Citation Nr: 20053880 Decision Date: 08/13/20 Archive Date: 08/13/20 DOCKET NO. 07-24 202 DATE: August 13, 2020 REMANDED Entitlement to an evaluation in excess of 10 percent for a right wrist disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1975 to July 1976. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2006 rating decision. The Veteran testified before the undersigned during a May 2009 hearing. This matter was previously before the Board in August 2010, November 2015, and January 2017. In each of these instances, the issue of an increased evaluation for the Veteran’s right wrist disability was remanded for additional development. The Board notes that a November 2017 Report of General Information shows the Veteran stated during a phone call with a VA representative that he was satisfied with a grant of a total disability rating based on individual unemployability (TDIU) granted that month and that he no longer wished to pursue his appeal related to his wrist condition. Despite this report, the Veteran and his representative have submitted no statement containing a request to withdraw the present appeal, as outlined in 38 C.F.R. § 19.55. Furthermore, the Board finds the Veteran has not explicitly, unambiguously, and with a full understanding of the consequences withdrawn his appeal of the denial of a rating in excess of 10 percent for his wrist disability. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). The Board therefore proceeds with consideration of this matter. Entitlement to an evaluation in excess of 10 percent for a right wrist disability is remanded. In the most recent January 2017 Board remand, the Board directed the agency of original jurisdiction (AOJ) to schedule the Veteran for a VA examination to determine the current severity of his right wrist disability. Unfortunately, the May 2017 VA examination addressing the Veteran’s right wrist disability does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In the examination report, the examiner acknowledges that the Veteran experiences increased pain and functional impairment with repeated use over time and regular flare-ups of his wrist arthritis; however, the examiner indicated the additional degree of functional impairment could not be described without resorting to mere speculation. In so stating, the examiner indicated it was not feasible to provide such an estimate without objective evidence to review in the course of a 45-minute examination. In Sharp, the Court of Appeals for Veterans Claims (Court) held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the Veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran’s functional loss due to flares based on all the evidence of record, including the Veteran’s lay information, or explain why she could not do so.” The Board finds that the May 2017 examiner failed to adequately address the functional impairment caused by flares of his wrist condition. She likewise failed to provide an adequate rationale for stating no estimate of functional impairment based on the Veteran’s reports could be provided without resort to mere speculation. As a final observation, the Board also notes that examination report explicitly notes an absence of ankylosis in the Veteran’s left wrist, but no response was provided in this section of the questionnaire pertaining to the Veteran’s service-connected right wrist disability. For these reasons, a remand is necessary to obtain a new examination describing the current severity of the Veteran’s wrist condition. The matters are REMANDED for the following action: Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his right wrist disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all right wrist pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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 should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also 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 symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Pitman, 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.