Citation Nr: 22015903
Decision Date: 03/20/22	Archive Date: 03/20/22

DOCKET NO. 16-53 271A
DATE: March 20, 2022

REMANDED

A rating in excess of 10 percent for degenerative arthritis of the lumbar spine.

A rating in excess of 20 percent for degenerative arthritis of the cervical spine with degenerative disc disease (DDD).

REASONS FOR REMAND

The Veteran testified at a June 2020 hearing before the undersigned Veterans Law Judge.  In January 2021, the Board denied the appeal for a higher rating for a lumbar spine disorder and granted a 20 percent rating for a cervical spine disorder.  The Veteran appealed both claims to the Veterans Claims Court.  In November 2021, the Court Clerk granted a Joint Motion for Remand (JMR) which vacated the Board's decision.  

Pursuant to the JMR, examinations are required to consider January 2020 private acupuncture therapy treatment notes which indicated that the Veteran used a cane to get out of bed and had cervical and thoracic pain with left-sided radiculopathy, and to estimate ranges of motion during flare-ups.  As such, in accordance with the JMR, further development is required in order to determine the current severity of all impairments resulting from the lumbar and cervical spine disorders. 

The matters are REMANDED for the following actions:

1. Identify and obtain all pertinent, outstanding VA and private treatment records not currently of record and associate them with the claims file.

2. Schedule the Veteran for examinations to determine the current severity of all impairments resulting from his lumbar and cervical spine disabilities.  The claims file should be made available to the examiner.  All indicated tests and studies should be performed.  

The examiner should consider the January 2020 acupuncture therapy treatment notes and specifically address the impact of functional loss during flare-ups and after repeated use over time on the ranges of motion of the Veteran's lumbar and cervical spine.  

If the examinations are not conducted during a flare or after repeated use over a period of time, estimated ranges of motion should be provided based on the Veteran's statements and observed activities. 

If the examiner cannot provide estimated ranges of motion for the Veteran's lumbar and cervical spine during flareups and/or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, by a deficiency in the record, or by the examiner lacking the needed knowledge or training.

 

The examiner should otherwise provide all information required for rating purposes. 

 

 

L. HOWELL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Spigelman, 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.