Citation Nr: 21066717 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 19-20 023 DATE: November 2, 2021 REMANDED Entitlement to a compensable rating for right hand strain, status post fourth finger fracture is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1993 to July 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge in October 2021. 1. Entitlement to a compensable rating for right hand strain, status post fourth finger fracture is remanded. The Veteran seeks a compensable rating for his right - hand disability. In his June 2019 VA Form 9 Substantive Appeal Form he contends that VA did not consider functional loss he experiences due to right hand pain and as a result of flareups. At his October 2021 virtual Board hearing, the Veteran also testified that his right - hand disability had worsened since his last VA examination. The Veteran's right hand was last evaluated by VA in November 2019. The Board finds that the November 2019 VA examination is inadequate, and that remand is warranted for a VA examination. Specifically, although the Veteran reported moderate to severe hand flareups which last all day and result in the inability to hold or grip anything, the VA examiner failed to offer an opinion regarding the Veteran's functional loss during flareups. The examiner noted that the Veteran was not experiencing a flare-up at the time of the examination. Due to this, they indicated an inability to comment on, without resorting to mere speculation, whether pain, weakness, fatigability, or incoordination significantly limit the Veteran's functional ability with flare-ups, without resorting to speculation. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court noted that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Sharp, 29 Vet. App. at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 10. Recently, in Chavis v. McDonough, an April 2021 precedential panel decision, The Court of Appeals for Veterans Claims (CAVC) also held that the requirement of ankylosis can be met with evidence of the functional equivalent of ankylosis (i.e., functional immobility of the joint) during a flare-up. The Board finds that the November 2019 medical opinion is insufficient for adjudicative purposes under the Court's guidance in Sharp and Chavis because there is no evidence that the examiner assessed the Veteran's lay statements regarding functional limitations including his claims of functional immobility due to right hand and finger flareups. The Board finds that remand for a new medical opinion that fully assesses the Veteran's contentions of additional functional limitations including immobility due to flareups throughout the appeals period and offers a finding as to whether it rises to the level of functional ankylosis is warranted. The matters are REMANDED for the following action: 1. With any required assistance from the Veteran, update the claims file with any relevant VA and private treatment records. If any outstanding records cannot be obtained, the Veteran should be notified of such. 2. After the above development is completed, the AOJ should afford the Veteran a new VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected right - hand disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. In order to comply with Chavis v. McDonough, No. 18-2928 (April 16, 2021), the examiner is asked to specifically opine whether or not the Veteran's description of incapacity and inability to grip or pick things up during right hand flareups is the functional equivalent of ankylosis. The AOJ should ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as 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. Furthermore, if any opinion cannot be offered without resort to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced mobility and functional loss due to pain during right hand flares or repetitive use. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Alexander 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.