Citation Nr: 22019775
Decision Date: 04/03/22	Archive Date: 04/03/22

DOCKET NO. 17-55 720
DATE: April 3, 2022

REMANDED

Entitlement to a disability rating in excess of 20 percent for cervical spine degenerative disc disease (DDD) prior to February 8, 2017, in excess of 10 percent prior to September 3, 2021, and in excess of 20 percent thereafter is remanded.

INTRODUCTION

The Veteran had active military service in the Navy from November 1989 to November 2009.

When this case was previously before the Board in May 2019, the above-noted issue was remanded for additional development.  The case has since been returned for further appellate review. 

REASONS FOR REMAND

While additional delay of the above-noted claim is unfortunate, the Board finds further development is required before the Veteran's claim is decided.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  To be considered adequate, a VA musculoskeletal examination must include an assessment of the veteran's flare-ups, as well as range of motion measurements in weight bearing, non-weight bearing, and in passive motion.  See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158 (2016). 

Following the May 2019 remand, the Veteran underwent VA neck examinations in August 2019 and October 2021; however, the VA examiners failed to provide all of these critical evaluative criteria.  Specifically, the examiners failed to provide both non weight-bearing and weight-bearing range of motion assessments.  As such, a remand is again required.  Further, following the October 2021 examination, no Supplemental Statement of the Case (SSOC) was issued considering the additional evidence, and the Veteran has not waived his right to have the evidence considered by the AOJ.  The Board has thus determined that the issuance of a SSOC addressing this evidence is warranted.  See 38 C.F.R. § 19.37 (b) (evidence received after transfer of records to the Board).

Accordingly, the case is REMANDED for the following action:

Afford the Veteran a VA examination by a physician with sufficient expertise to fully assess the severity of the Veteran's service-connected cervical spine disability.  All pertinent evidence of record should be made available to and reviewed by the examiner.  Any indicated studies should be performed.

Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments.

In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost.

If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 

 

 

T. REYNOLDS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Fraser, 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.