Citation Nr: 1648498	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  11-06 320	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


Entitlement to a rating in excess of 20 percent for a cervical spine disability.  


Appellant represented by:	North Carolina Division of Veterans Affairs


J. Dworkin, Associate Counsel


The Veteran had active service from October 1983 to September 1986 and from May 1989 to May 1993.

This matter comes before the Board of Veterans' Appeals (Board) following an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied an evaluation in excess of 20 percent for the Veteran's claim.

This matter was remanded for additional development by the Board in April 2016

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


A Remand is required regarding the issue of entitlement to an increased rating for a cervical spine disability.  Although a VA examination was conducted in 2014, recent case law renders that examination inadequate.  Correia v. McDonald, 28 Vet. App. 158 (2016).  In particular, the Board notes that findings from the previous examination appears insufficient to assess the Veteran's cervical spine motion in passive motion, and (where relevant) weight-bearing and nonweight-bearing settings.  Accordingly, the Veteran should be afforded a VA examination to assess the current nature and severity of the cervical spine disability. 

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA spine examination, by an examiner with the proper expertise, to determine the current severity of the cervical spine disability.  The examiner must review the claims file and all previous VA examination reports and must note that review in the report.  The examination report should show consideration of the Veteran's documented medical history and assertions.  All indicated tests, to include X-rays and range of motion evaluations, should be accomplished, and all clinical findings reported in detail.

(a) The examiner should make specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination associated with use of the cervical spine.  If pain on motion is observed, the examiner should indicate the point at which pain begins.  In addition, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss of the cervical spine due to pain or any of the other symptoms listed above during flare-ups or with repeated use.  To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. 

b) Additionally, the examiner must test the range of motion in active motion, passive motion, and (where appropriate) weight-bearing and nonweight-bearing settings.  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.

2.  Then, readjudicate the claim.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response.  Then, return the case to the Board.

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

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals 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).

Thomas H. O'Shay
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals 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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