Citation Nr: 22012164 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 15-11 746 DATE: March 2, 2022 REMANDED Entitlement to increased ratings for degenerative disc disease of the cervical spine, currently rated as noncompensable prior to July 10, 2012; at 10 percent from July 10, 2012, to December 29, 2016; at 20 percent from December 30, 2016, to December 12, 2021; and at 30 percent from December 13, 2021, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from September 1974 to June 1995. In October 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this case in November 2019 and October 2021. The Veteran's representative raised the issue of entitlement to a TDIU in a February 2022 brief. The issue is properly before the Board at this time as part of the appeal for increased ratings for the service-connected cervical spine disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to increased ratings for degenerative disc disease of the cervical spine is remanded. 2. Entitlement to a TDIU is remanded. The October 2021 Board remand found that a December 2016 VA examination was not adequate for decision-making purposes because the examiner stated that the Veteran has flare-ups in his cervical spine symptoms that significantly limit his functional ability, but did not adequately explain why an estimate of loss of motion during flare-ups could not be provided. The remand therefore directed that the Veteran be scheduled for an examination to determine the current severity of his service-connected cervical spine disability and, to the extent possible, obtain an estimate of the additional impairment due to flare-ups at the time of the December 2016 VA examination. Pursuant to the remand, the Veteran was provided a VA neck conditions examination in December 2021. Although that examination provides adequate information as to the current severity of the Veteran's service-connected cervical spine disability, it does not include the requested estimate of the additional impairment due to flare-ups at the time of the December 2016 VA examination or an adequate explanation as to why such an estimate cannot be provided. The October 2021 remand directives therefore were not substantially completed, and the issue of entitlement to increased ratings for the service-connected cervical spine disability must be remand so that the requested estimate of functional loss during flare-ups may be obtained. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board notes that an October 2012 VA examiner also did not adequately describe how the Veteran's reported flare-ups affect his functioning. Therefore, the opinion obtained on remand must also address the likely impairment due to flare-ups at the time of the October 2012 VA examination. Because a decision on the remanded issue of entitlement to increased ratings for degenerative disc disease of the cervical spine could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to a TDIU is required. The matters are REMANDED for the following action: Obtain an opinion from an appropriate clinician regarding the severity of the Veteran's service-connected degenerative disc disease of the cervical spine at the time of October 2012 and December 2016 VA examinations. The examiner is asked to opine as to whether the Veteran had additional functional loss during flare-ups at the time of those examinations. The opinion should be based on the evidence of record, to include the Veteran's subjective reports at the VA examinations and in the medical treatment records, and should be stated in terms of degrees of range of motion, if possible and applicable. The examiner should note that an examination need not be conducted during a flare-up for the functional impairment experienced in such instances to be taken into account. Caselaw and VA guidelines anticipate that examiners will offer opinions on flare-ups based on estimates derived from information procured from relevant sources, including the lay statements of the veteran being examined. Examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment during flare-ups and on repetitive use over time from the veterans themselves. If the examiner determines that it is not possible to provide an opinion without speculation even in view of such information, the examiner must provide an explanation of why that is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge, a deficiency in the record, or a deficiency in the examiner's knowledge. If additional information would allow for an opinion, the examiner should identify the information needed. It is not sufficient to provide a general statement, such as that made by the December 2016 VA examiner, to the effect that there is no basis to estimate additional loss of function or motion during a flare-up or that direct observation of functioning during a flare-up is required for such an estimate. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.