12-02 998
12-02 998
| Board of Vet. App. | Jun 30, 2017Background
- Veteran served active duty 1984–1993 and briefly in 1997; service connection for cervical spine disability was granted with a 10% rating effective June 1, 1993 (interrupted by brief return to active duty).
- RO initially assigned a 10% rating effective October 13, 2006; later RO established earlier effective date of June 1, 1993 and other date adjustments were made for duty interruptions.
- Veteran sought an increased rating for cervical DDD/DJD with history of cervical strain and radiculopathy; Board denied increase in September 2016 and that decision was appealed to the Court of Appeals for Veterans Claims.
- In April 2017 the parties filed a Joint Motion for Remand (JMR) and the Court vacated the Board’s September 2016 decision and remanded, finding the Board failed to discuss all relevant severity evidence (including 2004 PT notes, 2006 neurosurgery consult, and May 2016 nerve study/MRI).
- The Board remanded to the AOJ for further development and a contemporaneous VA cervical spine examination because the September 2014 VA exam lacked required testing (per Correia). The remand directs updated records, specific testing (active/passive ROM, weight-bearing, repetitive-use, neurological testing), and an opinion on whether the left ulnar nerve findings are related to or aggravated by the service-connected cervical disability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Veteran is entitled to an increased rating for service-connected cervical spine disorder | Veteran asserts record (2004 PT, 2006 neurosurgery, 2016 nerve study/MRI) shows greater severity and radiculopathy warranting higher rating | Secretary defended Board denial but acknowledged Board failed to address relevant evidence and that further development may be needed | Remanded: Board’s prior decision vacated; AOJ must obtain updated records and provide a new, adequate VA exam addressing ROM, neurologic findings, and relation of ulnar nerve study to cervical condition |
| Whether prior VA exams were adequate under Correia standards | Veteran/Secretary argued prior exam (2014) lacked required testing and findings (active/passive, weight-bearing, contralateral comparison) | Secretary agreed inadequacy required remand for a contemporaneous exam | Remanded for a new VA examination meeting Correia requirements |
| Whether the May 2016 nerve study/MRI must be considered in adjudication | Veteran argued the 2016 studies showing decreased left ulnar nerve conduction may reflect cervical radiculopathy and must be evaluated | Secretary agreed these records were not adequately discussed and may be determinative | Remanded: examiner must opine whether ulnar nerve findings are proximately due to or aggravated by the service-connected cervical disability |
| Adequacy of Board’s reasons and bases | Veteran argued Board failed to discuss key evidence of severity and radiculopathy | Secretary concurred that Board’s statement of reasons was inadequate per JMR | Remanded for readjudication with explanation considering all evidence obtained since March 2015 SSOC |
Key Cases Cited
- Correia v. McDonald, 28 Vet. App. 158 (2016) (sets adequacy requirements for VA examinations, including active/passive and weight-bearing ROM testing)
- Allday v. Brown, 7 Vet. App. 517 (1995) (duty to obtain contemporaneous medical examination when record does not adequately reveal current disability)
- Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession and must be obtained when material)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (appellant may submit additional evidence/argument after remand)