically, the parties agreed that the May 2016 VA examiner did not ascertain adequate information, including the frequency, duration, characteristics, severity, or functional loss during flares and with repeated use over a period of time. The parties to the Joint Motion noted that, when the Veteran was examined in May 2016, the examiner opined that she could not determine whether pain, weakness, fatigability, or incoordination significantly limited functional ability without mere speculation because the Veteran was not "currently in a flare and the examiner would have to be present during a flare to objectively measure additional loss of range of motion...." It is unclear from this description whether the Veteran's statements as to additional functional loss were considered. The parties agreed that, on remand, the Board would provide a new examination of the cervical spine and, if the Veteran is not experiencing a flare, or if the examination was not conducted after repeated use over a period of time, the examiner would provide estimates consistent with Sharp. The matter is REMANDED for the following action: 1. Schedule an appropriate VA examination to determine the manifestations and functional impairment caused by the service-connected cervical spine disability. The relevant documents in the claims file should be made available to the VA examiner. Range of motion should be reported with active and passive motion, and with weight-bearing and non-weight-bearing. Symptomatology, including range of motion during flares should be documented. If the examination is not conducted during a flare, an estimate of range of motion should be provided. The Veteran's description of his range of motion during flares should be considered and recorded. Symptomatology, including range of motion after repeated use over a period of time should be documented. If the examination is not conducted after repeated use over a period of time, an estimate of range of motion should be provided. The Veteran's description of his range of motion after repeated use over a period of time should be considered and recorded. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, the examiner shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that the examiner has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Readjudicate the remanded claim. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.