Citation Nr: 18154842 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 09-28 123A DATE: December 3, 2018 REMANDED Entitlement to a rating in excess of 10 percent for osteoarthritis of the lumbar spine, prior to March 16, 2016, and in excess of 20 percent beginning March 16, 2016, is remanded. Entitlement to a rating in excess of 10 percent for osteoarthritis of the left hip is remanded. Entitlement to a rating in excess of 10 percent for osteoarthritis of the right hip is remanded. Entitlement to a rating in excess of 10 percent for residuals of a fracture of the right distal fibula is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1969 to October 1970. He had additional service with the Army National Guard of Oklahoma. This case comes before the Board of Veterans Appeals (Board) on appeal from an October 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The claim has a lengthy appellate history and was initially remanded by the Board’s January 2015 decision for a hearing. The Veteran testified before the undersigned in August 2015. The claims were remanded for new examinations by the Board’s February 2016 decision. The resulting examination reports failed to provide testing required by Correia v. McDonald, 28 Vet. App 158 (2016) and the claims were remanded again by the Board’s August 2017 decision. Unfortunately, as detailed below, an additional remand is required. Generally, disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. § 4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a body part which becomes painful on use must be regarded as seriously disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45 (2017). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment. In applying these regulations, VA should obtain examinations in which the examiner determines whether the disability was manifested by pain, weakened movement, excess fatigability, incoordination, and flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations, if feasible, should be expressed in terms of the degree of additional range-of-motion loss due to those factors. DeLuca, supra; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); 38 C.F.R. § 4.59. Further, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court of Appeals for Veterans Claims (Court) held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so.” As noted by the Board’s August 2017 remand, in Correia, the Court provided a precedential interpretation of the final sentence of 38 C.F.R. § 4.59 and held that VA examinations must include range of motion testing of the pertinent joint for pain, as well as any paired joint, in active motion, passive motion, and in weight-bearing and non-weight-bearing. VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Finally, a remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a rating in excess of 10 percent for osteoarthritis of the lumbar spine, prior to March 16, 2016, and in excess of 20 percent beginning March 16, 2016, is remanded. A VA back examination was provided in October 2017. The Veteran reported flare ups of his back pain. The examiner, noting that the examination was not conducted during a flare, did not describe additional functional loss the Veteran would experience during the flare and stated that to do so would require speculation. The examiner did not illicit additional information from the Veteran to provide an estimate of additional impairment. The examination is not complaint with the requirements of Sharp. The Board’s August 2017 remand directives, following Correia, required range of motion testing for pain “in active motion, passive motion, weight-bearing, and non-weight-bearing. 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 this is so.” The October 2017 examiner only reported initial range of motion testing. He commented that there was no evidence of pain on non-weight bearing tests and passive motion testing could not be completed due to “size.” Unfortunately, the examination did not include the required weight-bearing testing or an explanation as to why the testing was not performed, nor was there an explanation as to why “size” precluded passive range of motion testing. An additional examination must be provided. See Stegall, supra; see also Correia, supra. 2. Entitlement to a rating in excess of 10 percent for osteoarthritis of the left hip. is remanded. 3. Entitlement to a rating in excess of 10 percent for osteoarthritis of the right hip is remanded. A VA hip and thigh examination was provided in October 2017. The Veteran reported flare ups of his hip pain and described the right hip as being “worse than the left.” The examination was not conducted during a flare. In evaluating the Veteran’s condition during a flare, the examiner checked a box indicating that functional ability was not significantly limited by pain, weakness, fatigability or incoordination. No comment was included to reconcile this finding with the Veteran’s statement of experiencing additional pain, particularly in the right hip, during a flare. Moreover, in indicating that functional ability was not “significantly” limited, there is an implication that it was limited to a lesser degree, but the amount of limitation to functional ability was not described. The report fails to fully describe the Veteran’s condition and is inadequate to evaluate the claim. See Stefl, supra. As described above, the Board’s August 2017 remand directives, following Correia, required range of motion testing for pain on weight-bearing. “in active motion, passive motion, weight-bearing, and non-weight-bearing. The examination did not include the required weight-bearing testing or an explanation as to why the testing was not performed. An additional examination must be provided. See Stegall, supra; see also Correia, supra. 4. Entitlement to rating in excess of 10 percent for residuals of a fracture of the right distal fibula is remanded. October 2017 VA examinations of the Veteran’s knees and ankles were provided to evaluate residuals of a fracture of the right distal fibula. The Veteran did not report any flares in his knees or ankles. The requirements of Sharp are not applicable to these examinations. However, as discussed above, the examiner did not provide the weight bearing tests required by Correia and the Board’s remand instructions. No explanation was given for not conducting the required testing. Additional examinations must be provided. See Stegall, supra; see also Correia, supra. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his back disability, right hip disability, left hip disability, and residuals of a fracture of the right dorsal fibula. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. The examiner should identify all back, right hip, left hip, and right dorsal fibula pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in BOTH active and passive motion, AND in weight-bearing and non-weight-bearing. 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. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. (Continued on the next page)   Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should 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). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel