Citation Nr: 21008923 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 11-15 260A DATE: February 18, 2021 REMANDED Entitlement to a compensable rating for left femur stress fracture is remanded. Entitlement to a rating in excess of 20 percent for femur stress fracture, impairment left thigh, is remanded. Entitlement to a rating in excess of 10 percent for femur stress fracture, limitation of extension, is remanded. Entitlement to a compensable rating for femur stress fracture, limitation of flexion, left, is remanded. REASONS FOR REMAND The Veteran served in the United States Army from August 2000 to February 2001 and from June 2004 to October 2004. These claims come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In May 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file. In a September 2019 decision, the Board denied increased evaluations for service-connected left femur stress fracture, femur stress fracture, impairment left thigh, femur stress fracture, limitation of extension, and femur stress fracture, limitation of flexion, left. The Veteran appealed the Board's September 2019 denial to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court approved a Joint Motion for Remand filed by both parties to the case, vacated the Board's decision and remanded the issues to the Board for further consideration. 1. The Claims on Appeal are Remanded. With respect to the Veteran's increased rating claims, the Joint Motion for Remand specifically noted that a November 2017 VA examination failed to adequately address functional ability during flare-ups. Specifically, in Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017), the Court clarified that the "critical question in assessing an examination not conducted during a flare is whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." This requires obtaining information about the severity, frequency, duration, precipitating and alleviating factors and extent of functional impairment of flares from the Veterans themselves. The Court further noted that when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, and the examiner states that he or she is unable to offer such an opinion without resorting to speculation, such opinion must be based on all procurable and assembled medical evidence, to include eliciting relevant information from the veteran as to the flare-i.e. the frequency, duration, characteristics, severity, or functional loss, and such opinion cannot be based on the insufficient knowledge of the specific examiner. Accordingly, in light of the above, the AOJ should obtain new VA examinations including assessments of any functional loss during flare ups, or upon repetitive motion. See id.; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Associate any outstanding VA records with the electronic claims file. 2. After all available records have been associated with the claims file the Veteran should be scheduled for a VA examinations to determine the current nature and severity of the service-connected left lower extremity disabilities. The claims file must be made available to the examiner for review in conjunction with the examination, and the examination report must reflect that review was accomplished. All indicated tests should be performed and all findings should be reported in detail. The examiner should describe the nature and severity of all manifestations of the Veteran's left lower extremity disabilities. In this regard, the examiner should record the range of motion observed on clinical evaluation, in terms of degrees of flexion and extension. If there is clinical evidence of pain on motion, the examiner should indicate the degree of flexion and/or extension at which such pain begins. Then, after reviewing the Veteran's complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. With regard to flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding her flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. If the examiner is unable to estimate functional loss in terms in terms of degrees after physical examination and eliciting the pertinent information about the flare-ups above, he or she must explain why and may not rely solely upon his or her inability to personally observe the Veteran's during a period of flare-up. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Finally, the examiner should discuss the impact, if any, as well as a full description of the effects, that the Veteran's left lower extremity disabilities have upon her ability to perform ordinary activities of daily living. The examiner should conduct any appropriate tests and studies in order to determine the nature and extent of the social and industrial impairment attributable to the service-connected back disability. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, 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.