Citation Nr: 21042823 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 06-30 257 DATE: July 13, 2021 ORDER Entitlement to a rating in excess of 20 percent prior to September 12, 2011, for cervical spine disability, with a temporary total rating assigned from July 9, 2003 through October 31, 2003, is remanded. Entitlement to a rating in excess of 30 percent on and after September 12, 2011, for cervical spine disability, with a temporary total rating assigned from April 13, 2012 through July 31, 2012, is remanded. Entitlement to an initial rating in excess of 10 percent prior to December 15, 2015, for right upper extremity radiculopathy with carpal tunnel syndrome is remanded. Entitlement to a rating in excess of 60 percent on and after December 15, 2015, for right upper extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 20 percent prior to December 15, 2015, for left upper extremity radiculopathy is remanded. Entitlement to a rating in excess of 70 percent on and after December 15, 2015, for left upper extremity radiculopathy is remanded. Entitlement to a total rating based in individual unemployability due to service-connected disability (TDIU), possibly limited to the period prior to December 15, 2015, is remanded. INTRODUCTION The Veteran served on active duty from august 1976 to July 1980 and from July 1984 to September 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2003 and October 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This appeal was before the Board in August, October 2012, September 2017, March 2018, July 2020. In November 2020, the RO issued supplemental statement of the case before remitting the appeal to the Board. In March 2011, the Veteran testified at a hearing before a Veterans Law Judge who is no longer employed at the Board. The Veteran was provided the opportunity testify at a second hearing. In January 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. Transcripts of both hearings have been associated with the claims file. REASONS FOR REMAND In July 2020, the Board remanded the Veteran's claim of entitlement to TDIU. For reasons unknown to the Board, the RO has captioned the claim as entitlement to TDIU prior to December 15, 2015, suggesting that TDIU has been granted on and after that date. However, the Board is unable to locate any rating decision, statement of the case, supplemental statement of the case, or other dispositional document wherein the Veteran was granted TDIU on and after December 15, 2015. Clarification is required. In March 2018, the Board remanded the Veteran's claim in order to obtain supplemental opinions regarding her service-connected cervical spine disability. Specifically, the Board requested that a VA examiner consider the question of whether fusion of cervical vertebrae is functionally the same as ankylosis. In April 2018, a VA examiner provided the following opinion : "Ankylosis is defined as 'abnormal stiffening and immobility of a joint due to fusion of the bones.' [The Veteran's] neck has mobility, thus no ankylosis." This opinion does not address the functionality of ankylosis versus surgical fusion, as was requested by the Board. Further, "fusion of the bones" is in the definition of ankylosis, but it is distinguished from surgical fusion without any explanation by the examiner. Prior to the July 2020 Board remand, the Veteran's treatment records consistently demonstrated that she underwent spinal fusion at C2-T3 in April 2012, but also that she underwent spinal fusion at C3-C7 in April 2012. However, according to a February 2020 VA treatment report, the Veteran's previous medical history includes "neck surgery x 2" and "spinal fusion x 5," suggesting that the Veteran has either undergone 2 neck surgeries and 5 surgical spinal fusion procedures or 2 neck surgeries during which 5 cervical vertebrae were surgical fused. Clarification is warranted. In either case, there is sufficient evidence to demonstrate surgical "fusion of the bones." Finally, the most recent VA examinations occurred in December 2015. Although a supplemental opinion was dated in April 2018, no clinical findings are included therein. The Board finds that the December 2015 examinations are too remote, and the evidence of record is other insufficient, to evaluate the current severity of the Veteran's disabilities. As such, a remand to provide the Veteran additional VA examinations is warranted. The matters are REMANDED for the following action: 1. Provide the Veteran with clarification as to whether TDIU has been granted on and after December 15, 2015. Associate this clarification with the claims. 2. Provide the Veteran with notice of the applicable regulation amendments that are effective February 7, 2021. 3. Contact the Veteran and afford her the opportunity to identify or submit any additional pertinent evidence in support of her claims. Based on her response, attempt to procure copies of all records which have not previously been obtained from identified treatment sources. 4. Schedule the Veteran for VA examinations to determine the current level of severity of her service-connected cervical spine disability, as well as her right and left upper extremity radiculopathy. Ensure that the examiner provides all information required for rating purposes. With respect to the Veteran's cervical spine, request that the examiner address the following questions: How many neck/cervical spine surgical procedures has the Veteran undergone? What is the nature of any such surgery? How many of the Veteran's cervical spine vertebrae have been surgically fused? What is the difference between surgical fusion and ankylosis, specifically, but not limited to, the resulting functional impairment? If surgical fusion is functionally similar to ankylosis, is the Veteran's cervical spine in favorable or unfavorable position? The examiner must provide a thorough rationale for any rendered opinion. 5. Re-adjudicate the claims on appeal, to include any portion of the TDIU claim that remains denied, if any. Issue a supplemental statement of the case to the Veteran and her representative. After they have had an opportunity to respond, remit the appeal to the Board for further appellate review. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sean G. Pflugner, 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.