Citation Nr: 18154716 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 14-30 987 DATE: December 4, 2018 REMANDED Entitlement to a disability rating in excess of 10 percent for left foot stress fractures calcaneus is remanded. Entitlement to a disability rating in excess of 10 percent for right foot stress fractures calcaneus is remanded. REASONS FOR REMAND The Veteran served in the Army from July 1976 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Louis, MO. In an August 2017 Board decision, the Veterans entitlement to a disability rating in excess of 10 percent for bilateral stress fractures calcaneus was denied. The Veteran appealed the Board's 2017 decision to the Court of Appeals for Veterans Claims (CAVC). In April 2018 CAVC vacated the Board’s decision. Pursuant to a Joint Motion for Remand and the April 2018 order approved by the United States Court of Appeals for Veteran's Claims (CAVC), the parties agreed that the Board erred in its August 2017 denial of the Veteran's claim for entitlement to a disability rating in excess of 10 percent for bilateral heel stress fractures by not providing an adequate statement of reasons or bases, when it failed to evaluate each of Appellant’s feet separately. See Prokarym v. McDonald, 27 Vet. App. 307, 311 (2015). On remand, the Board must consider each of Appellant’s feet individually for rating purposes. Please note that the case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c) (2017). The claim of entitlement to a disability rating for left foot, and right foot stress fractures calcaneus, in excess of 10 percent is remanded. With regard to the Veteran's increased rating claims, the Board acknowledges that the Veteran has been afforded VA examinations in September 2012 and October 2014 as to the severity of his left foot stress fracture calcaneus and right foot stress fracture calcaneus disability. However, the United States Court of Appeals for Veterans Claims (Court) has recently issued two precedential cases that address the adequacy of VA examinations conducted for the purpose of evaluating musculoskeletal disabilities. Specifically, the Court has held that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, the Court recently addressed 38 C.F.R. § 4.40, 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 v. Shulkin, 29 Vet. App. 26, 33 (2017). Upon a review of the Veteran's VA examinations performed during the course of the appeal, it does not appear that such conformed to the Court's holdings in Correia and Sharp. Therefore, a remand is necessary in order to afford the Veteran a new VA examination that addresses such matters. Furthermore, such examination should include retrospective medical opinions addressing the findings included in the September 2012 and October 2014 examinations. The matter is REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination to determine the current severity and symptomology of his left and right foot disabilities (left foot and right foot stress fractures calcaneus). The record, to include a complete copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must provide all examination findings, along with a complete rationale for the conclusions reached. The examiner should identify the current nature and severity of all manifestations of the Veteran's left and right foot stress fractures calcaneus. The examiner should record the range of motion each foot observed on clinical evaluation in terms of degrees. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and non-weight-bearing and, if possible, with range of motion measurements on both feet. 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. Correia v. McDonald, 28 Vet. App. 158 (2016). It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. With specific regard to flare-ups, if Veteran endorses experiencing them, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is 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. 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 v. Shulkin, 29 Vet. App. 26, 33 (2017). The examiner is also requested to review the VA examination containing range of motion findings pertinent to the Veteran's left and right foot disabilities conducted in October 2014. In this regard, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and non-weight-bearing and, if possible, with range of motion measurements. If the examiner is unable to do so, he or she should explain why. The examiner is also requested to review the VA examination conducted in October 2014, and offer an opinion as to whether additional loss of range of motion was present during a flare-up. If the examiner is unable to do so, 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. The examiner also should comment upon the functional impairment resulting from the Veteran's left and right foot disabilities. For purposes of these opinions requested herein, the examiner is requested to please attempt (to the extent possible) to distinguish the symptomatology associated with the Veteran's service-connected bilateral feet disabilities (left and right foot stress fractures calcaneus) with symptomatology caused by any foot disability not service connected (i.e. Achilles Tendinitis, Pes Cavus, bilateral and Hallux Valgus, bilateral). Please note if it is not possible to attribute the Veteran's symptoms to each disability separately. 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. (Continued on the next page)   2. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran and representative a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD CLittle, Associate Counsel