Citation Nr: 22013958 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-61 806 DATE: March 11, 2022 REMANDED Entitlement to a rating in excess of 20 percent for degenerative arthritis of the cervical spine is remanded. Entitlement to a rating in excess of 20 percent for right upper extremity radiculopathy is remanded. REASONS AND BASES FOR REMAND The Veteran served on active duty from February 1973 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). In October 2021, this appeal was remanded for additional development. In a November 2021 rating decision, the RO granted service connection for right upper extremity radiculopathy, rated 20 percent, effective November 5, 2021. As entitlement to separate compensable ratings for radiculopathy is part and parcel of the increased rating claim for the Veteran's cervical spine disability, the Board will consider the entire appeal period to determine if entitlement to separate compensable ratings, or an increased rating for that currently assigned, is warranted at any time during the rating period. 38 C.F.R. § 4.71, General Rating Formula, Note 1. The Veteran has another active appeal pending at the Board regarding his claim for increased ratings for a lumbar spine disability and lumbar spine scar. However, as a Board hearing was held on those issues by a VLJ other than the undersigned, those issues will be the addressed by that VLJ in a separate Board decision. 1. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the cervical spine is remanded. The Board previously remanded this matter in October 2021 to obtain a VA examination that complied with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016). Although another VA examination was conducted in November 2021, that examiner did not identify the exact point where pain begins during range of motion testing, which is crucial in determining whether an increased rating is warranted for the disability on appeal. The November 2021 VA examiner also did not provide range of motion measurements regarding the Veteran's reported flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Thus, remand is necessary for a new VA spine examination. 2. Entitlement to a rating in excess of 20 percent for right upper extremity radiculopathy is remanded. The issue of entitlement to a rating in excess of 20 percent for right upper extremity radiculopathy is inextricably intertwined with the Veteran's claim for an increased rating for his cervical spine disability, which is being remanded; accordingly, this issue must be remanded as well. The matters are REMANDED for the following action: 1. Obtain, if possible, records of relevant private evaluations and treatment the Veteran has received that have not previously been obtained. The Veteran must assist in the matter by identifying any private healthcare providers and by submitting releases for VA to obtain any private records identified. 2. Obtain copies of VA treatment records from October 2021 to the present. 3. After the above development is completed, arrange for an orthopedic examination (to include telehealth interview if necessary) of the Veteran to assess the current severity of his service-connected cervical spine disability. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. Range of motion measurements should be included for active and passive motion in both weight-bearing and nonweight-bearing circumstances, including for the opposite undamaged joint, if applicable. THE BOARD EMPHASIZES HERE THAT IF PAIN IS NOTED, the EXACT POINT IN THE RANGE OF MOTION WHERE PAIN STARTS SHOULD BE CLEARLY NOTED. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. The examiner should also identify any neurological findings in the left and right upper extremities related to the service-connected cervical spine disability for the entire appeal period (August 2016), and fully describe the extent and severity of those symptoms. Specifically, the examiner should indicate, to the extent possible, the earliest date radiculopathy or neuropathy of the right and left upper extremities was shown, identify the specific nerve(s) involved, to include whether there is incomplete or complete paralysis, and offer an opinion as to the degree of impairment of each nerve (that is, whether it is mild, moderate, moderately severe, or severe in nature). In addressing this last request concerning neurological findings, the examiner should specifically comment on a June 2017 diagnosis of cervical radiculopathy following the Veteran's reports of increasing arm numbness (beginning in October 2016), the July 2017 MRI that revealed mild left AND moderate right neuroforaminal narrowing from C3-C4 to C5-C6, and the Veteran's doctor's suspicion that the Veteran's neuroforaminal narrowing was the cause of his arm numbness. (CONTINUED ON NEXT PAGE) 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.