Citation Nr: 18152193 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-38 889 DATE: November 21, 2018 REMANDED The claim of entitlement to a rating in excess of 20 percent for lumbosacral strain is remanded. The claim of entitlement to a rating in excess of 10 percent for a right ankle condition is remanded. The claim of entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1992 to October 1995. These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2011, March 2012, and September 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In December 2015, the case came before the Board and the Board remanded the Veteran’s service connection claims because new evidence had been added to the file that was not considered by the RO in a Supplemental Statement of the Case. In July 2018, the case was returned to the Board and the Board denied service connection for a left testicle disability, left shoulder disability, and a skin disability. Moreover, the Board remanded the right ankle and back issues for additional examinations. Lastly, the Board remanded the TDIU claim because this issue was inextricably intertwined with the increased ratings that were still on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. As to the issues of increased ratings for a lumbar strain and a right ankle disability, the Board notes that these disabilities were last examined by VA in September 2018. Significantly, during these examinations, the Veteran stated that he experiences flare-ups with both of these conditions, but the examiner did not account for the Veteran’s lost range of motion when he experiences a flare-up. Specifically, the examiner stated that she was unable to say without mere speculation if pain, weakness, or incoordination significantly limits functional ability with any flare-ups. Accordingly, the Board acknowledges that in the case of Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court noted that for a joint examination to be adequate, the VA examiner “must express an opinion on whether pain could significantly limit” a Veteran’s functional ability, and that determination “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.” Furthermore, the Court stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the Veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of Veterans,” and the examiner’s determination “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. Id. at 10. Thus, the Board finds these examinations to be insufficient and a remand is necessary in order to provide the Veteran with new examinations. As to the TDIU issue, this is inextricably intertwined with the remaining issues on appeal. Therefore, a final decision on the issue of entitlement to TDIU cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Finally, as to all three remanded issues, the most recent VA treatment records are dated in September 2018. Given the need to remand for other reasons, updated VA treatment records should be obtained on remand. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from September 2018 to the present. 2. Schedule the Veteran for VA examinations to determine the severity of his back and ankle disabilities. (A). Full range of motion testing must be performed where possible. The joint involved should also be tested in both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of the opposite undamaged joint. 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 the basis for this decision. (B). The examiner should also request the Veteran to identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of any flare-ups on range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. In providing all of the requested opinions, the examiner should consider the Veteran’s competent lay claims regarding the observable symptoms he has experienced. The VA examination report must include a complete rationale for all opinions expressed. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page)   3. Readjudicate the case. APRIL MADDOX Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel