Citation Nr: 22011863 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 17-21 244 DATE: March 2, 2022 REMANDED Entitlement to a rating in excess of 30 percent for a cervical spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1990 to June 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In March 2020, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. In May 2020 and July 2021, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. 1. Entitlement to a rating in excess of 30 percent for a cervical spine disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim for entitlement to an increased rating for a cervical spine disability. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In its July 2021 remand, the Board requested a retrospective opinion with regard to the severity of the service-connected cervical spine disability, prior to December 29, 2020. Subsequently, in August 2021, a VA examiner opined that the Veteran's degenerative arthritis of the cervical spine with intervertebral disc syndrome can have severely limited function and range of motion (ROM) during a flare-up, equivalent to ankylosis. The examiner stated that degenerative arthritis of the cervical spine with intervertebral disc syndrome was at least as likely as not (50 percent or greater probability) manifested as the equivalent of ankylosis with consideration of limiting factors such as weakened motion, painful motion, fatigability, or on a flare-up, prior to December 29, 2020. The Veteran was not seen to have a cervical ankylosis condition. During flare-ups, the Veteran's cervical spine had similar symptoms as to ankylosis. The examiner further opined that it was at least as likely as not (50 percent or greater probability) that the Veteran's flare-ups limited cervical flexion to less than 30 degrees; less than 15 degrees; or caused a limitation tantamount to ankylosis. The examiner stated that the Veteran can have severe daily flare-ups lasting three to four hours causing limited flexion to less than 30 or less than 15 degrees prior to December 29, 2020. The Veteran triggered neck pain flare-ups with little movement and reported no relief of pain. In making the finding that the cervical spine disability was equivalent to ankylosis at times, the examiner did not specify whether the Veteran's cervical spine disability resulted in favorable or unfavorable ankylosis or the functional equivalent. Under the General Rating Formulae for Diseases and Injuries of the Spine, a 30 percent rating is assigned for forward flexion of the cervical spine at 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. §4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). As the Veteran's cervical spine condition is rated 30 percent, the question of whether the Veteran exhibits a disability equivalent to unfavorable or favorable ankylosis is highly significant. Therefore, the Board finds that an addendum opinion must be obtained to determine whether the Veteran has favorable or unfavorable ankylosis, or its functional equivalent, before the Board can decide whether the Veteran is entitled to a rating in excess of 30 percent. The matters are REMANDED for the following action: 1. If possible, return the claims file to the examiner who conducted the August 2021 VA cervical spine examination for an addendum opinion. If that examiner is unavailable, schedule the Veteran for an examination with a different examiner. The examiner should determine whether the Veteran's cervical spine disability which can be equivalent to ankylosis is equivalent to favorable or unfavorable ankylosis. The examiner should also determine if the spine disability equivalent to ankylosis is of the entire cervical spine, or a portion of the cervical spine, or of some larger portion of the spine. A complete rationale should be provided. If the examiner finds that examination is necessary to provide the necessary information, schedule the Veteran for an examination. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.