BVA used inadequate VA exam to deny higher rating for cervical spine disability
Summary of the Case
The Veteran served on active duty in the United States Navy from July 1972 to July 1975. The VA regional office granted service connection for a chronic neck strain in September 1983. They assigned a 10% disability rating. In January 2010, the Veteran filed a claim for increased disability compensation. He described flare-ups of pain whenever he lay down. He also stated that any type of activity aggravated his neck. Finally, he explained that his neck disability caused difficulty focusing and with interpersonal communication, and interrupted his sleep.
In May 2010, the RO awarded a 20% disability rating for degenerative disc disease and degenerative changes of the cervical spine. At an April 2015 VA examination, the Veteran reported flare-ups every few months. He reported that these flare-ups typcially lasted 4 to 5 days. He also noted that they caused him pain to the point that he was unable to move his neck. The examiner stated that he was unable to estimate the further loss of range of motion on flare-ups, without resorting to mere speculation.
Board denies rating in excess of 30% for cervical spine
In August 2016, the Board increased the disability rating for the cervical spine disability from 20% to 30%. However, it denied a disability rating in excess of 30% for the cervical spine disability. The Veteran appealed this denial to the Court of Appeals for Veterans Claims.
Inadequate VA examination
CCK argued that the Board erred in relying on an inadequate VA examination which failed to provide the necessary information as to functional loss during flare-ups. The examiner stated that he was unable to opine on additional range of motion loss during flare-ups without resorting to speculation, as the Veteran was not being examined during a flare-up. However, the examiner did not explain the basis for his opinion that he could not opine without speculation. Due to this reason CCK determined that the exam was inadequate for adjudication.
The Court agreed with CCK’s argument, citing the recent precedential decision in Sharp v. Shulkin, 29 Vet.App. 26, 34 (2017). In Sharp, the Court found that a medical examiner’s proclaimed inability to offer an opinion regarding additional functional loss during flares “without directly observing functions under th[o]se circumstances,” was “at odds with VA’s guidance on the matter” and established caselaw. 29 Vet.App. at 34-35 (internal quotation marks omitted). Therefore, the Board’s determination that the examiner’s explanation was adequate was contrary to law. The Court concluded that the Board’s findings necessitated a remand for a new medical examination.
The Court disagreed with VA’s argument that this error was harmless. Specifically, it was not apparent from the Board’s decision or the current record that the examiner elicited sufficient information to conclude that a higher disability rating may not be warranted. Furthermore, the evidence of record reflected that the Veteran was unable to move his neck during flare-ups. Therefore, contrary to VA’s argument, the Court found that the inadequacies in the VA examination were prejudicial.
Extraschedular referral
CCK also argued that the Board failed to discuss favorable evidence when it determined that the Veterans disability did not warrant extraschedular rating. The Court agreed. The Board found that the diagnostic criteria adequately described the severity and symptomatology of the Veteran’s disability. However, it failed to discuss lay statements describing difficulty focusing, problems with interpersonal communication, and sleep impairment. The Board did not explain how rating criteria based on limitation of motion adequately account for these manifestations of the Veteran’s cervical spine disability. The Court therefore vacated the Board’s decision denying an increased rating for the cervical spine disability, and remanded the matter for further proceedings consistent with its decision.
