Citation Nr: 1806757 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-13 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to an evaluation in excess of 10 percent for service-connected right hip bursitis with knee pain. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert A. Elliott II, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1988 to August 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Anchorage, Alaska, Department of Veterans Affairs (VA) Regional Office (RO) which denied the benefit sought. In May 2017, the Board remanded the Veteran's claim for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was afforded a VA Hip examination in June 2017 pursuant to a prior Board remand. She reported hip flare up's that "get flared up with increased activity." The examiner noted that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with flare-ups. In addition, the Veteran was afforded a VA knee examination in June 2017 pursuant to a prior Board remand. She reported knee flare ups and in her own words "knees hurt every day; uses knees everyday." The examiner noted that pain significantly limited functional ability with flare-ups but did not describe in terms of range of motion, nor did the examiner explain why he could not estimate functional loss in terms of range of motion. Significantly, in a December 2017 Appellate brief, the Veteran, through her representative, asserted that the Veteran indeed experiences flare ups causing functional impairment that were never tested, or adequately assessed by the VA examiners. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. In light of the Court's recent holding in Sharp, and the Veteran's assertions that she experiences flare ups that cause functional limitations that were not identified or fully addressed in the prior VA examination, the Board will remand the claim for the scheduling of another examination. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with an opportunity to identify any outstanding private or VA treatment records relevant to his claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 2. Schedule the Veteran for a VA examination or examinations with an appropriate professional to determine the nature, extent, and severity of his service-connected right hip bursitis with knee pain disability. All indicated tests should be performed, including range of motion findings expressed in degrees. The examination(s) must include testing results on both active and passive motion and in weight-bearing and nonweight-bearing. The examiner should assess where pain begins on the Veteran's initial range of motion and upon repetitive testing. The examiner should also describe any pain, weakened movement, excess fatigability, and incoordination present. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Significantly, the examiner(s) must also estimate any functional loss in terms of additional degrees of limited motion of both right hip and right knee experienced during flare-ups and repetitive use over time. If the examination occurs when a flare-up is not being experienced, or at a time without repeated use over a period of time, the examiner must ascertain adequate information, such as frequency, duration, characteristics, severity, or functional loss regarding the Veteran's flares by alternative means and estimate the Veteran's functional loss due to flares or repeated use, in terms of degrees, based on all the evidence of record. If this is not feasible to determine the above-requested information without resort to speculation, the examiner(s) must provide an explanation for why this is so. It must be clear that the inability to provide an opinion is predicated on lack of knowledge among the "medical community at large" and not the insufficient knowledge of the specific examiner. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). All opinions expressed should be accompanied by supporting rationale. 3. After completing the above actions, to include any other development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran should be issued a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). _________________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals