Citation Nr: 1815004 Decision Date: 03/09/18 Archive Date: 03/19/18 DOCKET NO. 17-67 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a rating in excess of 10 percent for residuals of a first toe, left foot fracture. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD C. Jones, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). The Veteran had active service from February 1963 to August 1963 and from June 1968 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The issue of entitlement to a bilateral leg condition has been raised by the record in a March 2013 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board observes that during a February 2017 VA examination, the Veteran reported flare-ups of the residuals of his first toe, left foot fracture. However, the examiner did not estimate the additional limitation imposed by the flare-ups. The examiner indicated that to describe functional limitation in terms of severity (mild, moderate, severe) or terms such as significant versus non-significant based on a possible future event would be mere speculation. The Board finds that the VA examination is inadequate to adjudicate the Veteran's claim on appeal. In Sharp v. Shulkin, 29 Vet. App. 26, 33-34 (2017), the Court stated that the examiner should estimate a veteran's functional loss due to flare-ups based on all the evidence of record-including the lay information or sufficiently explain why the examiner cannot do so. In this case, while the examiner indicated that he could not opine as to functional limitation during flare-ups without mere speculation, he did not explain why such opinion would be speculative. In light of the foregoing, an addendum opinion must be obtained on remand. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Forward the claims file to the examiner who conducted the February 2017 VA examination to obtain a retrospective medical opinion addressing the functional impairment of the Veteran's residuals of a first toe, left foot fracture during the February 2017 VA examination. Specifically, the examiner must estimate any functional loss in terms of moderate, moderately severe, or severe of the residuals of the first toe, left foot fracture during flare-ups and repetitive use over time noted during the February 2017 VA examination. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and her description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. A clear explanation for the VA medical opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot respond without resorting to speculation, it should be explained why a response would be speculative. If another examination is deemed necessary by the examiner, this should be scheduled. 2. After undertaking any development deemed necessary, readjudicate the issue on appeal, considering all the evidence of record. If the benefit sought on appeal remains denied, provide the Veteran with a Supplemental Statement of the Case and the opportunity to respond. The case should then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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 (2012). _________________________________________________ David Gratz Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).