Citation Nr: 21032646 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-04 466 DATE: May 27, 2021 ORDER Entitlement to increases in the initial ratings assigned for low back strain (10 percent prior to October 1, 2020; 20 percent prior to February 11, 2021; and 40 percent thereafter) is remanded. Entitlement to an initial rating in excess of 10 percent for cervical spine strain prior to October 1, 2020, and in excess of 20 percent thereafter is remanded. Entitlement to a rating in excess of 20 percent for radiculopathy of the right upper extremity is remanded. Entitlement to a rating in excess of 20 percent for radiculopathy of the left upper extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2003 to November 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for cervical spine and low back strains, each rated 10 percent disabling, effective November 9, 2012. In November 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. These matters were remanded in November 2018 and March 2020. An October 2020 rating decision subsequently granted a 20 percent disability rating for both cervical spine and low back strains, each effective October 1, 2020. The October 2020 rating decision also granted separate 20 percent ratings for left and right upper extremity radiculopathy, effective October 1, 2020. As these ratings do not constitute full grants of the benefits sought on appeal, this claim remained in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). This matter was remanded again in January 2021. The Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review requesting review of the October 2020 rating decision in the modernized review system, also known as the Appeals Modernization Act (AMA). Although the agency of original jurisdiction (AOJ) issued a rating decision in October 2020, this was a spurious decision. The AOJ had no authority to act since the Veteran did not correctly opt into the AMA following issuance of a supplemental statement of the case (SSOC). Accordingly, this claim remains in the legacy system. The Board is aware that this matter has been remanded several times. Unfortunately, for the reasons outlined below, another remand is required to allow the AOJ one more opportunity to comply with the Board's remand directives. 1. Entitlement to increases in the initial ratings assigned for low back strain (10 percent prior to October 1, 2020; 20 percent prior to February 11, 2021; and 40 percent thereafter) is remanded. 2. Entitlement to an initial rating in excess of 10 percent for cervical spine strain during the period prior to October 1, 2020, and in excess of 20 percent thereafter is remanded. As has been stated many times, VA examinations must include joint testing for active and passive motion in both weight-bearing and non-weight-bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, estimated ranges of motion should be provided during flare-ups, if feasible, even if the Veteran is not experiencing one during the examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the VA spine and neck examinations of record do not fully comport with the requirements of Correia or Sharp. In the prior remands, the Board has requested that if pain was noted during range of motion (ROM) testing, the point at which pain began should be clearly indicated. To date, this has not been done. In the prior remands, it has been reiterated that the lack of these measurements does not allow the Board to properly assess the functional impairment caused by the disabilities on appeal. During the pendency of the appeal the Court of Appeals for Veterans Claims (Court) issued a decision in Chavis v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 660 (April 16, 2021), wherein it stated that ankylosis of the back could be shown by showing functional impairment which was equivalent to ankylosis. Moreover, in Correia, supra. at 169, the Court has stated that in conducting range of motion testing, the examiner should note whether pain on motion is present, and, if so, where in the range of motion the pain sets in and whether that pain causes functional loss. Accordingly, the Board has no recourse but to remand the issues once again for a new VA examination that includes the evidence needed to properly assess functional impairment. 3. Entitlement to a rating in excess of 20 percent for radiculopathy of the right upper extremity is remanded. 4. Entitlement to a rating in excess of 20 percent for radiculopathy of the left upper extremity is remanded. The matter of entitlement to ratings in excess of 20 percent for radiculopathy of the right and left upper extremities is inextricably intertwined with the Veteran's other remanded issues; accordingly, they must be remanded as well. The matters are REMANDED for the following action: 1. Obtain copies of VA treatment records from February 2021 to the present. 2. Obtain, if possible, records of relevant private evaluations and treatment the Veteran has received for the disabilities on appeal. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. 3. Thereafter, schedule the Veteran for an appropriate VA examination (to include telehealth interview, if necessary) to determine the current nature and severity of his cervical and lumbar spine disabilities. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner is instructed to address the following: (a) Obtain information from the Veteran regarding the severity of his back and neck disabilities prior to February 11, 2021, as compared to current severity. (b) Based upon an interview with the Veteran, provide retrospective range of motion measurements for active and passive motion in both weight-bearing and non-weight-bearing circumstances for the period prior to February 11, 2021, as well as current range of motion measurements. The examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran, both retrospectively and currently. IF PAIN IS NOTED, THE POINT IN THE RANGE OF MOTION AT WHICH PAIN STARTED SHOULD BE CLEARLY NOTED. If the examiner is unable to provide a retrospective opinion, he or she must provide a detailed explanation for why an opinion cannot be rendered; a rationale based on the fact that the examiner did not previously examine the Veteran will not be deemed adequate. Specifically, if the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered. Once again, the examiner should interview the Veteran and cannot rely on the fact that the examiner did not previously examine the Veteran. (c) Identify the earliest manifestation of upper and lower extremity radiculopathy associated with the Veteran's service-connected cervical and lumbar spine disabilities. The examiner's attention is drawn to the following records (the following is a brief factual background and not intended to be a substitute for your review of the claim folder): February 2013 VA examination noting left arm weakness beginning in service; ongoing weakness in left arm and grip strength; April 2013 VA treatment record: bone spurs in bones of neck pressing on nerves that go to left arm, likely causing numbness in left arm; April 2013 VA treatment record: left limb pain/numbness likely radicular pain based on clinical description, cervical spondylosis; October 2013 VA treatment record: impression was probable C6 acute radiculopathy corelated with MRI of C-Spine; May 2016 VA treatment record: right leg pain, possibly from back; and August 2019 VA examination: low back pain radiates to right hip and down leg to ankle; decreased sensation noted in right lower leg/ankle. 4. The AOJ is instructed to compare the examination and opinion obtained on remand with the detailed instructions provided by the Board to ensure that the examination and opinion are adequate before returning this matter to the Board. If the reports are deficient in any manner, the AOJ should implement corrective procedures. The AOJ should then conduct any other development that may be indicated as a consequence of the actions taken in the preceding paragraphs. 5. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.