Citation Nr: 22006256 Decision Date: 02/03/22 Archive Date: 02/03/22 DOCKET NO. 15-32 716 DATE: February 3, 2022 REMANDED Entitlement to an initial rating in excess of 20 percent for cervical spine disability is remanded. REASONS FOR REMAND The Veteran served in the United States Army on active duty from December 1981 to January 2002. The issue comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2019. A transcript of the hearing has been included with the record. In an August 2021 rating decision, the RO granted an increased initial rating of 20 percent for the Veteran's cervical spine disability, effective August 31, 2010. As the full benefit was not granted, the Veteran's claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board remanded the above claim in October 2021 to provide a VA medical opinion addressing the Veteran's radicular symptoms associated with the Veteran's cervical spine disability. While the Board regrets further delay, another remand is necessary to provide the Veteran with an adequate medical opinion, and to ensure substantial compliance with the October 2021 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an initial rating in excess of 20 percent for cervical spine disability is remanded. The Veteran contends that his symptoms of his service-connected cervical spine condition warrant an increased disability evaluation. The October 2021 Board remand requested that an examiner provide a medical opinion addressing the Veteran's cervical spine disability and associated objective neurologic abnormalities throughout the period on appeal. Notably, the October 2021 Board remand identified the Veteran's neurologic abnormalities, including, but not limited to, radiating pain, pressure, numbness, and paresthesias, affecting the Veteran's upper extremities, reported in the Veteran's November 2010 VA examination and December 2011 VA medical treatment records. The Veteran underwent a VA cervical spine examination in November 2021. The VA examination noted the Veteran's diagnosis of cervical strain. The Veteran denied pain irradiation and complained of symptoms of pain, described as pressure like pain sensation. The VA examiner reported no neurologic abnormalities, to include radicular pain or other symptoms due to radiculopathy. The VA examiner stated that there was no objective evidence of cervical radiculopathy. The VA examiner concluded that there was no medical literature to support the claim that cervical spine strain can cause cervical radiculopathy. Here, the November 2021 VA examination failed to address the Veteran's neurologic abnormalities reported in the Veteran's November 2010 VA examination and December 2011 VA medical treatment records identified in the Board's October 2021 remand. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Id. Further, the November 2021 VA examination did not account for the Veteran's diagnosis of multilevel degenerative disc disease of the C4-C5 to C6-C7 vertebrae, provided in the Veteran's November 2019 VA examination. As the November 2021 VA examination failed to properly account for the evidence of record indicating chronicity of the cervical spine condition with bilateral upper extremity radiculopathy during the pendency of the Veteran's appeal, remand is required to provide an addendum medical opinion addressing the severity of the Veteran's cervical spine condition and reported neurologic abnormalities, in substantial compliance with the October 2021 Board remand. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); see also Dyment v. West, 13 Vet. App. 141, 147 (1999). The matters are REMANDED for the following action: Obtain a medical opinion, preferably from the VA examiner who provided the November 2021 examination, regarding the Veteran's cervical spine disorder, to include symptoms of radiculopathy and neurologic abnormalities, or, if not available, another appropriately qualified VA medical professional. If the clinician determines that an examination is needed to provide the requested opinion, then such examination should be scheduled and may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The claims file should be reviewed in conjunction with the examination. A copy of this remand should be made available to the examiner. The VA examiner must address the Veteran's objective neurologic abnormalities associated with his cervical spine disorder, including, but not limited to, radiating pain, pressure, numbness, and paresthesias, affecting the Veteran's upper extremities. For the purposes of this examination, the examiner must provide a medical opinion as to the Veteran's neurological symptoms found in the November 2010 VA examination and December 2011 VA medical treatment records as they relate to the Veteran's current cervical spine disability. Further, the VA examiner must address the Veteran's diagnosis of multilevel degenerative disc disease of the cervical spine, as recorded in the November 2019 VA examination, as it related to the Veteran's neurologic abnormalities noted within the evidence of record during the period on appeal. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the appropriate rating criteria. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.