Citation Nr: 22016397 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 14-12 345 DATE: March 22, 2022 REMANDED Entitlement to an initial rating in excess of 20 percent prior to January 8, 2020, for a cervical spine disability is remanded. Entitlement to an effective date earlier than January 2, 2019, for the grant of service connection for left and right upper extremity cervical radiculopathy is remanded. Entitlement to an initial rating in excess of 30 percent for the left upper extremity cervical radiculopathy is remanded. Entitlement to an initial rating in excess of 40 percent for the right upper extremity cervical radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1981 to October 1981, from March 1982 to March 1986, and from January 2011 to February 2012, and he had additional service in the reserves. In January 2018, the Board issued a decision in relevant part denying an initial rating higher than 10 percent for the Veteran's cervical spine disability. In response, he appealed that decision to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In November 2018, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the Board's decision denying this claim and remanding it back to the Board for further development and readjudication. In May 2019, the Board in turn remanded this claim back to the local Regional Office (RO), so back to the Agency of Original Jurisdiction (AOJ), to comply with the terms of the JMPR. In an August 2020 rating decision subsequently issued, on remand, the RO granted a higher 30 percent rating for the cervical spine disability but only retroactively effective from January 8, 2020, however, also granted service connection for cervical radiculopathy of the right upper extremity and assigned an initial 40 percent rating and of the left upper extremity and assigned an initial 30 percent rating both also retroactively effective from January 8, 2020. The Veteran continued to appeal for even higher ratings. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating, but less than maximum possible rating, does not abrogate a pending appeal). In an October 2020 decision since issued, the Board, in pertinent part, granted a higher 20 percent initial rating for the Veteran's cervical spine disability and an earlier effective date of January 2, 2019, for service connection for his bilateral (left and right) upper extremity cervical radiculopathy. However, the Board conversely denied a rating higher than 30 percent for the cervical spine disability since January 8, 2020, and ratings higher than 30 and 40 percent, respectively, for the left and right upper extremity cervical radiculopathy. In response, the Veteran again appealed to the Court (CAVC). In since granting another JMPR in November 2021, the Court vacated the portion of the Board's more recent decision denying (1) an initial rating higher than 20 percent for the cervical spine disability prior to January 8, 2020, (2) an effective date earlier than January 2, 2019, for the awards of service connection for the left and right upper extremity cervical radiculopathy, (3) an initial rating higher than 30 percent for the left upper extremity cervical radiculopathy, and (4) an initial rating higher than 40 percent for the right upper extremity cervical radiculopathy. The Court again remanded these claims back to the Board for still more development and then readjudication in compliance with directives specified. And, to comply with the Court-granted JMPR, the Board again is in turn remanding these claims back to the RO (AOJ) in furtherance of this. 1. Entitlement to an initial rating higher than 20 percent for the cervical spine disability prior to January 8, 2020, is remanded. 2. Entitlement to an initial rating higher than 30 percent for the left upper extremity cervical radiculopathy is remanded. 3. Entitlement to an initial rating higher than 40 percent for the right upper extremity cervical radiculopathy is remanded. In the November 2021 JMPR, the parties agreed that partial vacatur and remand was required because the Board had failed to provide an adequate statement of reasons and bases. The parties first agreed that, in denying the Veteran's claim for an initial rating greater than 20 percent for his cervical spine disability meaning prior to him receiving a higher 30 percent rating as of January 8, 2020, the Board had failed to consider evidence suggesting this disability had worsened prior to that delimiting date. The JMPR pointed out that a December 2018 MRI showed severe stenosis and multiple levels of degenerative disc disease (DDD). Additionally, a January 2019 MRI showed moderate-to-severe stenosis and multiple levels of DDD. As such, the JMPR instructs the Board to reexamine the evidence and consider whether a "retrospective" medical opinion is required to evaluate the Veteran's cervical spine disability for this period at issue prior to January 8, 2020, also the associated left and right upper extremity cervical radiculopathy prior to January 2, 2019. Chotta v. Peake, 22 Vet. App. 80 (2008). For this reason, the Board is obtaining this additional medical comment before readjudicating these claims. The parties also agreed that the Board had failed to adequately define the terms used in the rating criteria for Diagnostic Code (DC) 8513 when evaluating the associated bilateral upper extremity radiculopathy. More specifically, the Board did not define the terms "mild," "moderate" and "severe" as referenced in 38 C.F.R. § 4.124A, DC 8513. While an examiner's use of these descriptive terms is not necessarily dispositive of the appropriate rating, it is a factor to be considered in making this determination. That is, rather than applying a mechanical formula, the Board must evaluate all the evidence so that its decisions are "equitable and just." See 38 C.F.R. §§ 4.2, 4.6. 4. Entitlement to an effective date earlier than January 2, 2019, for the grant of service connection for the bilateral (left and right) upper extremity cervical radiculopathy is remanded. Because the retrospective medical opinion being obtained and a decision on the claims being further developed could in turn significantly impact this claim, the claims are "inextricably intertwined". See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). Thus, the Board must defer readjudicating this claim pending completion of the additional development being directed concerning the other claims that might affect its disposition. Accordingly, these claims are REMANDED for the following action: 1. Obtain a "retrospective" medical opinion, in hindsight, addressing the severity of the Veteran's cervical spine disability prior to January 8, 2020, and his associated bilateral (left and right) upper extremity cervical radiculopathy prior to January 2, 2019. The Veteran need not be scheduled for another VA medical examination unless needed to provide this additional medical comment. The claims file, including a complete copy of this remand and the MRIs in December 2018 and January 2019, must be made available to the designated clinician for consideration of relevant history concerning these disabilities. If the examiner uses descriptive terms in describing the severity of these disabilities (e.g., mild, moderate, severe, or something in between such as moderately severe, etc.), please also discuss what this means in relation to or in terms of the requirements of the applicable Diagnostic Codes, including DC 8513. Rationale for all opinions is essential, regardless of whether favorable or conversely unfavorable to the claims, preferably citing to findings or other evidence of record supporting conclusions and/or accepted medical authority. If the designated clinician cannot provide this needed additional medical without resorting to mere speculation, it must be so stated but, as importantly, the clinician must provide reasons why an opinion would require speculation. As examples, the clinician must indicate whether there is any further need for information or testing necessary to make a determination, whether an opinion could not be rendered simply due to limitations of knowledge in the medical community at large and not those of the particular examiner, or whatever other reason precludes a sufficiently definitive response. 2. Then readjudicate these remaining claims with consideration of this additional evidence. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Poindexter 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.