Citation Nr: 22013431 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 12-97 896A DATE: March 9, 2022 REMANDED Prior to September 9, 2018, entitlement to a rating in excess of 20 percent for the service-connected cervical spondylosis disability is REMANDED. REASONS FOR REMAND The Veteran served honorably in the United States Army from April 1983 to April 2003. Upon review of the record, the Board concludes that further evidentiary development is necessary. A remand is necessary to ensure VA provides the Veteran with the appropriate assistance in developing her claim prior to final adjudication. Prior to September 9, 2018, entitlement to a rating in excess of 20 percent for the service-connected cervical spondylosis disability is remanded. In December 2020, the Board addressed the Veteran's claim for an evaluation in excess of 20 percent for the cervical spine disability prior to September 9, 2018. At that time, the Board concluded that, from May 1, 2003 to September 9, 2018, the criteria for a 20 percent rating, but not greater, for the service-connected cervical spine disability had been met. In December 2021, the Court of Appeals for Veterans' Claims (Court) considered the issue listed on the title page. At that time, the Court granted a joint motion for partial remand (JMPR), which vacated and remanded the Board's decision on the rating for the cervical spondylosis disability prior to September 9, 2018. The JMPR noted that, where possible, testing for pain should be done to determine the extent of any such functional loss. See 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158, 168-69 (2016). The JMPR also noted that if an examiner cannot opine as to functional loss during flare-ups and with repeated use without speculating, the examiner must explain why. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The JMPR observed that the Veteran's January 2010 VA examination pre-dated both the decisions in Correia and Sharp. The JMPR relayed that, if possible, the Board should attempt to obtain a VA examination report that addresses the Veteran's symptoms in light of Correia and Sharp. The JMPR relayed that the Board could determine that a retrospective medical opinion was necessary to address the Veteran's identified and/or recorded cervical spine symptoms during the claim period, prior to September 9, 2018. The Board has deliberately reviewed the Veteran's claims file. At this time, in light of the JMPR, reasoning, and guidance, the Board concludes that a remand is warranted. Consequently, the matter is REMANDED to the agency of original jurisdiction (AOJ) for the following action(s): 1. Contact the Veteran, and, with her assistance, identify any outstanding records of pertinent medical treatment from VA, Federal, or private health care providers. With the Veteran's assistance obtain copies of any pertinent records and add them to the claims file. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159 (c) (2020). If VA attempts to obtain any outstanding records that are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Thereafter, the AOJ should obtain a retrospective examination report from an appropriate physician. After deliberate review of the lay and medical evidence in the claims file, the physician must address the severity of the Veteran's service-connected cervical spine spondylosis during the claim period: May 1, 2003 to September 9, 2018. If possible, the examiner should identify the effective range of motion in the Veteran's cervical spine during the claim period, presenting the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by identifying separate sets of the range of motion results for both active and passive motion, and in weight bearing and non-weight bearing. The examiner's report should address any objective evidence of painful motion. It is not sufficient merely to indicate whether or not pain was present during one of the range-of-motion tests. If any of the requested findings cannot be identified, the examiner should provide an explanation for why such could not be obtained. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran described flare-ups during the claim period) and, to the extent possible, provide an assessment of the functional impairment after repeated use over time. If feasible, the examiner should identify the additional functional impairment on repeated use over time or during flare-ups in terms of the degree of additional range of motion loss. The examiner should identify the frequency and duration of any flare-ups identified within the claims file during the claim period, May 1, 2003 to September 9, 2018. If the examiner determines that he or she cannot determine whether there would be additional limits on functional ability on repeated use or during flare-ups, or if he or she indicates that the extent of those additional limitations on functional ability cannot be quantified in terms of additional range of motion loss, the examiner should provide a thorough explanation for his or her inability to provide the requested opinions. The examiner must review this Board remand, the Court's JMPR, and the pertinent medical evidence in the claims file. The examiner's review of same must be noted. 3. After completion of above, the AOJ should return the increased-rating claim to the Board for additional appellate consideration. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.