Citation Nr: 21066499 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 14-34 528 DATE: November 1, 2021 REMANDED Entitlement to a compensable rating for a left-hand disability is remanded. REASONS FOR REMAND The Veteran had active service in the U.S. Marine Corp from July 1975 to August 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). This matter was previously before the Board in September 2017 and August 2019 and was remanded for development. While the Board regrets the further delay, for the reasons stated below, additional remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a compensable rating for a left-hand disability is remanded. In March 2019, the Board remanded the Veteran's claim to obtain neurological and muscle injury examinations to determine the current severity of the Veteran's service-connected left-hand disability. In the remand directive, the Board advised that the examiner should specifically address the Veteran's complaints of numbness and spasms in his left hand. Two VA examinations were conducted in December 2019. In a peripheral nerve examination, a VA examiner provided a sole diagnosis of carpal tunnel syndrome. Because the examiner did not offer an opinion as to whether the carpal tunnel was related to the Veteran's service-connected left-hand disability, an addendum opinion was sought by the AOJ. Subsequently, two VA examiners have concluded that the Veteran's diagnosis of carpal tunnel syndrome is less likely than not related to the left-hand injuries sustained by the Veteran during service. The issue of entitlement to service connection for carpal tunnel syndrome is currently on appeal and not before the Board at this time. An examination of the hand/finger was also performed in December 2019. At this time, another VA examiner diagnosed the Veteran with limitation of motion to the little finger of the left hand and arthritis. The examiner noted that arthritis is a new diagnosis that is based on x-rays performed in 2009, which showed degenerative joint disease of the PIP joint of the fifth digit on the left hand. The examiner further concluded that the Veteran's arthritis is directly related to his service-connected left-hand disability. In this evaluation, the VA examiner noted that the examination was not being conducted during a flare up or with repeated use over time. She further concluded that pain, weakness, fatigability, or incoordination does not significantly limit the Veteran's functional ability during flare ups or with repeated use. She elaborated that there is no basis to offer additional losses of function or motion during flare ups based on her review of the record. However, the examiner failed to provide a rationale for her opinion. She also failed to specifically address the Veteran's reports that flare ups occur from increased use or heavy lifting and that they cause increased pain, burning, and itching. The AOJ sought clarification and a new VA examiner evaluated the Veteran in September 2021. This examiner noted that the Veteran claims to have muscle spasms and increased pain with numbness during flare ups, but the examiner concluded that these complaints could not be evaluated on examination. The examiner elaborated that the Veteran's complaints are subjective and noted that there was no objective evidence on examination that the Veteran has functional loss due to flare ups. This assessment is inconsistent with the Court of Appeals for Veterans Claims' (Court) holding in Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). In Sharp, the Court held that it is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examination was not performed during a flareup. Id. at 26. Instead, the Court held that VA examiners must do all that reasonably can be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation, including eliciting information regarding frequency, duration, characteristics, severity, or functional loss. Sharp v. Shulkin, 29 Vet. App. 26 (2017). An examination that does not make a proper evaluation of the Veteran's limitations during flare-ups is inadequate. Id. Based on the foregoing, remand is warranted to obtain an addendum opinion that adequately addresses the Veteran's functional loss during flare ups. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any outstanding VA treatment records. 2. Obtain an addendum opinion from an appropriate VA examination to assess the nature and severity of his left-hand disability. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. 3. The examiner is asked to address the frequency, duration, characteristics, severity, and functional loss during periods of flare-ups of the Veteran's left-hand. The examiner should describe the additional loss in degrees, if possible. The examiner should offer his or her opinion based on estimates derived from information procured from relevant sources within the claims file, including the Veteran's statements, VA examination reports, and treatment records. If the requested opinion regarding additional loss in degrees of motion cannot be provided without resorting to speculation, the examiner should explain why. 4. The examiner is also asked to determine whether symptoms associated with the service-connected left-hand disability can be differentiated from symptoms associated with the non-service-connected carpal tunnel syndrome. 5. After the above development has been completed, the AOJ should re-adjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.