Citation Nr: 21031848 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-02 422 DATE: May 24, 2021 REMANDED Entitlement to a rating in excess of 20 percent for residuals of cervical fracture and fusion (hereinafter cervical spine disability) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1973 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the VA Regional Office (RO) in Montgomery, Alabama. A December 2019 Board decision denied the Veteran's claim for a rating in excess of 20 percent for cervical spine disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Remand (Joint Motion) and, in a November 2020 Court Order, the Court granted the Joint Motion, vacating the Board's December 2019 decision and remanding the matter for compliance with the Joint Motion. Entitlement to a rating in excess of 20 percent for cervical spine disability is remanded. The Veteran, and his representative, contends that a higher evaluation is warranted for his service-connected cervical spine disability. For reasons explained below, the Board finds that remand is necessary. First, the Board takes notice that the record indicates that there may be outstanding relevant VA treatment records. VA treatment records were last obtained by VA in November 2017, about four years ago, and the record shows that the Veteran has been consistently receiving VA treatment for his cervical spine disability. Thus, as any recent complaint or treatment with VA is relevant to determining the current severity of the Veteran's cervical spine disability, remand is necessary to associate any outstanding VA treatment record with the claims file. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record). Second, the record reflects that the Veteran last underwent a VA examination for his cervical spine disability in November 2017. The Board has reviewed the examination report and finds it inadequate for rating purposes because it does not comply with the Court's ruling in Correia v. McDonald, 28 Vet. App. 158 (2016). While the November 2017 examiner did answer questions as to pain with weightbearing and non-weightbearing and passive range of motion (ROM), the examiner did not provide adequate explanations or rationale for his answers and he did not provide specific values for active or passive ROM testing, weight-bearing or non-weight-bearing. Further, the examiner's notation that testing could not be conducted is not sufficient because: "[i]f for some reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary . . . , he or she should clearly explain why that is so." Id. at 170. Next, the examination report reveals that the Veteran did not report flares of the cervical spine; however, this finding is inconsistent with the reports of the Veteran. In this regard, the Veteran described periods of increased pain, which appeared indicative of flare-ups, yet the examiner noted that the Veteran did not have flare-ups without providing any further explanation. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." Id. at 34. The Court further explained that, in the event an examination is not conducted during a flare-up, the "critical question" in assessing the adequacy of the examination was "whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." Id. (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). Lastly, the record reflects that, aside from the November 2017 examination, the Veteran underwent a VA examination for his disability in April 2015. The Board has reviewed the examination report and finds that it is not adequate. The VA examination report is inadequate for rating purposes because, as explained above, it does not reveal that any passive, weight-bearing or non-weight-bearing ROM testing was conducted. Correia, 28 Vet. App. 158. Moreover, the VA examination report shows that during examination, the Veteran reported chronic neck pain that increased when the weather changed or when he was more active. The examiner, however, found that he did not report periods of flare-ups, even though the Veteran described periods of flares. Additionally, the examination report does not reveal that the examiner inquired as to the severity, frequency, and duration of the flares; and it does not reveal any meaningful estimate of the additional functional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. Given the above, the Board may not rely upon the VA examination reports in their present form and, therefore, finds the medical evidence is inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, as the examiners provided deficient explanations and failed to give adequate findings in regard to the Correia and Sharp standards, the Board finds that remand is also necessary for retrospective supplemental findings. See Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008) (discussing situations when it may be necessary to obtain a "retrospective" medical opinion to determine the date of onset or severity of a condition in years past); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from November 2017 to the Present. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected cervical spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. As to the below, if it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (a) Test the Veteran's active motion, and passive motion, with weight-bearing and without weight-bearing. Note: The examiner should determine the effective ROM for the disability and present the results of ROM tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the ROM test results for both active and passive motion, and in weightbearing and non-weightbearing. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED ROM TESTS. If any of these findings are not possible, please provide an explanation. (b) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. Note: If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced ROM during flares or repetitive use. Cervical Radiculopathy (c) For cervical radiculopathy, opine on whether it is at least as likely as not the Veteran has, or has had, cervical radiculopathy, at any time during the pendency of the claim or recent to the filing of the claim. Explain. (d) If so, whether the Veteran's cervical radiculopathy is at least as likely as not (1) proximately due to service-connected cervical spine disability, or (2) aggravated beyond its natural progression by service-connected cervical spine disability. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. Retrospective Findings Following a review of the record, the clinician should provide retrospective findings for the below identified past examinations. If it is not possible to provide a specific measurement without speculation, the clinician must 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), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training). (e) Provide an addendum retrospective opinion for the Veteran's service-connected cervical spine disability to supplement the November 2017 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. (ii) Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. (f) Provide an addendum retrospective opinion for the Veteran's service-connected cervical spine disability to supplement the April 2015 VA Examination Report that: (i) Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. (ii) Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, 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.