Citation Nr: 18149400 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 13-18 389A DATE: November 9, 2018 ORDER A disability rating of 10 percent for a healed fracture of the right thumb is granted. REMANDED A rating in excess of 10 percent for a healed fracture of the left wrist is remanded. A rating in excess of 10 percent for a healed fracture of the right thumb is remanded.   FINDING OF FACT The Veteran has at least limitation of motion of the right thumb due to weakness and pain. CONCLUSION OF LAW The criteria for a 10 percent rating for a healed fracture of the right thumb have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code (DC) 5228. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1981 to August 1985. This matter comes from a January 2010 rating decision. In June 2014, the Veteran appeared at a Board hearing. The case was most recently before the Board in March 2017. At that time, the Board remanded the case for additional development. Whether at least a compensable disability rating is warranted for a healed fracture of the right thumb is granted. The Veteran’s service-connected healed fracture of the right thumb is rated under 38 C.F.R. § 4.71a, DC 5228. DC5228 provides for a minimum compensable 10 percent rating for certain limitation of motion. The April 2017 VA examiner reported that, in addition to arthritis of the right thumb related to the service-connected healed fracture, there was limited motion of the right thumb due to weakness and pain, with a 1-cm gap between the pad of the thumb and the fingers. Painful motion of the right thumb is shown throughout the appeal period. See, e.g., November 2009 VA examination report; June 2014 Board hearing transcript. Therefore, on further consideration, the Board finds that the criteria for a disability rating of at least 10 percent under DC 5228 have been met. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Cf. Sowers v. McDonald, 27 Vet. App. 472, 480 (2016) (there is no minimum compensable rating available for painful motion under DC 5230 for the ring and little finger). The issue of a disability rating higher than 10 percent for the service-connected healed fracture of the right thumb is addressed below in the remand portion of this decision. This intermediary grant of benefits will not prejudice the Veteran. REASONS FOR REMAND 1. A rating in excess of 10 percent for a healed fracture of the left wrist. 2. A rating in excess of 10 percent for a healed fracture of the right thumb. Initially, the Board notes that while on remand, in March 2017, the RO conducted an electronic query, which appears to show that the Veteran is receiving Social Security Administration (SSA) disability benefits. No request has been made for the Veteran’s SSA disability records. See 38 C.F.R. § 3.159(c)(2). The Board notes that VA records in August 2017 reflect the Veteran’s report that he has been receiving SSA disability benefits for eight years. Additionally, on a February 2017 TDIU application, the Veteran indicated he was receiving disability retirement benefits. Thus, the SSA records should be requested on remand. In addition, the Veteran was afforded VA examinations in March 2017. Flare-ups of right thumb and left wrist symptoms were noted, to include with pushing from the wrist, such as lifting himself out of a chair, or, lifting items, such as a five-pound bag, along with weather changes, as well as with repetitive movements, such as using a screwdriver. Decreased range of motion of the left wrist was noted with pain with weight bearing and pain and guarding starting at the end degrees of motion reported. Although no ankylosis was noted, the examiner stated that it was not possible to estimate loss of additional functional loss caused during a flare-up of the left wrist or right thumb without resort to mere speculation because there is no conceptual or empirical basis for making such a determination without directly observing the functioning under such conditions. This is similar to a rationale that was rejected by the United States Court of Appeals for Veterans Claims (Court) as to flare-ups in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Instead, the examiner should consider the Veteran’s reports of the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves to determine the extent of additional functional limitation during a flare-up. Id. at 34 (citing VA CLINICIAN’S GUIDE, ch. 11). On remand, an examiner should opine as to additional loss of function, including in range of motion during a flare-up, or explain why this cannot be accomplished. The matters are REMANDED for the following action: 1. Make a request for the Veteran’s SSA disability records. If no records are found, document the claims file accordingly. 2. Schedule the Veteran for a VA examination to assess the severity of the service-connected left wrist and right thumb disabilities. (Continued on the next page)   This should include an assessment complying with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). If the functional loss during a flare-up cannot be estimated in terms of range of motion in degrees, it should be explained why this is so. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Taylor