Citation Nr: 20041809 Decision Date: 06/18/20 Archive Date: 06/18/20 DOCKET NO. 20-16 902 DATE: June 18, 2020 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1966 to September 1968. Entitlement to a TDIU is remanded. The Board finds that additional development is needed prior to final adjudication of the issue on appeal. First, the Board requires clarification regarding the Veteran’s prior employment. The January 2007 application for TDIU states that the last time the Veteran worked full-time was in May 2000, and that he became too disabled to work in June 2000. However, the Veteran then indicated that he did not leave his last job/self-employment because of his disability. Regarding the period after 2000, the Veteran wrote that he worked for T.E.P., part-time/seasonal, from 2002 to 2007. By contrast, in the June 2018 application, the Veteran wrote that the date his disability affected his full-time employment was May 2018, and that he became too disabled to work in that same month and year. Again, the Veteran noted employment with T.E.P., but he wrote that he worked 30-40 hours per week. The Veteran explained that his hours “varied from 25-80 hours a week” given the seasonal nature of the job. A July 2018 VA Form 21-4192 from T.E.P. states that the Veteran worked there from April 2003 to May 2018. Accordingly, upon remand, the Board asks that the Veteran’s employment history be clarified, including the date at which he believes he became too disabled to work and his periods of full-time employment. Second, the Board finds that a new VA examination is needed. The Veteran is service-connected for laceration of right arm with paralysis right ulnar, severe. The Veteran was given a VA examination in July 2018. The examiner noted that there is objective evidence of pain on passive range of motion testing of the Veteran’s right hand, but did not report where the pain occurs, in terms of range of motion. Accordingly, the Board will remand for a new examination that more adequately assesses the severity of the Veteran’s service-connected disability. See Correia v. McDonald, 28 Vet. App. 158 (2016). In addition, the July 2018 VA examiner declined to describe the Veteran’s right-hand flare-ups in terms of range of motion because this could not be done “without speculation.” Direct observation of functional impairment during a flare-up is not a prerequisite to offering a DeLuca opinion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation – whether based on lack of expertise, insufficient information, or unprocured testing – of the individual examiner. See Sharp v. Shulkin, 29 Vet. App. 26, (2017). Therefore, remand for a new VA examination is needed. Accordingly, the matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issue on appeal. Provide the Veteran with new VA Forms 21-8940 and 21-4192. Request that the Veteran clarify his employment history timeline, to include the date he became too disabled to work (e.g. June 2008 or May 2018), any periods of unemployment, the reasons for the unemployment, and any periods of full-time work. All efforts should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for a VA examination to evaluate the current level of the severity of the service-connected right arm disability. The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is asked specifically to provide range of motion testing (ROM) for active motion, passive motion, weight-bearing, and nonweight-bearing. Full ROM testing also must be conducted on the opposite joint unless the opposite joint is damaged, which includes any disorder that would make the joint in question abnormal. If the opposite joint is determined to be damaged, and no ROM on testing is conducted, this must be explained in the report. In addition, the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (a) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use. (b) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. In addition, the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (a) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. (b) If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (c) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. For all ranges and planes of motion where pain is noted, the exact point at which pain start must be clearly noted. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, as expressed in range of motion. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right arm disability and discuss the effect of the Veteran’s right arm disability on any occupational functioning and activities of daily living. The examiner should also provide a peripheral neuropathy examination. TDIU: Finally, the examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his service-connected laceration of right arm with paralysis right ulnar, severe, on employment. The examiner should identify all limitations or functional impairment caused solely by his service-connected disability. (Continued on next page)   3. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Foster, 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.