Citation Nr: 21041120 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 09-38 546 DATE: July 8, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent prior to June 29, 2010, for a cervical spine disability is remanded. Entitlement to an increased rating in excess of 20 percent from June 29, 2010, to February 4, 2015, for a cervical spine disability is remanded. Entitlement to an increased rating in excess of 10 percent from February 4, 2015, for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1994 to August 1994 and from September 1997 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision letter issued by the Department of Veterans Affairs (VA) Regional Office (RO). For the reasons notes below, the Board finds that remand is warranted. The matter first appeared before the Board in December 2015 at which time the matter was remanded to obtain outstanding treatment records. The Board notes that the records reflects in his August 2009 formal appeal to the Board, the Veteran stated that he receives regular chiropractic treatment, he has numbness in his left hand, severely limited range of motion (ROM), and without the sustained care, his quality of life would be severely impaired. He stated that he receives care from Dr. Noe Flores who stated that without regular treatment he would experience pain and ROM limitations [that would place him in the 20 percent range]. Here, the Board highlights that the Veteran himself stated that he experienced/ experiences severely limited ROM. Then, in December 2017, October 2019 and last in February 2021, the Board remanded the matter to obtain an examination in compliance with Sharp v. Shulkin, 29 Vet. App. 26 (2017). Presently, the Board notes that, just as prior Board remands instructed the AOJ to provide the Veteran with an examination addressing the functional loss that the Veteran experienced during flare-ups and following repeated use over time, it again remands the matter for the same issues as noted below because the Board must ensure compliance with the prior remand directives in this regard. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran last underwent a VA examination in February 2021. The examiner confirmed a diagnosis of degenerative arthritis and also diagnosed him with intervertebral disc syndrome (IVDS). The examiner reported that the Veteran stated things have not changed much since his last examination. He stated that flares of pain will cause radicular pain into the left hand and into the pinky and ring. [During the pendency of the appeal, the Veteran was granted a separate rating for left upper extremity cervical radiculopathy in a March 2021 rating decision.] The Veteran reported experiencing flare-ups, functional loss or functional impairment of the joints or extremity, including after repeated use over time, which the Veteran described a decreased ROM of the neck that affected activities requiring use of the head/neck as well as visuals of sight. The examiner noted that pain significantly limited functional ability with repeated use over time, however, the examiner failed to provide the estimated ROM based on a review of all procurable information. The examiner indicated that the Veteran's statements and physical examination findings did not suggest that his neck ROM changes during repetitive motion. The examiner noted that pain significantly limited functional ability with flare-ups, however, the examiner failed to provide the estimated ROM based on a review of all procurable information. The examiner indicated that the Veteran subjectively stating that his neck ROM may change but could quantify it during flares. The examiner indicated that the Veteran stated the pain is the main limiting factor and not necessarily the ROM. The examiner found that there were no medical records indicating ROM during a flare as this is not a typical clinical examination finding that was documented. Here, the Board again highlights that the examiner indicated the Veteran stated that pain is the main limiting factor, and not necessarily ROM. This is in contradiction the Veteran's statement in his August 2009 formal appeal where, as noted above, he stated that he experienced severely limited ROM. Hence, the procurable information does lead to some indication that the Veteran experiences limited ROM due to either flare-ups and/ or on repeated use over time. The examiners must elicit and obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Sharp, 29 Vet. App. at 36. The Board further notes that the examiner noted that the pain was the main limiting factor, not necessarily ROM, as the reported by the Veteran. However, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. 38 C.F.R. § 4.59. It is incumbent on the examiner to elicit the necessary information. The prior Board remands instructed the examiner to describe such functional loss in terms of additional degrees of lost motion. However, the February 2021 failed to report the ROM experienced during flareups and repeated use over time. The Board is aware of the difficulty in providing an opinion that in part requires some speculation [here, regarding severity of flare-ups], particularly when the Veteran does not experience a flare-upon examination. Nonetheless, to comply with governing legal guidelines, a medical opinion that addresses the degree of severity of the neck disability during the reported flare-ups is necessary. Hence, remand is again warranted to obtain examinations in compliance with Sharp. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and private treatment records regarding the Veteran's cervical spine disability. 2. After the development sought above is completed, forward the Veteran's file to an appropriate clinician, preferably an orthopedic surgeon or similarly qualified clinician. Upon review of the claims, the examiner is asked to provide an opinion as to the severity level of the Veteran's service-connected cervical spine disability, since January 22, 2006. Together with the claims file, lay statements of record and medical evidence, the examiner is specifically asked to opine as to the functional loss from the Veteran's cervical spine disability that occurs during flare-ups and when the neck is used repeatedly over time. The examiner should note (elicit from the Veteran a report of) the frequency and duration of flare-ups and describe how/estimate the extent to which the neck disability limits functioning during flare-ups and following repeated use over time. The determination should be portrayed in terms of the degree of additional ROM loss due to pain on use or during flare-ups. If an opinion requested (such as an estimate of additional loss of function during flare-ups based on the Veteran's report and clinical record) cannot be provided "without resort to mere speculation" there must be explanation why that is so. The examiner should also indicate whether the Veteran's own descriptions of functional impairment during flare-ups may be relied upon, and if not, why not. The examiner is further asked to opine as to ROM to include for limitations due to pain, on use and on passive motion, and with and without weight-bearing; note whether there are neurological manifestations, describing any found in detail; and note whether there have been incapacitating episodes of cervical disc disease, if so noting their frequency and duration. 3. If upon review of the claims file, the examiner determines that an in-person examination is necessary, schedule the Veteran for a VA examination. Arrange for an orthopedic examination of the Veteran to assess the severity of his service-connected cervical spine disability. The examiner should review the Veteran's claims file, and should: Conduct ROM studies, to include for limitations due to pain, on use, on passive motion, and with and without weight-bearing; note whether there are neurological manifestations, describing any found in detail; and note whether there have been incapacitating episodes of cervical disc disease, if so noting their frequency and duration. The examiner is also asked to furnish an opinion regarding the functional loss from the Veteran's cervical spine disability that occurs during flare-ups and when the neck is used repeatedly over time since January 22, 2006. The examiner should note (elicit from the Veteran a report of) the frequency and duration of flare-ups and describe how/estimate the extent to which the neck disability limits functioning during flare-ups. The determination should be portrayed in terms of the degree of additional ROM loss due to pain on use or during flare-ups. If an opinion requested (such as an estimate of additional loss of function during flare-ups based on the Veteran's report and clinical record) cannot be provided "without resort to mere speculation" there must be explanation why that is so. The examiner should also indicate whether the Veteran's own descriptions of functional impairment during flare-ups may be relied upon, and if not, why not All opinions must include complete explanation of rationale. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.