Citation Nr: 20004089 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 08-37 306 DATE: January 16, 2020 REMANDED Entitlement to an initial rating in excess of 10 percent for right leg tibia fracture residuals is remanded. Entitlement to an initial rating in excess of 10 percent for left leg tibia fracture residuals is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1988 to June 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2007 rating decision. The Veteran appealed the noncompensable rating initially assigned. Following many years of adjudication and evidentiary development, the Board issued a decision in September 2018. A 10 percent initial rating for both the right and left leg was assigned, effective March 27, 2005. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In July 2019, the parties filed a Joint Motion for Partial Remand (Joint Motion) and in August 2019, the Court issued an order granting that motion. The Board’s September 2018 decision was vacated to the extent that it did not award a rating in excess of 10 percent for either the right or left leg. The case is now again before the Board for action in accordance with the Joint Motion. The Board also remanded several claims in September 2018. Those claims are presently within the RO’s jurisdiction as the remand action is being completed. The Board will not address those issues at this time. Turning now to the evidentiary development needed related to the right and left tibia disabilities. The Joint Motion found deficiency in the Board’s reliance upon prior VA examinations that did not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In particular, the Joint Motion noted that the examiner did not provide a sufficient description of the Veteran’s disability during flare-ups, and did not reconcile conflicting evidence related to whether the Veteran experiences flare-ups. The June 2016 examiner indicated there were flare-ups associated with the service connected disability, but did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. An August 2017 examiner then suggested there are no flare-ups associated with the disability, but made no effort to reconcile this finding with the prior findings. Due to these deficiencies in the prior examination reports, the Joint Motion found the Board erred by relying upon them in the September 2018 decision. The Board is, therefore, remanding this matter for an examination in accordance with the above. Further, the Board recognized that the Veteran’s VA clinical records dated from August 31, 2004 through March 15, 2018 are within the claims file. On remand, any VA clinical records related to treatment of the Veteran’s left or right tibia disability dated from March 15, 2018 to the present should be associated with the claims file. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran’s VA treatment records related to treatment of his right and/or left leg for the period from March 15, 2018 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right and left leg tibia impairment, and to address all aspects of the Veteran’s disabilities as outlined above and necessary by virtue of the August 2019 Joint Motion. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. As noted in the Joint Motion, if at all possible, the examiner is asked to elicit this information and discuss the impact of flareups throughout the pendency of this longstanding appeal, dating since March 27, 2005. If it is not possible to provide a specific measurement 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). The report should include reasons for any opinion expressed. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Adamson, 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.