Citation Nr: 1802575 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 05-05 649 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased disability rating for service-connected residuals of a right wrist injury with degenerative changes (major), currently evaluated as 20 percent disabling based on muscle injury, to include on an extraschedular basis. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), prior to May 27, 2010, to include on an extraschedular basis under 38 C.F.R. § 4.16(b). REPRESENTATION Veteran represented by: National Association for Black Veterans, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1979 to February 1988. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. A hearing was held in February 2007 in Washington, D.C. before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This case was previously remanded by the Board for additional development in April 2007. In September 2008, the Board denied the Veteran's claims of entitlement to an evaluation in excess of 20 percent for service-connected residuals of a right wrist ligament injury with degenerative changes and entitlement to a compensable evaluation for right elbow bursitis with olecranon spur. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2011 Memorandum Decision, the Court affirmed the Board's September 2008 decision as to the denial of a compensable evaluation for a right elbow disability, and vacated and remanded the Board's decision as to a rating in excess of 20 percent for residuals of a right wrist ligament injury with degenerative changes for proceedings consistent with the April 2011 Memorandum Decision. In February and December 2012, the Board remanded the claim for a rating in excess of 20 percent for service-connected residuals of a right wrist ligament injury with degenerative changes for additional development. In July 2013, the Board denied entitlement to a disability rating in excess of 20 percent for service-connected residuals of a right wrist injury (Muscle Group VIII) with degenerative changes and granted two additional 10 percent evaluations for moderate injury of Muscle Group VII (contemplating limitation of flexion of the right wrist) and arthritis with limitation of ulnar and radial deviation, both effective February 27, 2008. The Veteran again appealed the denial of a disability rating in excess of 20 percent for service-connected residuals of a right wrist injury (Muscle Group VIII) with degenerative changes. In March 2014, the Court granted a joint motion to vacate and remand the claim to the Board for readjudication consistent with the terms of the joint motion. In July 2014, the Board remanded the appeal for development consistent with the March 2014 Court order. In September 2016 and June 2017, the appeal was remanded for additional evidentiary development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In September 2016 and June 2017, the Board remanded the appeal to obtain a VA examination and retrospective medical opinions to comply with the Court holding in Correia v. McDonald, 28 Vet. App. 158 (2016). The Court found that the final sentence of 38 C.F.R. § 4.59 (2017) requires that VA examinations include joint testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing. Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran most recently was afforded a VA examination in July 2017. The VA examiner provided ranges of motion for the bilateral wrists, but did not specify whether the ranges of motion were for active and passive motion and/or in weight-bearing and nonweight-bearing. The Board must also reconsider this case in light of Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Court recently addressed 38 C.F.R. § 4.40 (2017), which states that a VA examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in such regard "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." In this regard, the Court concluded that, when a VA examiner is asked to provide an opinion as to additional functional loss during flare-ups of a musculoskeletal disability, the examiner must obtain information from the veteran regarding the severity, frequency, duration, characteristics, and/or functional loss related to such flare-ups. The Court further concluded that, if the examination was not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. Additionally, if the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. Sharp, 29 Vet. App. at 33. The Board has reviewed the July 2017 VA examination findings and concludes that these findings do not meet the specifications of Sharp. Specifically, the VA examiner indicated that the effect of pain, weakness, fatigability or incoordination over repeated use over time could not be described in terms of ranges of motion without resorting to mere speculation. No rationale was provided for this opinion. Lastly, the VA examiner did not provide a retrospective opinion regarding the functional impairment that the Veteran's right wrist disability has caused for the appeal period. The VA examiner indicated that she was unable to assess the severity of the Veteran's right wrist prior to November 2015 and that since November 2015, there was a little worsening. The VA examiner did not indicate how the Veteran's right wrist disability has worsened. She did not address any prior range of motion studies and indicate whether they appropriately reflected the severity of the Veteran's right wrist disability. Accordingly, the Board finds that an updated VA examination is needed before the Veteran's claim can be adjudicated. Id.; see Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In instances where a decision on one issue would have a significant impact upon the outcome of another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the two claims are inextricably intertwined. Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180 (1991); Parker v. Brown, 7 Vet. App. 116, 118 (1994). The issue of the Veteran's entitlement to a TDIU is inextricably intertwined with his pending claim for an increased rating. Thus, the issue of the Veteran's entitlement to TDIU must also be remanded. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination by a medical doctor with the appropriate expertise to ascertain the severity of the service-connected right wrist injury, to include retrospectively. The examiner must review the claims file and should note that review in the report. The examination report must include ranges of motion of the bilateral wrists in active motion, passive motion, weight-bearing, and nonweight-bearing, with notations as to the degree of motion at which the Veteran experiences pain. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The VA examiner must also provide a retrospective medical opinion addressing the ranges of motion and additional functional impairment of the right wrist since 2002. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups of the wrist. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The VA examiner must also provide a retrospective medical opinion addressing the functional impairment of the right wrist since 2002. 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. After the above action has been completed, readjudicate the Veteran's claims. If the claims remain denied, issue the Veteran and his representative a supplemental statement of the case. Afford him the appropriate period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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) (2017).