Citation Nr: 21061850
Decision Date: 10/05/21	Archive Date: 10/05/21

DOCKET NO. 18-55 255
DATE: October 5, 2021

REMANDED

Entitlement to a rating in excess of 10 percent for residuals of a fractured left hand is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from February 1981 to February 1985.  

This matter comes before the Board on appeal from a May 2015 rating decision by an agency of original jurisdiction (AOJ) of the Department of Veterans Affairs (VA).  

In August 2020, the Board denied entitlement to a rating in excess of 10 percent for a left hand and thumb disability.  The Veteran appealed the August 2020 Board decision to the United States Court of Appeals for Veterans Claims (CAVC).  

In May 2021, the CAVC granted a Joint Motion for Remand (JMR) submitted by the Veteran and the Secretary of VA (Parties), vacated the August 2020 Board decision, and remanded this matter to the Board for compliance with the JMR instructions.  The Parties agreed that the Board erred by relying on an inadequate medical examination, as the August 2015 stated that she was "unable to opine without speculation" as to the Veteran's limitations after repeated use over time, and the July 2019 examiner provided a similar answer in response to the Veteran's limitations during "flare-ups."  These opinions are inadequate because they reflect a deficiency in the examiner's own knowledge and not a deficiency in the knowledge of the medical community at large.

Accordingly, remand is warranted to comply with the terms of the May 2021 JMR and to secure an adequate examination and opinion as to functional loss after repeated use over time and during flare-ups.

The matters are REMANDED for the following action:

Schedule the Veteran for an examination to determine the nature and severity of his left hand disability.  The claims file should be made available to and should be reviewed by the examiner.  All findings should be reported in detail.  

In assessing the severity of the Veteran's left hand disability, the examiner should provide an opinion describing functional impairment of the Veteran's left hand disability due to flare-ups and after repetitive use over time, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional limitation of motion.  If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment.  The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation.  

A complete rationale should be given for all opinions and conclusions expressed.  If the examiner cannot provide either or both opinions without resorting to speculation, it is essential that the examiner explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).  If any additional testing is necessary to render an opinion, such testing should be accomplished.

 

 

S. BUSH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D.M. Badaczewski, 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.