Citation Nr: 20002911 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 19-08 134 DATE: January 14, 2020 REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected status post right middle finger fracture is remanded. Entitlement to a compensable disability rating for service-connected status post right small finger fracture is remanded. Introduction The Veteran served honorably on active duty in the United States Army during the Gulf War Era, from August 1990 to November 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. REASONS FOR REMAND The Veteran filed a claim in October 2018 seeking increased ratings for service-connected status post right middle finger fracture, currently evaluated as 10 percent disabling, and service-connected status post right small finger fracture, currently evaluated as non-compensable. As a result, in December 2018 the Veteran underwent a VA compensation and pension (C&P) examination and x-ray imaging and, thereafter, the December 2018 Rating Decision and a March 2019 Statement of the Case (SOC) denied his claims for increased ratings. Initially, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To comply with the Court’s decision in Sharp v. Shulkin, examiners are asked to describe whether pain, weakness, fatigue, and/or incoordination significantly limits a Veteran’s functional ability after repetitive use over time and during flare ups. 29 Vet. App. 26, 34-36 (2017). If so, the examiner must estimate range of motion (ROM) after repetitive use over time and during flare ups based upon relevant information elicited from the Veteran, review of the claims file, and the current examination results pertaining to the frequency, duration, characteristics, severity, and functional loss after repetitive use over time and during flare ups. Id. According to Sharp, a mere lack of direct observation of functional limitations after repetitive use or during a flare-up is an insufficient basis for not estimating its functional effects. 29 Vet. App. at 34. The Court 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. Sharp, 29 Vet. App. at 36. Essentially, Sharp directs that VA examiners must do all that can be reasonably done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. 29 Vet. App. at 35. In the present case, the Board finds the VA examination is inadequate for rating purposes. First, the VA examiner’s report only addressed the Veteran’s service-connected right middle (or, long) finger, and did not mention the Veteran’s service-connected right small (or, little) finger whatsoever. Next, although the VA examiner did acknowledge the Veteran’s reported functional impairments of gripping and grasping, and prolonged typing and writing, he did not attempt to assess or estimate the functional impact of repeated use over time in terms of the degree of additional ROM loss, if any. Instead, and contrary to the holding in Sharp, the VA examiner expressed that, “[i]t is not possible … without resorting to mere speculation, to estimate loss of [ROM], because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions.” The VA examiner also indicated that he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability with repeated use over time. Finally, the VA examiner’s report is contradictory noting at one point that the Veteran did not acknowledge having flare-ups; yet, noting at another point that it would again require “resorting to mere speculation, to estimate loss of [ROM]” during flare-ups. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an examiner possessing appropriate expertise (preferably an orthopedist), who has not previously examined the Veteran, to fully assess and provide an opinion (in the appropriate DBQ form) regarding the nature and severity of the Veteran’s: (a.) Status post right middle finger fracture condition for the entire period on appeal. (b.) Status post right small finger fracture condition for the entire period on appeal. All pertinent evidence of record, as well as this remand, must be made available to and reviewed by the examiner. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. All pertinent symptomology and findings must be reported. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully-reasoned explanation. If objective ROM testing during a flare-up is not feasible because the Veteran is not currently experiencing a flare, then based upon relevant information elicited from the Veteran regarding the severity, frequency, duration, and degree of functional loss during such flares, a review of the file, and the current examination results, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional ROM lost. The Board recognizes the difficulty in making such a determination, but requests that the examiner provide his or her best estimate. If objective ROM testing following repeated use over time is not feasible, then based upon relevant information elicited from the Veteran, a review of the file, and the current examination results, the examiner is requested to provide an estimate of the Veteran’s functional loss following repeated use over time expressed in terms of the degree of additional ROM lost. The Board recognizes the difficulty in making such a determination, but requests that the examiner provide his or her best estimate. If it is not possible to provide a specific measurement or an estimate of functional loss in terms of the degree of additional ROM lost during flare-ups or following repeated use over time 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). To the extent possible, the examiner should discuss the effects, if any, of the Veteran’s right hand disabilities on any occupational functioning and activities of daily living. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.