Citation Nr: 21040780 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-17 487 Rig DATE: July 7, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to February 25, 2020, and in excess of 30 percent thereafter, for service-connected cervical neck strain with degenerative disc disease, degenerative arthritis, and intervertebral disc syndrome (neck condition), is remanded. Entitlement to an initial rating in excess of 20 percent for right upper extremity radiculopathy associated with service-connected neck condition is remanded. Entitlement to an initial rating in excess of 20 percent for left upper extremity radiculopathy associated with service-connected neck condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 1990 to December 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) regional office. This matter was previously remanded by the Board in August 2019. As an initial matter, the Board notes that the August 2019 Board decision also remanded the Veteran's claim of entitlement to service connection for a thoracolumbar spine condition. In a September 2020 rating decision, service connection was granted for intervertebral disc syndrome with lumbosacral strain and moderate disc and facet degenerative changes (lower back condition). Service connection was also granted for urinary incontinence and bilateral lower extremity radiculopathy, both as secondary to service-connected lower back condition. As this represents a full grant of the benefit sought, the issue of entitlement to service connection for a lower back condition is no longer before the Board, nor are any neurological manifestations associated with such. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Additionally, the September 2020 rating decision assigned a 30 percent rating for the Veteran's service-connected neck condition, effective February 25, 2020. As this increase does not represent a total grant of the benefits sought on appeal, the claim for a higher rating remains before the Board. See AB v. Brown, 6 Vet. App. 25 (1993). Lastly, the September 2020 rating decision granted service connection for bilateral upper extremity radiculopathy, secondary to service-connected neck condition. The Board notes that, when considering an increased rating claim for a neck disability, the Board must consider all manifestation of that disability, including both musculoskeletal and neurological. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). As the Veteran's bilateral upper extremity radiculopathy is related to his neck condition, the issue of entitlement to an increased rating for bilateral upper extremity radiculopathy is properly included in the list of issues before the Board. 1. Entitlement to a rating in excess of 10 percent prior to February 25, 2020, and in excess of 30 percent thereafter, for service-connected neck condition, is remanded. 2. Entitlement to an initial rating in excess of 20 percent for right upper extremity radiculopathy associated with service-connected neck condition is remanded. 3. Entitlement to an initial rating in excess of 20 percent for left upper extremity radiculopathy associated with service-connected neck condition is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. Specifically, in light of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), a remand is necessary to obtain a RETROSPECTIVE OPINION regarding the nature and severity of the Veteran's neck condition. In Correia, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia, 28 Vet. App. at 168. Here, the February 2015 examiner did not specify whether active and passive motion were tested, or whether the results provided were weight-bearing or non-weight-bearing. See February 2015 VA Neck Conditions Disability Benefits Questionnaire (DBQ). Additionally, in Sharp, the Court held that, pursuant to VA regulations and the VA Clinician's Guide, 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, flare-ups and repetitive use over time affect functional impact. Sharp, 29 Vet. App. at 26. Further, VA examiners are expected to offer opinions on functional loss that would occur during flare-ups and repetitive use over time based on estimates derived from relevant sources, including the Veteran's lay statements. Id. at 34. In other words, stating that the examination was not conducted during a flare-up or following repetitive use over time as the sole rationale for not addressing the functional impacts of such is not sufficient. Here, the February 2015 declined to opine as to the functional impacts of repetitive use over time or flare-ups, stating that functional loss could not be quantified on a hypothetical situation. See February 2015 VA Neck Conditions DBQ. As the February 2015 VA examination did not fully satisfy the requirements of 38 C.F.R. § 4.59, Correia, or Sharp, the Board finds that a remand is necessary to obtain a retrospective opinion regarding the severity of the Veteran's service-connected neck condition. With respect the Veteran's service-connected bilateral upper extremity radiculopathy, as the requested VA opinion may include neurological findings, the Board finds the issues to be inextricably intertwined and, therefore, a remand is necessary. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Lastly, the Board notes that the evidence indicates that there may be pertinent private medical records that are not associated with the electronic claims file. Specifically, the record indicates that his neck condition and associated upper extremity radiculopathy are treated by the Medical University of South Carolina (MUSC) and the Spine Institute of the Carolinas. See Beaufort Naval Hospital records, received November 2019; MUSC records, received March 2015; Spine Institute of the Carolinas records, received March 2015. However, no records relating to such treatment have been received since March 2015. The evidence also indicates that, in November 2019, the AOJ requested that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers that provided him with treatment pertinent to his claims. The AOJ also provided the Veteran and his representative with a VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information, to allow the AOJ to obtain the Veteran's medical records on his behalf. See November 2019 VA Correspondence. To date, the Veteran has not responded to the request. VA's duty to assist is not a "one-way street," and a Veteran seeking help cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining pertinent evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Nonetheless, as a remand of this matter is otherwise warranted, the Board finds that the AOJ should make one more attempt to identify and obtain any pertinent medical records. The Veteran is cautioned that failure to cooperate with any requested development may result in the denial of his claim. 38 C.F.R. § 3.655. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the electronic claims file any pertinent medical records, whether VA or private, including records relating to treatment at MUSC and Spine Institute of the Carolinas, as well as records relating to treatment, from November 2019 to current, at Charleston VAMC, Charleston Naval Health Clinic, and Beaufort Naval Hospital. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, return this matter to the May 2020 examiner and obtain a RETROSPECTIVE OPINION regarding the nature and severity of the Veteran's neck condition since September 2013. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, an examination should be scheduled and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: 3. If an examination is conducted: i. Obtain the Veteran's detailed lay history, including progression of symptomatology. If the Veteran describes flare-ups, document the frequency, severity, and duration thereof. ii. Test and document the range of motion (ROM) for the cervical spine in active motion, passive motion, weight-bearing, and non-weight-bearing, on both an initial and after repetitive use basis. FOR EACH ROM, THE EXAMINER IS ASKED TO EXPLICITLY IDENTIFY THE DEGREE IN WHICH PAIN IS FIRST EVIDENCED BY THE VETERAN'S VISIBLE BEHAVIOR. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, a thorough explanation should be provided. iii. Identify the nature and severity of all current manifestations of the Veteran's service-connected neck condition. The extent of any weakened movement, excess fatigability, and incoordination should be described. Any additional impairment due to such should be assessed in terms of the degree of additional ROM loss. Additional limitation following repetitive use over time, if any, must also be noted. iv. If the Veteran describes flare-ups, after documenting the frequency, severity, and duration thereof, express an opinion as to whether there would be additional functional impairment during such flare-ups. The examiner should assess such impairment in terms of the degree of additional ROM loss and provide an explanation as to how such was determined. v. Note any neurologic impairment associated with the Veteran's neck condition. 4. Provide a RETROSPECTIVE OPINION, utilizing the Veteran's medical records and lay history, and opine as to the severity of the Veteran's service-connected neck condition from September 2013 to current. Any impairment, and any additional impairment due to repetitive use over time or flare-ups, should be assessed in terms of limitation to ROM, if possible. Any neurologic impairment associated with the Veteran's neck condition should be noted. If the examiner is unable to render such an opinion, the examiner should specifically state why and provide a rationale for the determination. Any opinion expressed by the examiner must be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If it is not feasible to perform a requested assessment to any degree of medical certainty without resort to speculation, a thorough explanation as to why the assessment cannot be performed should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. 5. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.