Citation Nr: 21066335 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-16 332 DATE: October 29, 2021 REMANDED Entitlement to a rating in excess of 20 percent for residuals of fracture to left tibia and fibula is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Navy on multiple periods of active service between September 1987 and January 2014. This issue comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The Veteran contends that his left lower leg disability is worse than the rating currently assigned. The Board notes that this matter was remanded for a new VA examination to determine the current severity of the left lower leg disability. The examiner was directed to provide an estimate of functional loss in terms of range of motion due to flare ups based on the Veteran's statements, available medical records, and other relevant sources. Furthermore, the Board requested a medical opinion that addressed whether the Veteran experienced ankylosis of the left lower leg. The Veteran underwent a VA examination in August 2021. The VA examiner noted the Veteran's report of functional loss with flare-ups and repeated use over time. However, no estimate was provided as to any additional limited range of motion during such periods. The explanation was that the Veteran's statements did not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability with flare ups. However, the Board notes that the VA examination report contains numerous references to pain complaints during flare ups. Indeed, the examiner found pain on examination that caused functional loss on plantar flexion and dorsiflexion. In addition, the Veteran has submitted lay statements detailing his left lower leg complaints and its impact of his ability to conduct activities of daily living. This information was not considered by the VA examiner when she rendered her opinions. In effect, the examiner did not render an opinion on repetitive use or flare ups without resorting to speculation. With respect to any additional functional loss during flare-ups of musculoskeletal disability, a VA examiner should offer a flare-up opinion based on estimates derived from information procured from relevant sources, including lay (non-expert) statements. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In Sharp, the Court held a VA examination report to be inadequate because the examiner did not estimate the veteran's functional loss due to flare-ups based on all the evidence of record, including the veteran's lay information, or explain why she could not do so. The Court determined that VA can accept an examiner's statement that an opinion cannot be provided without resort to speculation, but "it must be clear that this is predicated on a lack of knowledge among the 'medical community at large' and not the insufficient knowledge of the specific examiner." Sharp, 29 Vet. App. at 36 (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). In this case, the VA examiner did not provide sufficient information for the Board to accurately rate the disability on appeal. Therefore, the Board will remand for a VA opinion that renders a non-speculative estimate of additional loss of range of motion during a flare-up and with repeated use over time. 38 C.F.R. § 19.9 (a). The matter are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Once the above has been completed to the extent possible, obtain a medical opinion from the VA examiner who conducted the August 2021 VA examination regarding additional functional loss of the left lower leg disability during flare ups from a medical professional with appropriate expertise. The evidence of record must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. If the August 2021 examiner is not available, then obtain the requested opinion from a medical professional with appropriate expertise. If the examiner cannot render an opinion without an examination, then the Veteran should be scheduled for one (or a telehealth interview, if an in-person examination is not feasible). Based on a review of the record, and a new examination if necessary, the examiner must address the following: The examiner must provide an estimate of functional loss in terms of range of motion based on the Veteran's statements, available medical records, and other relevant sources. The examiner must attempt to ascertain information, such as frequency, duration, characteristics, severity, and functional loss (due to pain, weakness, fatigability, or incoordination) regarding any flare-ups by alternative means. The examiner is directed to consider the Veteran's reports of additional functional loss in the August 2021 VA examination report. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. The examiner is not to improperly discount the Veteran's lay statements or rely solely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale must be provided for all opinions presented. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional 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). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.