Citation Nr: 22013479 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 08-14 832 DATE: March 9, 2022 REMANDED Entitlement to a disability rating greater than 20 percent before March 23, 2021, for degenerative disc disease, cervical spine, is remanded. Entitlement to a disability rating greater than 30 percent beginning March 23, 2021, for degenerative disc disease, cervical spine, is remanded. Entitlement to a disability rating greater than 20 percent for degenerative disc disease, lumbar spine, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1979 to April 1989. The issue comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The November 2006 rating decision increased degenerative disc disease C6-7, from 10 percent disabling to 20 percent, effective September 01, 2005, and continued the 20 percent rating for chronic lumbar back strain. In April 2021, the RO increased the rating for the Veteran's neck disability to 30 percent disabling, effective March 23, 2021. The Veteran testified at a hearing before a Decision Review Officer (DRO) in March 2008 and at a Board hearing in March 2014 before a Veterans Law Judge (VLJ). As the VLJ who presided over the March 2014 Board hearing has since left the Board, the Veteran was afforded a second hearing before the Board. In October 2021, he and his spouse, J. B., testified before the undersigned VLJ. Copies of the transcripts are of record. The issues have been before the Board four times and remanded: August 2014, March 2017, February 2019, and December 2020. The most recent remand of December 2020 mandated that the RO provide the Veteran with examinations in compliance with VA statutes and regulations and obtain/associate with the claims file any private treatment records. In December 2021, the RO requested the Veteran provide any outstanding private treatment records. At the time of the issuance of the supplemental statement of the case (SSOC), in September 2020, the Veteran did not reply. (However, in November 2021, the Veteran provided an executed VA Form 21-4142a.) The VA treatment records were associated with the claims file. In this regard, there has been substantial compliance. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In March 2021, the Veteran was afforded VA back and neck examinations. As is explained below, the examinations are incomplete. Thus, there has not been substantial compliance with the remand directives. Id. 1. Entitlement to a disability rating greater than 20 percent before March 23, 2021, for degenerative disc disease, cervical spine, is remanded. 2. Entitlement to a disability rating greater than 30 percent beginning March 23, 2021, for degenerative disc disease, cervical spine, is remanded. 3. Entitlement to a disability rating greater than 20 percent for degenerative disc disease, lumbar spine, is remanded. The Veteran has continuously contended that his back and neck disabilities with their neurological manifestations are worse than currently assigned. Throughout the appeal period, the Veteran has been afforded numerous inadequate VA examinations. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Specifically, the examiners failed to comply with the standards outlined in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Most recently, the March 2021 examiners addressed the range of motion on active motion, passive motion, weight-bearing, and non-weight-bearing, in degrees; however, no such measured or estimated range of motion was noted for flare-ups. Albeit the Veteran reported no flare-ups but a functional loss/impairment. Notwithstanding, the examiners did not solicit information regarding the frequency, duration, characteristics, severity, or functional loss due to flare-ups by alternative means," even after listening to the Veteran's complete history, current complaints, and reviewing of the claims file. Sharp, 29 Vet. App. 26 (2017). Throughout the appeal period, the evidentiary record reflects complaints of flare-ups for the thoracolumbar and cervical spine, bladder frequency, numbness, tingling, and weakness in the arms/hands and legs, possibly due to cervical and lumbar spine disability. As there is no adequate examination of the record, the issues are remanded. Additionally, the Veteran is advised that failure to report to any scheduled examinations without good cause may result in denial of his claims. 38 C.F.R. § 3.655 (b). Accordingly, the issues are REMANDED for the following action: 1. Schedule the Veteran for an examination with a suitable clinician to provide a VA examination to determine the current severity of his service-connected cervical and lumbar spine disabilities. Although an independent review of the claims file is required, the Board calls the clinician's attention to: a. Numerous lay statements of bladder frequency, numbness, tingling, and weakness in the arms/hands and legs. b. April 2012 VA cervical spine examination indicating flare-ups. c. November 2017 VA lumbar spine examination indicating flare-ups. d. October 2021 Board hearing testimony. Full range of motion testing must be performed where possible. The joint(s) involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. 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 the basis for this decision. If the Veteran reports flare-up episodes, the examiner must assess any additional functional loss during flare-ups. If an assessment is not possible without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner must elicit relevant information as to the Veteran's flare-ups or ask him to describe the additional functional loss, if any, he has during flare-ups and then estimate the Veteran's functional loss due to flare-ups based on all the evidence of record, including the Veteran's lay information, or explain why he or she cannot do so. Sharp, 29 Vet. App. 26 (2017). If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. It is not sufficient to abstain from providing an opinion because the Veteran is not examined after repetitive use over time or not examined during a flare-up. The examiner must provide all findings, along with a complete rationale for any opinions provided. 2. Obtain a retrospective opinion to determine the severity of the Veteran's service-connected cervical spine disability and neurological manifestations therefrom, for the period before March 23, 2021. The examiner is required to determine the severity of the Veteran's cervical spine symptoms during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment during flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide specific measurements without speculation, the examiner must state the reason why. 3. Obtain a retrospective opinion to determine the severity of the Veteran's service-connected lumbar spine disability and neurological manifestations therefrom. The examiner is required to determine the severity of the Veteran's lumbar spine symptoms during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment during flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide specific measurements without speculation, the examiner must state the reason why. 4. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 5. Then, adjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case (SSOC) and allow the applicable time for response. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.