Citation Nr: 18157505 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 10-36 472A DATE: December 13, 2018 REMANDED Entitlement to a rating in excess of 20 percent for the residuals of a fracture of the right tibia and fibula since December 2, 2015, is remanded. REASONS FOR REMAND The Veteran had active duty from October 1980 to August 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in March 2009 by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Board remanded the issue on appeal for additional development and, in August 2017, denied a rating in excess of 20 percent for the residuals of a fracture of the right tibia and fibula since December 2, 2015. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In June 2018, the Court granted a Joint Motion for Remand (JMR) that vacated the August 2017 Board decision as to such issue and the matter now returns for further appellate review. Entitlement to a rating in excess of 20 percent for the residuals of a fracture of the right tibia and fibula since December 2, 2015. As relevant, the Board remanded the above issue in February 2017 in order to afford the Veteran a VA examination that complied with the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016). Thereafter, a VA examination was conducted in April 2017. In this regard, the examiner provided initial range of motion measurements pertinent to the Veteran’s right knee and later noted that there was pain on weight-bearing in both knees, but not on nonweight-bearing or passive movements. The Board subsequently relied upon such VA examination in denying the Veteran’s increased rating claim in the August 2017 decision. However, the JMR found that the Board erred in relying on such examination as it is inadequate under Correia. Specifically, it was noted, that while the examiner tested for pain in weight- and nonweight-bearing and in active and passive motion, he did not include range of motion testing in such capacities, or explain why such testing was not possible or necessary. Consequently, a remand is necessary in order to afford the Veteran a new VA examination that addresses the nature and severity of his right leg disability in accordance with the Correia. Further, in conducting such examination, the examiner should also address the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017) The matter is REMANDED for the following actions: The Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected right leg disability. The record, including a complete copy of this remand, must be made available for review in connection with the examination, and all indicated tests and studies should be undertaken. If possible, such examination should be conducted during a flare-up. (A) The examiner should record the range of motion of the right knee observed on clinical evaluation in terms of degrees for flexion and extension. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, 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 nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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. (B) The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the Veteran’s right knee conducted in December 2015 and April 2017. 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 nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. (C) 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. (D) If the Veteran endorses experiencing flare-ups of his right knee, 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. A rationale should be provided for any opinion offered. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brennae L. Brooks, Associate Counsel