Citation Nr: 21002228 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 13-12 279 DATE: January 13, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for left foot arthritis with hammertoe of the second toe is remanded. Entitlement to an initial rating in excess of 10 percent for right foot arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1971 to November 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In October 2017, the Board remanded the case for additional development and, in November 2018, denied initial ratings in excess of 10 percent for the Veteran’s bilateral foot disabilities. Thereafter, he appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court) and, in September 2019, the Court granted a Joint Motion for Remand (JMR) that vacated and remanded the Board’s November 2018 decision. In December 2019, the Board remanded the case for additional development in accordance with the JMR, and it now returns for further appellate review. 1. Entitlement to an initial rating in excess of 10 percent for left foot arthritis with hammertoe of the second toe. 2. Entitlement to an initial rating in excess of 10 percent for right foot arthritis. As previously noted, in September 2019, the Court granted a JMR that vacated the Board’s November 2018 denial of higher initial ratings for the Veteran’s bilateral foot disabilities. As relevant, the parties to the JMR noted that, in reaching such determination, the Board relied, in part, on an inadequate VA examination conducted in November 2017. Here, the parties noted that the Board erred when it failed to ensure compliance with its previous remand instructions. In this regard, the parties observed that the Board remanded the claims in October 2017 in order to afford the Veteran a VA examination that complied with the Court’s holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). However, despite the Board’s specific directives, the VA examiner did not adequately address the relevant inquiries. Thus, the parties found that there had not been substantial compliance with the October 2017 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the Board remanded the claims in December 2019 in order to afford the Veteran another VA examination that complied with the Board’s October 2017 remand directives. Such examination was conducted in January 2020; however, as the examiner failed to comply with all of the December 2019 Remand directives, addendum opinions were obtained in August 2020 and October 2020. Nonetheless, as such still fail to fully address all of the Board’s inquiries, another remand is necessary in order to obtain afford the Veteran another VA examination. See Stegall, supra. In this regard, while the examiner indicated in the August 2020 addendum opinion that, despite the Veteran’s reports of pain, he had full range of motion on examination. However, she did not address whether such was based on active or passive motion, on weight-bearing, or nonweight-bearing, or provide range of motion measurements in each category. The examiner also did not offer an opinion as to the range of motion findings from the April 2012 and April 2016 VA examinations. Rather, she only indicated that she was not provided with the former examination and could not offer an opinion as to the latter examination as she did not conduct or witness it. Finally, the examiner did not adequately address the functional limitations caused by flare-ups and repetitive use, to include whether such resulted in additional limitation in range of motion, expressed, if possible, in terms of degrees. In this regard, she stated that the Veteran did not report functional limitations caused by flare-ups or repetitive use, but also noted that he described experiencing flare-ups 5 to 6 times a year where he could not walk. Thus, a remand is necessary in order to ensure compliance with the Board’s prior remand directives and obtain another VA examination addressing such matters. The matters are REMANDED for the following action: Afford the Veteran an appropriate VA examination conducted by a clinician other than the January 2020 VA examiner to determine the nature and severity of his left foot arthritis with hammertoe of the second toe and right foot arthritis. The record, to include a copy of this Remand, must be made available to the examiner, and all indicated tests and studies should be accomplished. (A) The examiner should address the current nature and severity of all manifestations of the Veteran’s left foot arthritis with hammertoe of the second toe and right foot arthritis. (B) The examiner should record the range of motion of the left and right foot observed on clinical evaluation in terms of degrees. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-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. (C) The examiner is requested to review the VA examinations containing range of motion findings for the Veteran’s left and right foot disabilities conducted in April 2012 and April 2016. In this regard, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. (D) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. With specific regard to flare-ups, if Veteran endorses experiencing them, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (E) The examiner also should comment upon the functional impairment resulting from the Veteran’s right and left foot disabilities. A rationale should be provided for any opinion offered. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Breckenridge, 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.