Citation Nr: 18153228 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-48 247 DATE: November 27, 2018 REMANDED Entitlement to an initial compensable rating for a left hand long finger disability is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee disability is remanded. REASONS FOR REMAND The Veteran had active service with the United States Army from November 1986 to November 1989 and May 2003 to May 2004 with additional service in the Army Reserve or National Guard through 2007. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) denying the Veteran’s claim for entitlement to an initial compensable rating for a left hand long finger disability and an initial rating in excess of 10 percent for a left knee disability. 1. Entitlement to an initial compensable rating for a left hand long finger disability is remanded. The Veteran’s left finger disability is assigned a noncompensable rating under Diagnostic Code 5229 for limitation of extension. See Notice of Disagreement (NOD), November 2015. When evaluation of a musculoskeletal disability is based on limitation of motion, VA regulations provide, and the United States Court of Appeals for Veterans Claims (Court) has emphasized, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2015); see DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran was afforded a VA examination in September 2015. The examiner diagnosed residuals of extensor tendon repair of the left middle finger from the severance of tendons by an axe. The examiner noted that the Veteran was right handed. Although the examiner noted that the Veteran reported flare-ups, pain upon use, and loss of full range of motion, flexibility and dexterity, the examiner indicated that the Veteran did not report having any functional loss or functional impairment of the joint or extremity being evaluated. The examiner noted abnormal or outside range of motion on the left hand. The max extension reported was 10 degrees and the max flexion reported was 90. Pain was reported on examination and functional loss reported during finger flexion. There was no additional loss of range of motion or function on repetition. The practitioner did not provide measurements between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible. With regard to the reported flare-ups, the practitioner found the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. He was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time because “she [sic] had not done repetitive prior to exam nor was in flare at time of exam.” The examiner did not address further limitation of motion during a flare-up. The examiner noted that the left long finger condition functionally impacts the Veteran’s ability to perform occupational tasks which require repetitive use. No further discussion was given as to what occupational tasks could be performed such as grip strength of objects or function such as driving a vehicle. Because the evaluation contained inconsistencies and no medical opinion, the Board finds the September 2015 examination inadequate. Therefore, the Board is unable to make a fully informed decision. 2. Entitlement to an initial rating in excess of 10 percent for a left knee disability is remanded. The Veteran’s left knee disability is assigned a 10 percent disability rating under Diagnostic Code 5261 for limitation of extension, effective August 1, 2014. The Veteran seeks increased initial ratings for his left knee disability. See Notice of Disagreement (NOD), November 2015. The Veteran was afforded a VA examination in September 2015. The examiner diagnosed post-surgical residuals from four separate arthroscopic debridements of a left knee medical meniscal tear with residual scar and osteoarthritis. Testing revealed flexion from 10 to 120 degrees with exhibited pain on motion. Extension was noted from 120 to 10 degrees with exhibited pain on motion. The general practitioner noted “general tenderness with boggy joint line and no effusion.” The Veteran reported flare-up pain giving out resulting in a fall. The examiner noted no additional loss of range of motion after repetition but did not address further limitation of motion during a flare-up. Further, clinical tests for instability were normal. With regard to the reported flare-ups, the examiner found the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. The practitioner indicated a left knee meniscal condition with frequent episodes of joint pain as a result of four arthroscopic meniscal debridements. The practitioner noted that the left knee condition functionally impacted the Veteran’s ability to perform occupational tasks which require prolonged standing, sitting, or walking. The examiner did not address additional functional loss during flare-ups. The Board finds the September 2015 VA examination did not satisfy the standard set by the United States Court of Appeals for Veteran Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that, per 38 C.F.R. § 4.59, in order to assess the effect of painful motion, range of motion tests for both passive and active motion, and in both weight-bearing and non-weight-bearing circumstances, should be done). The practitioner did not fully characterize the additional functional loss the Veteran experiences as a result of the reported flare-ups of his left knee disabilities. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) (outlining VA examiners’ obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups). The Board also finds that the standard required in Sharp was not fully satisfied and thus, another VA examination is necessary to assess the nature and severity of the Veteran’s left knee disabilities. Further, as the Veteran’s reports of falls are not consistent with the clinical tests showing no instability, an assessment of the reasons for the falls, i.e. pain causing an inability to support weight or actual joint unstable structure. Therefore, this matter is remanded for a new VA examination that includes such. The matters are REMANDED for the following action: 1. Schedule a new VA examination to address the current severity of the Veteran’s service-connected left long finger disability to include measurements between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible. The claims folder should be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should note whether there is any weakened movement, excess fatigability, incoordination, or pain on use. If so, the examiner should note whether there are any additional degrees of loss of motion as a result (if it is not feasible to quantify, please explain). If flare-ups are noted, the examiner should note whether pain during flare-ups additionally limits functional ability. The examiner should note whether there are any additional degrees of loss of motion due to pain during flare-ups (if it is not feasible to quantify, please explain). The examiner should also address the effect of the Veteran’s left long finger disability on his occupational functioning consistent with his education, experience, and skills. 2. Schedule a new VA examination to address the current severity of the Veteran’s service-connected left knee disability. The claims folder should be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. The examination must comply with the requirements of 38 C.F.R. § 4.59 involving measurements of passive and active range of motion - in both weight bearing and non-weight bearing. The examiner must explain why any of these clinical tests are not appropriate or could not be performed. A complete rationale for any opinions expressed should be provided. The examiner should be asked to note whether there is any weakened movement, excess fatigability, incoordination, or pain on use. If so, the examiner should note whether there are any additional degrees of loss of motion as a result (if it is not feasible to quantify, please explain). If flare-ups are noted, the examiner should note whether pain during flare-ups additionally limits functional ability and if so estimate the additional loss of range of motion or other function from the Veteran’s description of his disability during a flare up (if it is not feasible to quantify, please explain). Finally, the examiner should indicate whether the Veteran continues to experience loose cartilage, whether missing cartilage contributes to pain or effusion, and whether the Veteran’s reported falls are caused by pain due to an inability to support weight or because of joint laxity and instability. (Continued on the next page)   3. Then, readjudicate the Veteran’s claims. If any claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case (SSOC). Note a review of all new evidence associated with the claims file since the issuance of the last SOC or SSOC (several new documents were received for all claims). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim(s) should be returned to the Board for further review. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. NeSmith, Associate Counsel