Citation Nr: 22014982 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 15-31 361A DATE: March 15, 2022 ORDER Entitlement to secondary service connection for cervical radiculopathy is granted. REMANDED Entitlement to a rating in excess of 20 percent for service-connected cervical strain is remanded. FINDING OF FACT The Veteran's currently diagnosed radiculopathy is proximately due to his service-connected cervical strain disability. CONCLUSION OF LAW The criteria for service connection for radiculopathy as secondary to service-connected cervical strain disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service from September 1995 to April 1999. This matter comes before the Board of Veterans' Appeals (Board) from a July 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a hearing was held in November 2018 before a Veterans Law Judge that has since retired. A transcript of that hearing is of record. The Veteran was notified by letter in January 2022 that the VLJ who conducted the November 2018 hearing is no longer employed by the Board and thus was offered the opportunity to have another hearing before a member of the Board. The Veteran responded in February 2022 indicating that he does not wish to appear at another Board hearing, and therefore the Board will proceed accordingly. Secondary Service Connection Secondary service connection requires evidence of: (1) a current disability; (2) a service-connected disability; and (3) a causal relationship between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement to secondary service connection for cervical radiculopathy As to the first element of secondary service connection, the Veteran must show a current disability. The Veteran submitted private treatment records indicating that he suffers radiculopathy, and that said radiculopathy stems from his service-connected cervical strain disability. See November 9, 2020 private treatment record. Here, the Board finds that all three elements of secondary service connection have been met, as he has a current diagnosis of radiculopathy that has been medically associated with his service-connected cervical strain disability. Said findings are at least in equipoise with the May 2021 VA examiner's opinion dismissing the Veteran's symptoms of radiating pain to the upper extremities, tingling, numbness and the perception of weakened grip as mere unsubstantiated subjective complaints. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for radiculopathy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for service-connected cervical strain is remanded. Upon review of the May 2021 VA examiner's medical opinion, the VA examiner opined that the Veteran's prior reported flare-ups are considered his daily pain pattern, and therefore range of motion (ROM) measurements were not provided as requested in the Board's February 2021 remand directives. Upon review of the record, the Board finds the May 2021 VA examiner's opinion to be inadequate to the extent that the record clearly indicates that the Veteran has alleged worsening symptoms during a flare-up to the extent of preventing him from moving his neck at all during one. See October 2016 Statement in Support of Claim. Said statements, of which the Veteran is competent to report, seemingly fall outside of what the May 2021 VA examiner described as being the Veteran's daily pain pattern, and therefore the Board finds that a Stegall violation has occurred to the extent that range of motion measurements were not provided for the period on appeal as requested. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). As such, on remand, the Veteran should be afforded a new VA examination to assess the current severity level of his service-connected cervical strain disability for the period on appeal in consideration of his report(s) of worsening symptomatology during flare-ups. See id.; July 2014 VA examination report; April 2013 VA examination report. The matters are REMANDED for the following action: 1. Obtain an addendum regarding the current severity level of the Veteran's service-connected cervical strain disability, to include his stated flare ups. If an additional examination is deemed necessary, such should be provided. Upon review of the record, to include this remand, the VA examiner is requested to: a. Estimate the reduction in range of motion due to flare-ups. Specifically, the Veteran alleges that during a flare-up he is unable to move his neck at all. See VBMS, document titled "VA 646 Statement of Accredited Representative in Appealed Case," receipt dated October 28, 2016; document titled "C&P Exam," receipt dated July 3, 2014; document titled "VA Examination," receipt dated April 10, 2013. b. Render an opinion as to whether such flare ups as described by the Veteran are consistent with the nature and severity of his neck disability. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.R. Fey, Associate 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.