Citation Nr: 20052406 Decision Date: 08/06/20 Archive Date: 08/06/20 DOCKET NO. 08-30 018A DATE: August 6, 2020 REMANDED The claim of entitlement to a rating in excess of 10 percent for residuals of a shrapnel wound of the left (minor) wrist, with retained shrapnel, is remanded. REASONS FOR REMAND In September 2016 and January 2018, the Board remanded the case for further development. In November 2018, the Board denied the claim. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In March 2020, the Court issued an Order vacating the November 2018 Board decision on this issue, and remanding the case for compliance with a Joint Motion for Remand (JMR). 1. The claim of entitlement to a rating in excess of 10 percent for residuals of a shrapnel wound of the left (minor) wrist, with retained shrapnel, is remanded. A review of the JMR shows that it was agreed that the Board had failed to ensure compliance with its January 2018 remand, in which it directed the Regional Office (RO) to obtain a new medical opinion in which the examiner assesses any additional functional impairment during flare-ups in terms of the degree of additional range of motion (ROM) loss, and that if the examination was not conducted during a flare-up, the examiner should estimate the additional functional impairment based on the Veteran’s reports. In this regard, the JMR states that in a May 2018 VA disability benefits questionnaire (DBQ), the examiner reported that he was unable to estimate the additional limitation of motion during flare-ups without resort to mere speculation, because the examination was not conducted during a flare-up. The JMR shows that it was agreed that a remand is required for “a new medical opinion that assesses additional functional impairment during flare-ups in terms of the degree of additional ROM (range of motion) loss and if the examination is not conducted during a flare-up, the examiner should estimate the additional functional impairment based on Appellant’s reports.” Citing Stegall v. West, 11 Vet. App. 268, 271 (1998); Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). In Sharp, the Court of Appeals for Veterans Claims (Court) explained that it must be clear that a VA examiner has “considered all procurable and assembled data” before stating that an opinion cannot be reached. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). When the record is unclear as to whether a VA examiner has done this - for example, “by obtaining all tests and records that might reasonably illuminate the medical analysis” - the Board must remand the matter for clarification or additional development. Second, the examiner must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. In other words, it must be apparent that the inability to provide an opinion without resorting to speculation “reflect[s] 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. Id. As part of this obligation, a VA examiner should identify when specific facts cannot be determined. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the current severity of the Veteran’s service-connected left wrist disability, to include specific findings regarding pain on range of motion testing, and an estimation of functional loss. 2. a) The examiner is requested to test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing (if applicable) for both the right and the left wrist (i.e., the paired joint). If the examiner is unable to conduct the required testing, or concludes testing is not necessary, he or she should clearly explain why that is so. b) The examiner must provide an opinion as to the severity of the Veteran’s left wrist symptoms, and how those symptoms impact his occupational functioning. c) With regard to flare-ups, if the examination does not take place during a flare-up, the examiner should obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups from the Veteran. The examiner should also record the Veteran’s complaints of symptoms with regard to any functional loss with repetitive use. d) The examiner must express an opinion as to whether or not the Veteran’s left wrist functional ability is significantly limited during flare-ups, or with repetitive use, and those determinations should, if feasible, be portrayed in terms of the degree of additional loss of range-of-motion during flare-ups or with repetitive use. e) A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.