Citation Nr: 22036732 Decision Date: 06/27/22 Archive Date: 06/27/22 DOCKET NO. 17-64 020 DATE: June 27, 2022 REMANDED Entitlement to an initial evaluation greater than 20 percent for radiculopathy of the left upper extremity is remanded. Entitlement to an initial evaluation greater than 20 percent for radiculopathy of the right upper extremity is remanded. Entitlement to an initial evaluation greater than 20 percent for status post remote cervical strain is remanded. Entitlement to a total disability rating based upon individual unemployability due to the service-connected disabilities (TDIU) prior to October 25, 2016, is remanded. REASONS FOR REMAND The Veteran served in active duty in the United States Navy from August 1978 to September 1981. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in April 2019 and 2020 and remanded for additional development. The Veteran seeks an increased rating for his service-connected cervical spine and bilateral upper extremity radiculopathy. In support of his claim, the latest VA examination in December 2019 shows that the Veteran reported flare-ups that could last 3 to 4 days and can be severe. Additionally, the examiner noted that the Veteran suffers from moderate pain and numbness from his upper extremity radiculopathy. See December 2019 neck conditions examination; December 2019 peripheral nerves conditions examination. Inasmuch as the most recent examinations are from December 2019, the Board finds that these matters must be remanded for a contemporaneous examination(s) to assess the current nature, extent and severity of his cervical spine and bilateral upper extremity radiculopathy disabilities for a complete and accurate portrayal of the Veteran's disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In addition, the Veteran seeks TDIU benefits. In support of his claim, the Veteran has reported that he has not been able to work due to his service-connected disabilities throughout the appeal period. See July 2019 VA Form 21-8940. The Veteran's TDIU claim is inextricably intertwined with the matters on remand and thus must be remanded. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other); see also Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Notably, the Veteran has been awarded a 100 percent schedular rating effective from October 25, 2016, and the Veteran's claim for entitlement to TDIU has been characterized accordingly. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, of the impact, extent and severity of his cervical spine and bilateral upper extremity radiculopathy problems and the impact of the disabilities on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay and medical evidence. 4. Schedule a VA examination for an audiological examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all cervical spine pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-ups. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. If unable to opine without speculation, the examiner should indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). The examiner must also discuss the nature and severity of the Veteran's bilateral upper extremity radiculopathy symptomatology, including during periods of flare-up, taking into account the Veteran's lay reports. Failure to provide the requested discussion as to the nature and severity of the Veteran's cervical and bilateral upper extremity radiculopathy symptomatology, including during flare-ups, will result in the examination provided being found to be inadequate. If findings as to the nature and severity of the Veteran's cervical and bilateral upper extremity radiculopathy symptomatology, including during periods of flare-up, are not possible without speculation, the examiner should clearly explain why that is so (e.g., additional facts are required, such is not possible without adequate testing during that time, etc.). Jarrette A. Marley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.