Citation Nr: 21007315 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-25 918 DATE: February 9, 2021 REMANDED Entitlement to an increased rating in excess of 10 percent for status post fracture with scar of the right thumb with degenerative joint disease is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from October 1984 to July 2004. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). In May 2017, the Veteran testified a Board videoconference hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the electronic claims file. The Board notes that during the appeal period the Veteran filed a supplemental claim for degenerative joint disease in a second joint of his right thumb. However, the AOJ did not accept the claim as it was encompassed by the Veteran’s current appeal for an increased rating. This issue will be addressed in the remand instruction. Entitlement to an initial rating in excess of 10 percent for status post fracture with scar of the right thumb with degenerative joint disease is remanded. The Veteran and his representative contend that the Veteran’s right thumb disability was rated without imaging from a March 2015 film of the Veterans right thumb. They further maintain that the Veteran’s abnormal range of motion was not adequately documented in the Veteran’s examinations. When conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). In the event an examination is not conducted during a flare-up, the "critical question" in assessing the adequacy of the examination was "whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." Id. at 16 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). The Court requires range of motion findings be reported for any service-connected musculoskeletal disability rated on such criteria (1) range of motion testing for pain on active motion, passive motion, weight-bearing, nonweight-bearing, and, if possible, with the range of the opposite undamaged joint, as per Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and (2) during a flare-up of symptoms, even if estimated by the examiner, as per Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Veteran was provided two VA medical examinations throughout the appeal period. The VA examination in March 2015 noted that the Veteran had flare-ups in his right thumb joint, however the examiner did not adequately address this issue. The Veteran was provided with his second VA medical examination in February 2017. The February 2017 examiner did not address the Veteran’s flare-ups. Regarding the Veteran’s contention of the lack of use of the film images of his right thumb joint, the February 2017 examiner included a summary of the film taken of the Veteran’s right thumb from March 2015, however, did not have the new film taken of the joint. In light of above, the record for review by the Board remains inadequate for the purpose of readjudicating the Veteran’s appeal and must be remanded for further development. The matters are REMANDED for the following action: 1. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and severity of the Veteran’s service-connected degenerative joint disease of the right thumb. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. The examiner should conduct any testing and imaging necessary to provide an opinion. (a.) Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing. 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 the basis for this decision. (b.) The examiner should determine whether the Veteran’s degenerative joint disease of the right thumb is manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. These determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. (c.) The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran’s range of motion, the examiner should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. (d.) The examiner should address whether the functional impact of the Veteran’s right thumb disability approximates amputation of the right thumb. 2. The examiner is also asked to opine as to whether any disability other than degenerative joint disease impacts the function of the Veteran’s right thumb. Morgan v. Wilkie, 31 Vet. App. 162 (2018) (holding that VA’s duty to maximize benefits requires it to first exhaust all schedular alternatives for rating a disability before the extraschedular analysis is triggered.) 3. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. W. Morgan, 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.