Citation Nr: 18158192 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 12-10 942 DATE: December 14, 2018 REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected right wrist disability with degenerative join disease is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1961 to April 1965. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Roanoke, Virginia. In December 2014, the Board remanded this matter for additional evidentiary development. Following development, the Board denied the claim in July 2017. In the July 2017 decision, the Board denied entitlement to a disability rating in excess of 10 percent for the right wrist disability, which the Veteran then appealed to the United States Court of Appeals for Veterans Claims (the Court). In July 2018, the Court, based on a Joint Motion, vacated the Board’s denial and remanded the issue for further consideration. 1. Entitlement to a disability rating in excess of 10 percent for the service-connected right wrist disability with degenerative join disease is remanded. The Veteran asserts his right wrist disability warrants a higher rating due to reduced range of motion. Currently, the Veteran’s right wrist disability is rated under DCs 5010 and DC 5215 of 38 C.F.R. § 4.71a. Under DC 5215, a sole rating of 10 percent is authorized for limitation of motion in either wrist. Normal range of motion in the wrist is dorsiflexion to 70 degrees, palmar flexion to 80 degrees, radial deviation to 20 degrees, and ulnar deviation to 45 degrees. See 38 C.F.R. § 4.71a, Plate I. In a July 2017 decision, the Board denied a disability rating in excess of 10 percent, stating that the assigned rating accounted for the Veteran’s current limitations. However, in July 2018, the Court, based on a joint motion, vacated the Board’s denial and remanded the issue. According to the Court, the Board erred when it relied on insufficient medical examinations that failed to consider the Veteran’s possible functional loss of his right wrist during flare-ups. The Court has held that an adequate examination must properly consider the scope of a claimant’s functional loss in the musculoskeletal system when the relevant rating criteria are based upon limitation of motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). This includes during flare-ups and on repetitive use. Id. If the examiner is not able to provide such an opinion without resorting to speculation, he/she must explain the reason for that inability. Jones v. Shinseki, 23 Vet. App. 382, 390-92 (2010). But before concluding as such, the examiner must consider all procurable and assembled data. Id. at 390; see Sharp v. Shulkin, 29 Vet. App. 26, 35 (holding that before concluding that a requested opinion could not be provided without resorting to speculation, the examiner should do “all that reasonably should be done to become informed” about the case). In the case of flare-ups, this includes eliciting information from the Veteran himself about any additional functional loss that he may experience during a flare-up, even if the Veteran is not experiencing a flare-up during the examination. See Sharp, 29 Vet. App. at 36. The examiner should then estimate the additional functional loss due to flare-ups based on all of the evidence of record, including the Veteran’s lay statements, or otherwise explain why an opinion is not possible. Id. Although the Veteran is receiving the maximum 10 percent rating under DC 5215, an appropriate analysis of his flare-ups may by relevant in consideration of a higher rating under other diagnostic codes, or entitlement to an extraschedular rating. The Joint Motion directed the Board to provide the Veteran with a medical examination that complies with Sharp and adequately considers the scope of the Veteran’s functional loss during flare-ups and repetitive use. The matter is REMANDED for the following action: 1. Contact the Veteran and his representative and request that they provide or identify and authorize the recovery of any records of treatment for right wrist disability. If obtained, associate these treatment records with the electronic claims file. All records/responses received must be associated with the electronic claims file. 2. Obtain and associate any updated VA treatment records with the claims file. All records/responses received must be associated with the electronic claims file. 3. Schedule the Veteran for an appropriate VA examination to assist in determining the nature and current level of severity of his service-connected right wrist disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination report must include a notation that this review of the evidence of record occurred. The examination should include any necessary diagnostic testing or evaluation, i.e. X-rays, etc. All pertinent symptomatology should be reported in detail. In particular, the examiner should 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. Based on the Veteran’s lay statements and any additional relevant 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. To the extent possible, the examiner must express any functional loss in terms of additional degrees of limited motion. 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). The examiner must provide a comprehensive report including complete rationales for all opinions. 4. After completing the above, and any other development as many be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be re-adjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. C. Slaughter, Associate Counsel