07-31 703, 07-31 703

Veteran served in Marines (1991) and Army (2004–2005; 2008–2010) and has service‑connected cervical spine degenerative disc disease (DDD).
RO granted an increased rating effective March 25, 2011; appeal remained pending for higher rating.
Board granted service connection for bilateral upper extremity radiculopathy in Dec 2015 and remanded for a new cervical spine examination.
Board denied rating in excess of 20% for cervical DDD in Jan 2017; Court granted a Joint Motion for Partial Remand in June 2017 vacating and remanding for inadequate reasons and bases.
Record shows veteran reports flare‑ups, pain, stiffness, and intermittent radiculopathy; prior VA examinations (Nov 2012, Feb 2016) noted flare‑ups but did not adequately quantify their impact on range of motion or functional loss.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether veteran is entitled to >20% rating for cervical DDD under the General Rating Formula for the spine	Veteran contends worsening symptoms, flare‑ups, and functional loss from pain/weakness justify a rating above 20%	VA previously relied on examinations finding current ROM and noted inability to quantify additional loss during flare‑ups	Remand: insufficient contemporaneous evidence; examiner must address ROM, pain‑limited motion, flare‑ups, repeated use, fatigability, incoordination, and incapacitating episodes so RO can readjudicate
Whether prior VA examinations adequately evaluated functional loss from pain, flare‑ups, and repeated use	Treatments and lay testimony show flare‑ups and functional limitation that were not quantified	Examiners previously declined to estimate functional loss during flare‑ups, citing lack of current flare‑up	Remand: examinations were inadequate; VA must obtain a new, contemporaneous exam with rationale addressing the functional impact of flare‑ups and painful motion

AB v. Brown, 6 Vet. App. 35 (1993) (pending appeal remains when higher benefit remains sought)
DeLuca v. Brown, 8 Vet. App. 202 (1995) (functional loss from pain must be considered in musculoskeletal ratings)
Petitti v. McDonald, 27 Vet. App. 415 (2015) (§4.59 links painful motion to limited motion; exam must address painful motion)
Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must ensure examinations it obtains are adequate)
Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (duty to provide contemporaneous medical exam when evidence does not reflect current disability)
Francisco v. Brown, 7 Vet. App. 55 (1994) (current level of disability is primary when increase is at issue)
Johnston v. Brown, 10 Vet. App. 80 (1997) (consider weakened movement, excess fatigability, incoordination, or pain on movement)
Burton v. Shinseki, 25 Vet. App. 1 (2011) (§4.59 is not limited to arthritis; applies when painful motion is raised)
Petitti v. McDonald, 27 Vet. App. 415 (2015) (adequate pathology and observable behavior required to find functional loss due to pain)
Kutscherousky v. West, 12 Vet. App. 369 (1999) (claimant may submit additional evidence after remand)