Citation Nr: 18155370 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-55 451 DATE: December 4, 2018 REMANDED Entitlement to an initial rating in excess of 10 percent for right ankle degenerative changes with posterior tibial and Achilles tendonitis, status postsurgical repair with history of fracture, ligamentous laxity, and instability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1976 to October 1976, from February 1978 to February 1985, from November 1990 to May 1991, and from September 1992 to December 1993. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Entitlement to an initial rating in excess of 10 percent for right ankle degenerative changes with posterior tibial and Achilles tendonitis, status postsurgical repair with history of fracture, ligamentous laxity, and instability is remanded. The Veteran contends that he is entitled to a higher rating because his right ankle is worse than currently contemplated by the assigned rating. The Veteran had a medical examination from his private physician, Dr. J. H., in April 2014. Dr. J. H. discussed the Veteran’s objective evidence of pain during range of motion for the Veteran’s right ankle. Dr. J. H. noted that the Veteran reported daily flare-ups. Dr. J. H. stated that the Veteran also had pain and swelling, weakness, and loss of range of motion in his right ankle. Dr. J. H. did not specify the limitations to range of motion caused by the flare-ups. Dr. J. H. provided an addendum opinion in September 2016, in which he discussed nerve damage as secondary to the Veteran’s already service-connected right ankle, but he did not discuss flare-ups further. The Veteran was afforded a VA examination for his right ankle in April 2016. The VA examiner noted that the Veteran reported flare-ups. However, the VA examiner concluded that it is not feasible to provide the degree of additional range of motion loss because the Veteran was not experiencing a flare at the time of the examination. Estimates of additional range of motion would therefore be speculation. In August 2016, the VA examiner that conducted the VA examination in April 2016 provided an addendum opinion, in which she discussed nerve damage as secondary to the Veteran’s already service-connected right ankle. The VA examiner did not discuss flare-ups further. The Board notes that the United States Court of Appeals for Veterans Claims (Court) recently addressed the adequacy of an examiner's findings concerning additional functional loss during flare-ups of a musculoskeletal disability pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that examiners must estimate the functional loss that would occur during flare-ups. Specifically, examiners must name the precipitating and alleviating factors for the flare-ups and estimate, "per the veteran," the extent to which flare-ups affect functional impairment. Id. at 33. Thus, in light of the Court's holding in Sharp, the Board finds that the Veteran's claim must be remanded for a new examination and opinion addressing the limitation of motion during flare-ups, as the Veteran's most recent examinations did not address this issue. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA medical examination with the appropriate medical professional to fully assess the severity of the Veteran's service-connected degenerative changes of the right ankle. The VA examiner should review the claims file in its entirety. The VA examiner should report the extent of right ankle symptoms in accordance with VA rating criteria. Range of motion testing, in degrees, should be performed. In reporting the results of range of motion testing, the VA examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. The VA examiner should test the range of motion of the right ankle in active motion, passive motion, weight-bearing, and non-weight-bearing. If the VA examiner is unable to conduct the required testing, or concludes that the required testing is not necessary in this case, an explanation should be provided. The extent of any incoordination, weakened movement, and excess fatigability on repeated use should also be described by the VA examiner. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA examiner should opine (estimate) as to any resultant loss in range of motion that would occur during flare-ups, or explain why it is not feasible to render such an opinion. The VA examiner is advised that an opinion must be based on estimates derived from information procured from relevant sources, including the lay statements of the Veteran. VA's Clinician's Guide specifically advises VA examiners to try to procure information necessary to render an opinion regarding flare-ups from veterans. A full and complete explanatory rationale must be provided for any opinion(s) offered. If the VA examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, the VA examiner should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. (Continued on the next page)   2. After ensuring compliance with the above, readjudicate the Veteran’s claim. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Mahaffey, Associate Counsel