Citation Nr: 19122003 Decision Date: 03/26/19 Archive Date: 03/23/19 DOCKET NO. 17-15 455 DATE: March 26, 2019 REMANDED Entitlement to a rating in excess of 10 percent for status post left femur fracture (“left femur disability”) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1956 to July 1958. This matter is on appeal from an August 2013 rating decision. In November 2017, the Board remanded this matter for additional development. Unfortunately, the Veteran’s appeal must once again be remanded as review of the claims file reveals that there was not substantial compliance with the Board’s prior remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand). Entitlement to a rating in excess of 10 percent for a left femur disability is remanded. The Board remanded this claim in November 2017 to afford the Veteran a new VA examination that complies with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Pursuant to Correia, an adequate VA joint examination must include testing the joint for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint. Moreover, under the requirements of Sharp, VA examiners must estimate the functional loss that would occur during periods of flare-up of a musculoskeletal disability. Specifically, examiners must name the precipitating and alleviating factors for the flare-ups and estimate, per the veteran’s reports, the extent to which flare-ups affect functional impairment. The Veteran underwent a VA examination to assess the current severity of his left femur disability in February 2018. Upon examination, the Veteran reported that he experiences flare-ups. However, the examiner did not assess any additional functional loss, nor did he attempt to estimate the degree of functional loss experienced during periods of flare-up. Although the examiner determined that pain and weakness significantly limit functional ability with flare-ups and repeated use over time, he stated that he could not describe the functional loss in terms of range of motion because it would be speculation to do so. The Board notes that in Sharp, the Court, citing Jones v. Shinseki, 23 Vet. App. 382, 390-91 (2010), held that an examiner may not decline to provide an opinion on the basis of speculation unless the examiner has “considered all procurable and assembled data” and offered a basis for this conclusion. 29 Vet. App. at 32. Moreover, it must be apparent that the inability to provide an opinion without speculation reflects “the limitation of knowledge in the medical community at large,” as opposed to a limitation of the individual examiner (lack of expertise, insufficient information, or unprocured testing). Id. Here, according to the examination report, the Veteran was detailed in his description of the limitations he experiences during periods of flare-ups of his left femur disability. In this regard, the Veteran described experiencing worsening pain with prolonged walking, standing, or weather changes, for which he is required to rest and elevate his left leg and increase his use of medications. Therefore, the basis for the examiner’s conclusion as to his inability to render an opinion without resorting to speculation is unclear, particularly in light of the VA Clinician’s Guide, which instructs examiners to opine as to functional loss during a flare-up based on the Veteran’s lay statements. In light of the above deficiencies, the Board finds the February 2018 examination to be inadequate. Because the examiner did not comply with the Board’s November 2017 remand directives, this matter must once again be remanded for compliance. See Stegall, 11 Vet. App. at 268. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate medical professional (M.D.) to fully assess the current severity of his left femur disability. The claims file, to include a copy of this REMAND, must be made available to and reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. Thereafter, the examiner is asked to address the following: (a) Report the extent of the symptoms of the left femur disability in accordance with VA rating criteria. (b) Conduct range of motion testing of the left knee (i.e., flexion and extension) and left hip (i.e., flexion, extension, abduction, adduction, and rotation), specifically noting the motion in degrees on active motion, passive motion, weight-bearing, and nonweight-bearing. The results should be compared with range of motion testing conducted on the opposite undamaged joints (i.e., right knee and right hip). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. (c) Render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the left knee and hip. If pain on motion is observed, the examiner should indicate the point at which pain begins. (d) 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 his symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and other evidence of record, the examiner must provide an opinion estimating any additional degrees of limitation of range of motion caused by functional loss during a flare-up. If the examiner is unable to do so, s/he must fully explain the basis of such an opinion. It should be noted that VA’s Clinicians Guide specifically advises examiners to procure information necessary to render an opinion regarding flare-ups from veterans. (e) Report on the level of severity (i.e., slight, moderate, marked) of any other left knee and hip disability caused by malunion of the femur. A full and complete explanatory rationale must be provided for any opinions offered. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must indicate whether this inability is due to a lack of knowledge among the medical community or based on a lack of procurable information. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel