Citation Nr: 18153112 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-45 268 DATE: November 27, 2018 REMAND Entitlement to a rating in excess of 10 percent for residuals of a left wrist fracture is remanded. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder with sleep disorder is remanded. REASONS FOR REMAND The Veteran had active duty service from March 1968 to December 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal of January 2014 (left wrist) and March 2015 (PTSD) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. As a procedural note, the Veteran’s appeal results in part from a March 2015 rating decision that reduced his assigned rating for service-connected PTSD with sleep disorder from 70 percent to 50 percent effective June 1, 2015. During the pendency of the appeal, the RO reinstated the Veteran’s 70 percent rating effective June 1, 2015. As such, the reduction issue is moot. Nevertheless, the Board notes that although the propriety of a rating reduction is generally a separate issue from a claim for an increased evaluation, where VA processes the appeal of a reduction as if it were an increased rating claim, the Board waives any jurisdictional or procedural barriers to consideration of that claim. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992); Percy v. Shinseki, 23 Vet. App. 277, 279-80 (1992). In this case, the RO issued a rating decision and statement of the case in September 2016, which considered whether a rating in excess of 70 percent would be warranted for the Veteran’s PTSD with sleep disorder. Later that month, the Veteran submitted a VA Form 9, Appeal to Board of Veterans’ Appeals, in which he appealed “[an] increased rating for posttraumatic stress disorder with sleep disorder.” Accordingly, the Board has recharacterized the issue as shown on the title page of this decision. See Brokowski v. Shinseki, 23 Vet. App. 79, 81 (2009). The Veteran’s claim for an increased rating for residuals of a left wrist fracture requires further development, including a VA examination compliant with the holding of the United States Court of Appeals for Veterans Claims (Court) in Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that flare-ups must be factored into an examiner’s assessment of functional loss in evaluating disabilities of the musculoskeletal system. The Board may not treat as adequate an examiner’s opinion that he or she could not offer an opinion without resorting to speculation, unless it is clear that the examiner considered all procurable and assembled data, and that such opinion results from a limitation of the medical community at large, and not a limitation based on lack of expertise, insufficient testing, or unprocured testing by the medical examiner. Id. at 33-35; see also Pettiti v. McDonald, 27 Vet. App. 415, 429-30 (2015) (holding that credible lay evidence of functional loss due to pain, including during flare periods, observed outside of the VA examination context could constitute objective evidence in support of an evaluation). In light of the holdings above, the Court has indicated that VA examiners have the ability to estimate functional loss due to pain during flare-ups based on a Veteran’s lay statements describing functional loss and the severity, duration, and characteristics of flare-ups. During the rating period on appeal, the Veteran had VA examinations for his left wrist disability in June 2013, May 2014, and August 2016. In June 2013, the Veteran reported biweekly flare-ups lasting hours, depending on his level of physical activity. The June 2013 examiner did not offer an opinion as to the extent of additional functional loss manifested during such flare-ups. In May 2014, the Veteran reported having flare-ups once a month during which the pain is so bad that he takes medication and goes to bed for 3 or 4 hours. The May 2014 examiner stated that the Veteran was not having a flare-up at the time of the examination, and therefore, she could not evaluate his condition during a flare-up. In August 2016, the Veteran reported flare-ups every 2 months lasting between 24-48 hours. The examiner stated that the Veteran was limited by pain during flare-ups; but commented that she was unable to say without mere speculation if pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups, because the Veteran was not seen during a flare-up. The above opinions do not comply with the Court’s holding in Sharp. The VA examiners did not estimate functional loss during flare-ups, and did not indicate whether they could not provide such estimates based on limitations of their personal knowledge or that of the medical community at large. See Sharp, 29 Vet. App. at 35-36. Accordingly, remand for an adequate VA examination is required. Id.; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA provides an examination, it must be adequate for rating purposes). The Board notes that it has been more than two years since the Veteran’s last VA psychiatric examination. Additionally, although the Veteran receives VA treatment for the service-connected psychiatric disability at issue, the most recent available treatment records are from September 2016, more than two years ago. Considering VA’s duty to fully develop the record, and issue a decision contemplating the current severity of a disability, remand to provide a current VA examination and procure relevant treatment records is necessary. 38 C.F.R. § 3.327 (a); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). The Veteran receives VA treatment for the service-connected disabilities at issue; therefore, all outstanding, relevant VA treatment records should be procured. This matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2016 to the Present. 2. Thereafter, schedule the Veteran for a VA examination with any suitably qualified examiner to determine the current severity of the Veteran’s left wrist disability. The claims file must be made available to the examiner for review, and the examination report should reflect that such review was completed. Consistent with the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to elicit information on the characteristics, severity, frequency, and duration of the Veteran’s flare-ups, and then estimate the extent of any additional functional loss during such periods. If such an estimate cannot be provided, the examiner must indicate that he or she has considered all procurable and assembled data, and that the inability to provide an estimate results from limitations in the knowledge of the medical community at large, and not limitations of his/her personal knowledge. 3. Schedule the Veteran for a VA psychiatric examination with any suitably qualified examiner to determine the current nature and severity of the Veteran’s service-connected posttraumatic stress disorder with sleep disorder. The claims file should be made available for review, and the examination report should reflect that such review was completed. A complete rationale should be expressed for all opinions provided. 4. Thereafter, readjudicate the Veteran’s claims. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. After allowing a reasonable period for response, return the appeal to the Board for review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel