Citation Nr: 21025150 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 14-34 431 DATE: April 27, 2021 REMANDED Entitlement to an initial compensable rating prior to May 31, 2012 for right ankle fusion, and in excess of 10 percent thereafter, is remanded. Entitlement to an initial compensable rating for carpal tunnel syndrome of the right wrist (dominant) prior to January 17, 2015, and in excess of 30 percent thereafter, is remanded. Entitlement to an initial compensable rating for carpal tunnel syndrome of the left wrist (non-dominant) prior to January 17, 2015, and in excess of 20 percent thereafter, is remanded. REASONS FOR REMAND The Veteran had active duty service from August 1990 to September 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decisions dated in January 2011 and May 2011. Specifically, the January 2011 rating decision granted service connection for right ankle fusion, and assigned a noncompensable (0 percent) rating; the May 2011 rating decision granted service connection for bilateral carpal tunnel syndrome, and assigned a noncompensable rating. The Veteran appealed the ratings. The Board remanded this case to the AOJ for additional development in May 2019. Unfortunately, for the reasons explained below, another remand is required. 1. Entitlement to an initial compensable rating prior to May 31, 2012 for right ankle fusion, and in excess of 10 percent thereafter is remanded. The Board is obligated to ensure AOJ compliance with remand directives. Stegall v. West, 11 Vet. App. (1998). The May 2019 remand required the AOJ to obtain a VA examination which included information regarding the Veteran’s flare-ups of the ankle and estimating functional loss during flares. The June 2019 VA examination report does not include this information, and is therefore inadequate for rating purposes. In order to be adequate, VA examiners must also provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The June 2019 examiner documented flare-ups of the Veteran’s ankle, but noted that it was not possible to describe functional loss in terms of range of motion without additional explanation. Notably, the Veteran reported that his ankle pain was worse when walking on uneven surfaces, when it was cold or rainy, or when standing for prolonged periods. Under Sharp, before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation, the examiner must “[E]licit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares[.]” Sharp, 29 Vet. App. at 35. The Board notes that the examiner did not consider the relevant information obtained from the Veteran prior to the examination concluding that an estimation could not be provided. Additionally, the examiner should have elicited additional information, such as how far the Veteran can dorsiflex and plantar flex his right ankle during a flare-up, or whether the flare-up was akin to functional ankylosis. In other words, the examiner did not elicit sufficient information regarding flares in order to estimate the average limitation of range of motion or which rating criteria the Veteran’s disability most closely approximates. See 38 C.F.R. §§ 4.1,4.3, 4.7. Thus, to comply with Sharp, a remand is necessary in order for the examiner to elicit additional information regarding flares and to estimate the Veteran’s functional loss based on all the evidence of record, including, but not limited to, the Veteran’s own statements. 2. Entitlement to an initial compensable rating for carpal tunnel syndrome of the right wrist (dominant) prior to January 17, 2015, and in excess of 30 percent thereafter is remanded. 3. Entitlement to an initial compensable rating for carpal tunnel syndrome of the left wrist (non-dominant) prior to January 17, 2015, and in excess of 20 percent thereafter is remanded. The Veteran underwent VA examinations for his wrist disabilities in November 2010, May 2012, July 2016, June 2019, and December 2020. Each wrist is rated under diagnostic code (DC) 8515, which applies to paralysis of the median nerve. The July 2016 and June 2019 VA examiners diagnosed the Veteran with carpal tunnel syndrome, Dupuytren’s contracture, trigger finger, and degenerative arthritis of the fingers. The Veteran reported more limitations in his fingers than in his wrists, but the Veteran is not presently service-connected for a disability of the fingers. The examiner did not indicate whether any of the diagnoses or symptoms of the fingers was in any way related to the Veteran’s carpal tunnel syndrome or impairment of the median nerve, which could potentially warrant a separate rating under a different DC. The Board is precluded from differentiating between symptoms attributed to a nonservice-connected disability and a service-connected disability in absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181 (1998). Therefore, additional medical evidence is needed before the Board can determine if the Veteran’s disabilities of the fingers may be rated separately as being associated with a service-connected disability. Moreover, the December 2020 VA examiner diagnosed the Veteran with peripheral neuropathy and carpal tunnel syndrome. When asked which upper extremity nerves and radicular groups were affected, the examiner did not respond. Therefore, on remand, clarification is needed regarding which nerves are affected by carpal tunnel syndrome in order to ensure the correct DC is applied. Moreover, the Board notes that the Veteran is service-connected for a cervical spine disability. A July 2016 VA examination indicated that the Veteran had radicular symptoms, including numbness, paresthesias, and dysesthesias in the upper extremities. There is no VA examination of record that differentiates between the symptoms attributable to the Veteran’s carpal tunnel syndrome and his cervical radiculopathy. Rating of the same disability, manifestations, or symptoms under different DCs is prohibited. See 38 C.F.R. § 4.14. Therefore, a medical opinion is required. The matters are REMANDED for the following action: 1. Forward the record, including a copy of this remand, to a suitably qualified examiner for completion of an addendum opinion regarding the Veteran’s carpal tunnel syndrome. Following review of the record, the examiner should respond to the inquiry below. If the examiner determines that he or she cannot respond to the Board’s inquiry as set forth in detail below without examination of the Veteran, the Veteran should be afforded such an in-person examination, or by other means if an in-person examination is not feasible. If an examination is conducted, the examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any occupational impairment due to the Veteran’s service-connected carpal tunnel syndrome. Specifically, the examiner should: (a.) The examiner must review and comment on the Veteran’s prior VA examinations of the wrists, hands, and fingers, and indicate whether any diagnosis noted (e.g., trigger finger, Dupuytren’s contracture, degenerative arthritis, or peripheral neuropathy) is a new and distinct diagnosis (separate and apart from carpal tunnel syndrome, but unrelated), a progression of the carpal tunnel syndrome and the development of a new diagnosis that is related, a correction of an error in the diagnosis of carpal tunnel syndrome, or if the diagnosis has resolved. A complete rationale must be provided for any opinion provided. (b.) The examiner must address whether it is possible to distinguish the symptoms attributable to the Veteran’s service-connected bilateral carpal tunnel syndrome from the symptoms caused by any nonservice-connected disability in the records, to include trigger finger, Dupuytren’s contracture, degenerative arthritis, and peripheral neuropathy. (c.) The examiner must also address whether the symptoms of the Veteran’s carpal tunnel syndrome are distinguishable from the Veteran’s service-connected cervical radiculopathy. (d.) Finally, the examiner must opine whether the Veteran’s carpal tunnel syndrome affects (1) the musculospiral nerve (radial nerve); (2) the median nerve; (3) the ulnar nerve; (4) the musculocutaneous nerve; (5) the circumflex nerve; (6) the long thoracic nerve; (7) the upper radicular group; (8) the middle radicular group; (9) the lower radicular group; or (10) all radicular groups. 2. Schedule the Veteran for an appropriate VA examination to assess the current severity of his service-connected right ankle disability, or by other means if an in-person examination is not feasible. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Specifically, the examiner must test the Veteran’s active motion, passive motion, ranges of motion of the opposing joint, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups during the appeal period beginning in 2010. If this information cannot be obtained or determined, the examiner should give a detailed explanation why. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected ankle disability and discuss the effect of the Veteran’s service-connected disability on any occupational functioning and activities of daily living. (a.) The examiner must review the VA examinations of the Veteran’s ankle dated in May 2012, July 2016, and June 2019, and, if possible, provide an opinion regarding limitation of range of motion during flare-ups. If it is not possible, the examiner must explain why and what, if any, additional information would be needed to provide such an opinion. A fully reasoned explanation for all opinions expressed must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Smith, 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.