Citation Nr: 21041607 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 11-14 033 DATE: July 9, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent for status post cervical anterior fusion of C5-6 and discectomy for C6-7 disc protrusion (cervical spine disorder) is remanded. Entitlement to a rating in excess of 20 percent for cervical radiculopathy of the left upper extremity is remanded. Entitlement to a rating in excess of 20 percent for right upper extremity radiculopathy is remanded. Entitlement to a rating in excess of 10 percent for painful/tender residual scar associated with status post cervical anterior fusion is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1995 to January 1997 and March 1998 to July 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The procedural history of the case is detailed in the Introduction section of the April 2019 and February 2021 Board remands, which are herein incorporated by reference. During the pendency of the appeal, in an April 2021 rating decision, the agency of original jurisdiction (AOJ) granted service connection for right upper extremity radiculopathy with an evaluation of 20 percent effective March 24, 2021 and service connection for painful/tender residual scar with an evaluation of 10 percent effective March 24, 2021. The AOJ also increased the Veteran's rating for status post cervical anterior fusion C5-6 and discectomy for C6-7 disc protrusion to 30 percent effective August 1, 2008. As the issues of right upper extremity radiculopathy and scar are related and part/parcel of the issue of increased rating for the cervical spine, the Board has listed them herein and taken jurisdiction. The February 2021 Board remand explained that there had not been substantial compliance with the April 2019 remand directives and, therefore, another remand was required. Unfortunately, there has not been substantial compliance with the February 2021 Board remand and another remand is needed. See Stegall v. West, 11 Vet. App. 268 (1998). In part, the February 2021 Board remand directed an appropriate clinician review the May 2009 VA examination containing range of motion findings pertinent to the Veteran's spine disorder. The clinician was to provide an opinion as to (1) which point during range of motion testing the Veteran's pain began; and (2) any functional loss due to pain that was present at such time, to include during repetitive use. All losses of function due to pain were to be equated to additional degrees of limitation of motion. If the examiner could not provide the requested opinions without resorting to speculation, he/she should explain why an opinion could not be provided. Additionally, the clinician was to determine the nature and severity of the Veteran's service-connected cervical radiculopathy of the left upper extremity. The need for an additional examination was left to the discretion of the clinician selected to write the addendum opinion. The clinician was requested to review the July 2015 VA exam report. He was asked to provide a retrospective opinion regarding the functional effects encapsulated by the July 2015 VA examiner's remarks that repetitive use caused the Veteran to experience increased pain/stiffness/symptoms of radiculopathy. If the examiner could not provide the requested opinion without resorting to speculation, he/she was to explain why. In a February 2021 medical opinion (received March 2021) the VA examiner indicated he was unable to provide an answer with respect to any of the requested opinions. He indicated the Veteran would need a new physical exam to conclude the answer and there was a lack of sufficient information/evidence in the case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner. The Veteran underwent a cervical spine VA examination in March 2021. With respect to the request for a retrospective opinion regarding the July 2015 VA examination report, the March 2021 VA clinician indicated the functional impact was that the Veteran was unable to fully move his head and neck and all planes without experiencing a worsening of his neck pain symptoms. With respect to the requested opinion as to at which point in range of motion testing the Veteran's pain began during the May 2009 examination and what functional loss was present at such time, the March 2021 clinician indicated he reviewed the July 2015 VA exam. He noted the range of motion testing results from July 2015 and appears to have repeated the same opinion as was noted by the July 2015 VA examiner. He noted, "I am unable to state exact degree lost since that would be of mere speculation." Remand is warranted considering the clinician did not address the May 2009 examination as directed and did not provide an explanation for why he could not provide the requested opinion without resorting to speculation. The matters are REMANDED for the following action: Obtain an addendum opinion from a qualified clinician. The clinician should review the VA examination conducted in May 2009 containing range of motion findings pertinent to the Veteran's cervical spine disorder. With regard to the May 2009 examination, the clinician should provide an opinion as to (1) which point during range of motion testing the Veteran's pain began; and (2) any functional loss due to pain that was present at such time, to include during repetitive use. All losses of function due to pain were to be equated to additional degrees of limitation of motion. If the examiner cannot provide the requested opinions without resorting to speculation, he/she must explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge amongst the medical community at large, and not the insufficient knowledge of the individual examiner.) A rationale for any opinion offered should be provided. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli 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.