Citation Nr: 21022517 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 17-23 112 DATE: April 16, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for residuals fracture, left big toe with metatarsalgia of first and second toes (“left foot disability”) is remanded. REASONS FOR REMAND The Veteran testified before the undersigned Veterans Law Judge in a December 2017 video conference hearing. A transcript of that hearing has been associated with the file. In October 2019, the Board denied a rating in excess of 10 percent for left foot disability. In September 2020, the Court granted the August 2020 Joint Motion for Remand (JMR) and vacated the October 2019 denial. The case has been returned to the Board for compliance with the terms of the JMR. In the JMR, the parties agreed that the Board erred in denying the increased rating claim as it failed to provide an adequate statement of reasons or bases for the denial, and improperly addressed favorable evidence that showed potential worsening of symptoms. The parties also agreed that on remand the Board should determine whether a new examination is warranted and or whether an addendum opinion is necessary from the November 2018 examiner, as the examination did not appear to be in compliance with the requirements under Sharp v. Shulkin. The Board has reviewed the November 2018 VA examination report and it is insufficient for rating purposes as flare-ups were reported and the examiner did not provide any information regarding the severity, frequency, or duration of the flare-ups. As such a remand is required in order to obtain an adequate examination for the current severity of the Veteran’s left foot disability. The Board finds that under the terms of the JMR, to which both VA and the Veteran’s representative agreed, a new examination is necessary to decide the claim. The matter is REMANDED for the following action: 1. The AOJ should schedule the Veteran for an examination by an appropriate clinician to determine the current level of severity of his left foot disability. The examiner is asked to perform an examination to assess the current level of severity of the Veteran’s left foot disability. The Veteran’s electronic claims file, to include this remand should be made available to and reviewed by the examiner. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-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 why that is so. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s left foot disability alone and discuss the effect of his left foot disability on any occupational functioning and activities of daily living. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or whether it is due to the examiner not having the knowledge or training. To the extent possible, the examiner is asked to review the November 2018 VA report and provide an addendum opinion that estimates the severity, frequency, and duration of the Veteran’s flare-ups of the left foot, and the degree of functional loss during flare-ups. (Continued on the next page)   All opinions and conclusions must be supported by a complete rationale. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes, 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.