Citation Nr: 18159300 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-23 475 DATE: December 18, 2018 REMANDED Entitlement to a disability rating in excess of 10 percent for residuals of dislocation and arthritis of the left elbow is remanded. INTRODUCTION The Veteran served on active duty from August 1951 to June 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. The Regional Office in Philadelphia, Pennsylvania has jurisdiction over the Veteran’s case. The matter on appeal was previously before the Board in November 2017, when the case was remanded for further development. The case has returned to the Board for additional appellate action. A motion to advance on docket has been raised by the Veteran and his representative due to the Veteran's age. See Motion to Advance on Docket dated December 2017. The undersigned is granting that motion and advancing the appeal on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). REASONS FOR REMAND While additional delay is unfortunate, the Board finds further development is required before the Veteran’s claim is decided. As noted in the Board's November 2017 remand, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The United States Court of Appeals for Veterans Claims (Court) has determined that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to 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. See Correia v. McDonald, 28 Vet. App. 158 (2016). Further, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court expressed that VA examiners must do all that can be reasonably done to become informed about a veteran’s reported musculoskeletal flare-ups prior to providing an opinion on functional loss during flares. Specifically, the Court found an examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, before concluding an assessment of the functional loss during flares could not be provided without resorting to speculation. Moreover, the Court expressed that before the Board can accept an examiner's statement that an opinion cannot be provided without resort to speculation, it must be clear that this is predicated on a lack of knowledge among the medical community at large and not the insufficient knowledge of the specific examiner. See Sharp, 29 Vet. App. at 35-36 (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). In the course of the November 2017 remand, the Board found the July 2015 and February 2017 VA examinations to be insufficient, because they did not comply with the Court’s determinations in Correia and Sharp. Specifically, the July 2015 and February 2017 VA examination reports did not include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, with range of motion measurements of the opposite undamaged joint, as required under Correia. Further, the February 2017 VA examiner failed to state what information and evidence was considered, and explain why such evidence does not permit the examiner to offer an estimation of the Veteran’s functional loss during flare-ups. See Sharp, 29 Vet. App. at 35-36. As such, the case was remanded in order to obtain a new examination with a competent medical opinion addressing these previous deficiencies. The Veteran subsequently underwent a VA examination in January 2018. Notwithstanding, the Board finds the medical opinion provided failed to substantially comply with the Board's remand instructions. The examiner opined the Veteran’s left elbow pain significantly limited his functional ability with repeated use over a period of time and during flare-ups. However, the examiner stated she was not able to describe the Veteran’s additional functional loss in terms of range of motion without resorting to mere speculation, as the examination was not performed during flare-ups or after repeated use over a period of time. The January 2018 examiner, like the February 2017 VA examiner, failed to state what information and evidence was considered, and explain why such evidence did not allow her to offer an estimation of the Veteran’s functional loss during flare-ups or with repeated use over a period of time. Further, the examiner did not state whether the inability to provide an estimation of the additional functional loss was predicated on a lack of knowledge among the medical community at large. The Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The record reflects the Veteran has reported flare-ups occurring as often as weekly and lasting up to fourteen days. He stated that during flare-ups, the severity of his left elbow pain ranged from four to ten out of ten. Further, he has described exacerbating elements including the weather, upper body exercises, and sports, as well as alleviating factors including stretching exercises, analgesics, and rest. Notwithstanding, in providing an opinion regarding functional loss during flare-ups or with repeated use over a period of time, the January 2018 VA examiner failed to discuss all procurable and assembled data, including the above-described statements. Accordingly, the Board finds the January 2018 VA examiner failed to address the questions posited in the Board’s November 2017 remand, and as such, substantial compliance has not been achieved. Moreover, the proffered opinions are not compliant with the Court’s ruling in Sharp. Therefore, a remand is necessary to elicit relevant information as to the Veteran’s musculoskeletal flares, to include the additional functional loss due to flares or repeated use over a period of time, based on all evidence of record—to specifically include the Veteran’s lay information—or explain why, with this information, such an assessment cannot be offered. The matter is REMANDED for the following action: 1. Obtain a supplemental opinion from the January 2018 VA examiner or, if unavailable, an appropriate substitute. The Veteran’s claims file must be made available to and reviewed by the examiner, including a copy of this remand. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and non-weight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares and with repeated use over a period of time, if possible in degrees of motion lost. If the examiner is unable to provide such assessment without resorting to mere speculation, he or she must explain why the procurable and assembled data does not permit him or her to offer an estimation of the Veteran’s functional loss. Further, if it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Then, undertake any other development determined to be warranted, and readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate Supplemental Statement of the Case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Martinez, Associate Counsel