Citation Nr: 22011776 Decision Date: 03/02/22 Archive Date: 03/01/22 DOCKET NO. 06-23 586 DATE: March 2, 2022 REMANDED The issue of entitlement to an initial rating in excess of 10 percent prior to December 16, 2013, and in excess of 20 percent thereafter, for cervical spine spondylosis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1984 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in November 2013, November 2014, April 2016, March 2017, November 2017, September 2019, and January 2021. The Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ) in July 2013. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. However, the VLJ who conducted the July 2013 Board hearing is no longer employed by the Board. In November 2020, the Veteran and his representative were sent a letter notifying them that the VLJ who presided over the July 2013 hearing is no longer employed by the Board and offering another hearing before a different VLJ. The letter notified the Veteran that he had 30 days from the date of letter to respond and that if no response was received, the Board will assume the Veteran does not want another hearing and the Board will proceed accordingly. The Veteran did not respond to the letter. As such, the Board will consider the case on the evidence of record. While the Board regrets the additional delay, further development is necessary prior to the adjudication of the merits of the Veteran's claim. At the December 2013 VA examination, the Veteran reported that during flareups he had to turn his whole body, instead of his head. Similarly, at the December 2019 VA examination, the Veteran described extreme stiffness in his neck, requiring him to rotate his entire body to see while driving. At the March 2021 VA examination, when asked to describe functional loss in his own words, the Veteran stated, "Sometimes I just have to sit in the chair and put support on my neck." See March 2021 VA examination report. The Veteran was unable to perform repetitive use testing due to pain. The examiner estimated range of motion during repeated use over time and during flareups; however, the examiner did not discuss the evidence which served as the basis for his estimates. Id. Recently, in Chavis v. McDonough, 34 Vet. App. 1, (2021), the Court determined that that ankylosis can be met with evidence of the functional equivalent of ankylosis (i.e. functional immobility of the joint). The Board acknowledges that the VA examiners determined that there was no ankylosis of the spine. See December 2013, February 2015, June 2016, April 2017, December 2019, and March 2021 VA examinations. However, the VA examiners did not address whether the Veteran's functional loss is the functional equivalent of ankylosis. In light of Chavis, the Board finds that a VA examination is warranted to evaluate the nature and severity of the Veteran's cervical spine disability for the entire period on appeal and opine as to whether the Veteran's limitation of motion, including during repeated use and flareups, is the functional equivalent to ankylosis. Additionally, the Board notes that effective February 7, 2021, several changes to the diagnostic codes used for rating musculoskeletal disabilities were made, including the intervertebral disc syndrome of the spine. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020). The examination must consider the new rating criteria. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the current nature, extent, and severity of his cervical spine disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings must be reported in detail. The examination report must address the following: a.) The full range of motion of the Veteran's cervical spine in both active and passive motion, in weight-bearing and non-weight-bearing. Please specify range of motion measurements in all areas outlined above. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. b.) Describe any pain, weakened movement, excess fatigability, instability of station, and incoordination present. c.) State whether the examination is taking place during a period of flare-ups. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner is unable to opine without speculation, he or she should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). d.) State whether the Veteran's limitation of motion of the cervical spine, including during repeated use and flareups, is the functional equivalent of favorable ankylosis of the entire cervical spine, unfavorable ankylosis of the entire cervical spine, or unfavorable ankylosis of the entire spine. Please include a retrospective medical opinion regarding whether the Veteran's limitation of motion of the cervical spine, including during repeated use and flareups, was the functional equivalent of favorable ankylosis of the entire cervical spine, unfavorable ankylosis of the entire cervical spine, or unfavorable ankylosis of the entire spine at the prior April 2004, December 2013, February 2015, June 2016, April 2017, December 2019, and March 2021 VA examinations. In rendering these opinions, please acknowledge and consider the following contentions made by the Veteran: 1) at the December 2013 VA examination, the Veteran reported that during flareups he had to turn his whole body, instead of his head; 2) at the December 2019 VA examination, the Veteran described extreme stiffness in his neck, requiring him to rotate his entire body to see while driving; 3) at the March 2021 VA examination, the Veteran stated, "Sometimes I just have to sit in the chair and put support on my neck." e.) Identify any neurologic impairment related to the Veteran's cervical spine, to specifically include the nature and severity of his bilateral upper extremity radiculopathy. C. Samuelson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.