Citation Nr: 1648525	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  12-09 461	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to an increased rating greater than 30 percent for service-connected compression fracture of C5 with arthrodesis at C4-C6, cervical spine degenerative disc disease, and chronic posterior cervical myofascial pain syndrome.

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to May 31, 2014.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Espinoza, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from November 1957 to May 1961. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.

These matters were previously before the Board in February 2015 and June 2015, when in pertinent part, the claims herein were remanded for additional development.  These claims were again before the Board in January 2016, when in pertinent part, the Board awarded entitlement to a TDIU and remanded the issue of entitlement to an increased evaluation for the Veteran's compression fracture of C5 with arthrodesis at C4-C6, cervical spine degenerative disc disease, and chronic posterior cervical myofascial pain syndrome.  

The award of entitlement to a TDIU was granted in a February 2016 rating decision which effectuated the award of TDIU effective May 31, 2014.  However, as noted in the February 2015 Board decision, the issue of entitlement to a TDIU was raised during the August 2014 Board hearing as part a claim for entitlement to a compensable initial rating for headaches, for which service connection was awarded effective July 20, 2011.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Moreover, entitlement to a TDIU was also raised by the Veteran in a September 2011 statement as part of an increased rating for his cervical spine disability.  Thus, under Rice there remains an issue of entitlement to TDIU prior to May 31, 2014 in relation to the increased rating issues.  Accordingly, it has been included on the title page of this decision.

In August 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is associated with the claims file.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

As discussed above, the Veteran raised the issue of entitlement to a TDIU as part and parcel of his appeal for a higher initial rating for headaches, and the increased rating claim for his cervical spine disability.  Thus, the award of a TDIU effective from May 31, 2014 is not a full grant of the benefits sought.  Thus, a supplemental statement of the case as to the issue of entitlement to a TDIU prior to May 31, 2014, is required.  Furthermore, while the Board recognizes that in August 2014 testimony the Veteran reported he retired in May 2014; in September 2015 VA headache and neck conditions examination reports, he reported he retired in 2012.  Clarification of the date of the Veteran's retirement from employment should be obtained.

With respect to an increased rating for compression fracture of C5 with arthrodesis at C4-C6, cervical spine degenerative disc disease, and chronic posterior cervical myofascial pain syndrome, the Board finds the most recent September 2015 neck conditions examination report to be inadequate.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  Specifically, the September 2015 neck conditions examination report, in part, documented range of motion testing and noted no evidence of pain with weight bearing.  However, an examination must include test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, which were not all conducted during this examination.  Correia v. McDonald, 28 Vet. App. 158 (2016).  Thus, a remand is warranted for such testing to be accomplished.  

Accordingly, the case is REMANDED for the following actions:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Provide the Veteran with an appropriate VA examination to determine the current nature and severity of his service-connected compression fracture of C5 with arthrodesis at C4-C6, cervical spine degenerative disc disease, and chronic posterior cervical myofascial pain syndrome.  The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination.  Any necessary diagnostic testing must be conducted.  All pertinent symptomatology and findings must be reported in detail. 

All ranges of motion involving the service-connected cervical spine disability should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or whether there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's service-connected cervical spine disability, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination.

Additionally, the examiner should test the range of motion in active motion and passive motion, as well as weight-bearing and nonweight-bearing, if appropriate.  If the examiner is unable to conduct the required testing or concludes that the required testing (i.e. on weight-bearing) is not necessary in this case, he or she should clearly explain why that is so.

Furthermore, an opinion must be given as to whether any pain, associated with the Veteran's service-connected cervical spine disability, could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups.

The examiner must also address any neurological symptoms due to the Veteran's service-connected compression fracture of C5 with arthrodesis at C4-C6, cervical spine degenerative disc disease, and chronic posterior cervical myofascial pain syndrome.  (The Veteran is already separately service connected for left upper extremity radiculopathy).

A complete rationale must be provided for any medical opinion offered.

2.  The Veteran must be notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2015).

3.  Contact the Veteran and request clarification of the date of his retirement from employment.  Advise the Veteran that such clarification is needed as he reported he retired in May 2014 during testimony provided in August 2014, and that he reported that he retired in 2012 in a September 2015 VA headache and neck examination.

4.  Finally, readjudicate the issues on appeal, to include entitlement to a TDIU prior to May 31, 2014.  If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2015).



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