Citation Nr: 21032045 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 17-44 135 DATE: May 25, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for cervical spine intervertebral disc syndrome (IVDS) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1979 to September 1985, August 1991 to February 1992, and January 2003 to January 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in September 2019. A transcript of the hearing is associated with the Veteran's claims folder. This case was previously before the Board in April 2020, at which point the claim was denied on the merits. The Veteran appealed the Board's April 2020 denial to the United States Court of Appeals for Veterans Claims (Court). In February 2021 the Court issued a joint motion for partial remand (JMPR) setting aside the Board's April 2020 decision and remanding the issue for further proceedings. Entitlement to a disability rating in excess of 10 percent for cervical spine intervertebral disc syndrome (IVDS) is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In the February 2021 JMPR, the Court concluded that the Board erred in failing to ensure that VA provided the Veteran with an adequate examination. Specifically, the Court found that VA examinations conducted in November 2013 and June 2017 were inadequate as they failed to provide range of motion measurements for the Veteran's cervical spine on active and passive motion, and in weight-bearing and non-weight-bearing status. See Correia v. McDonald, 26 Vet. App. 158, 169-70 (2016). The Court additionally found that the June 2017 examination did not provide an estimate of range of motion during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). The Court thus concluded that a remand was necessary to ensure that the Veteran was provided an adequate examination. Based on the Court's aforementioned holding, the Board finds that the claim must be remanded for further medical development consistent with the JMPR. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from December 2019 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected cervical spine intervertebral disc syndrome (IVDS). 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. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. Additionally, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. 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. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, 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.