Citation Nr: 18160351
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 09-22 173
DATE:	December 27, 2018
Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the cervical spine is remanded.
The Veteran had active service from November 1976 to September 1982 and from December 1984 to October 2006.
This matter comes before the Board of Veterans’ Appeals (Board) from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted service connection for degenerative arthritis of the cervical spine and assigned an initial noncompensable rating, effective November 1, 2006.  Before the appeal was certified to the Board, in an April 2012 rating decision, the RO increased the rating for the Veteran’s cervical spine disability to 10 percent, effective February 26, 2010.
In an April 2015 decision, the Board denied an initial compensable rating prior to February 26, 2010, and in excess of 10 percent thereafter for the cervical spine disability.  The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court).  In a December 2016 memorandum decision, the Court vacated the Board’s April 2015 decision, and remanded the matter for action consistent with its decision.  
In an August 2017 decision, the Board granted an initial 10 percent rating for the Veteran’s cervical spine disability.  The Board remanded the issue of entitlement to an initial disability rating in excess of 10 percent for additional evidentiary development.  In January 2018, the Board again remanded the matter for additional evidentiary development.  For the reasons set forth below, another remand is unfortunately required.  
1. Entitlement to an initial compensable rating in excess of 10 percent for degenerative arthritis of the cervical spine, effective November 1, 2006 is remanded.
At August 2006, February 2010, and January 2013 VA examinations, the Veteran described experiencing flare-ups of cervical spine pain which he claimed left him unable to move, or bend or turn his head sufficiently to work at a computer.  He described difficulty standing, walking and sleeping during flareups, stated that he had limited range of motion during flareups, and claimed that he was unable to get out of bed during flareups.  
Pursuant to the Court’s memorandum decision, the Board remanded the matter for additional evidentiary development, to include obtaining a VA medical examination to address the severity of the Veteran’s cervical spine disability, particularly during flare-ups.  In its January 2018 remand, the Board directed the examiner to:
. . . describe whether pain, weakness, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares.  If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees.  If there is no pain and/or no limitation of function, such facts must be noted in the report.
The April 2018 VA examiner, after reviewing the Veteran’s e-folder and CPRS that contain the Veteran’s previous descriptions of his flare-ups, examined the Veteran in-person.  However, the examiner noted that the Veteran did not report flare-ups of the cervical spine on examination and that he did not report any functional loss or functional impairment of the cervical spine, and simply stated that testing during flare-ups were “not applicable.”  The Board finds that the examination does not provide the information necessary to comply with the Court’s instructions.  
The matter is REMANDED for the following action:
Schedule the Veteran for an examination to determine the severity of his service-connected degenerative arthritis of the cervical spine.  Access to the Veteran’s electronic claims file must be made available to the examiner for review in connection with the examination.  
The examiner should report the results of range of motion testing of the cervical spine on both active motion and passive motion and in both weight bearing and non-weight bearing, as appropriate.  
On range of motion testing, the examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the cervical spine.  If pain on motion is observed, the examiner should indicate the point at which motion limiting pain begins.
Even if the Veteran is not examined during a flare-up, based on examination results, the Veteran’s reported history, and the results of the August 2006, February 2010, and January 2013 VA examinations,  the examiner should indicate whether, and to what extent, the Veteran has experienced additional functional loss during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion.
In expressing the extent of any additional functional loss during flare-ups, the examiner should elicit from the Veteran information about the severity, frequency, duration, precipitating and alleviating factors and extent of functional impairment during flare-ups.  If the examiner is unable to estimate functional loss during flare-ups in terms of additional degrees of limited motion after physical examination, eliciting the pertinent information about the flare-ups noted above, and reviewing the August 2006, February 2010, and January 2013 VA examination reports, he or she must explain why and may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up.
K. Conner
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	H. Yun, Associate Counsel

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