Citation Nr: 21041874 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-18 989 DATE: July 10, 2021 ORDER A January 2020 Board decision granted an initial rating of 10 percent for chronic sinusitis, prior to December 4, 2014; no further increased rating claim is properly before the Board and the appeal is denied. Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome with gout (hereinafter right knee disability) is denied. Entitlement to an initial rating of 20 percent, but no higher, for right knee instability is granted, effective May 29, 2013. REMANDED Entitlement to an initial compensable rating for residuals of right hand fractured fifth metacarpal (hereinafter right hand disability) is remanded. FINDINGS OF FACT 1. The Veteran expressly limited his appeal before the Board to be whether an earlier effective date of May 29, 2013 for the award of a 10 percent rating for chronic sinusitis was warranted. 2. A January 2020 Board decision granted an initial 10 percent rating for chronic sinusitis, effective May 29, 2013; this was a grant of the full benefits sought on appeal. 3. Throughout the appeal period, the Veteran's right knee disability has been manifested by flexion to, at worse, 60 degrees, and extension to, at worse, 0 degrees. 4. Throughout the appeal period, the Veteran's right knee has been manifested by moderate instability. CONCLUSIONS OF LAW 1. A January 2020 Board decision granted an initial rating of 10 percent for chronic sinusitis, prior to December 4, 2014; no further increased rating claim is properly before the Board and the appeal is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.97, Diagnostic Code 6513 2. The criteria for an initial rating in excess of 10 percent for right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5017-5260. 3. The criteria for an initial rating of 20 percent, but no higher, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1976 to April 1979 and from January 1982 to September 1999. The matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2014 and March 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the claims file. A January 2020 Board decision denied the claims for an initial compensable rating for right hand disability and an initial rating in excess of 10 percent for right knee disability. The Board also granted an initial rating of 10 percent for chronic sinusitis prior to December 4, 2014 and an initial rating of 10 percent for right knee instability. The Veteran appealed these claims to the United States Court of Appeals for Veterans Claims (Court). In March 2021, pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated the Board's decision regarding the above issues and remanded the matters to the Board for action consistent with the JMPR. Accordingly, the matters have been returned to the Board. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Fenderson v. West, 12 Vet. App. 119, 12627 (1999). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Chronic Sinusitis Procedurally, an August 2014 rating decision granted service connection for sinusitis and assigned a noncompensable rating effective May 29, 2013. In a November 2014 notice of disagreement (NOD), the Veteran indicated that he was seeking a 10 percent rating for his sinusitis. A March 2017 rating decision, granted a 10 percent rating for his sinusitis, effective December 4, 2014. The RO specifically noted that because the Veteran indicated on his NOD that a 10 percent rating would satisfy his pending appeal, no further action would be taken on the issue. In response, the Veteran filed a March 2017 NOD indicating that he disagreed with the effective date for his 10 percent rating for his sinusitis and stated that he sought an effective date of May 29, 2013. In an August and September 2017 correspondence, the Veteran clarified that he was not seeking a higher rating for his sinusitis at the time but was seeking an effective date of May 29, 2013 for his 10 percent rating. At the August 2019 Board hearing, the Veteran and his representative requested an earlier effective of May 29, 2013 for his award of a 10 percent rating. During the hearing, the Veteran's representative affirmatively stated that there was no contention for a rating in excess of 10 percent. In a January 2020 decision, the Board noted that at the August 2019 Board hearing, the Veteran confirmed that he was only seeking an earlier effective date for his 10 percent rating and that he was not seeking any further increased rating for his chronic sinusitis. After reviewing the evidence of record, the Board granted an initial 10 percent rating, effective May 29, 2013. In a March 2021 JMPR, the parties indicated that the Board's January 2020 decision found that the Veteran had withdrawn his claim for a rating in excess of 10 rating from December 2014 and a rating in excess of 30 percent rating from April 2017 for his service-connected sinusitis. The JMPR stated that the Board failed to provide discussion of whether the withdrawal was proper and effective. A Court Order granting a JMR confers a right to substantial compliance with the remand orders. Forcier v. Nicholson, 19 Vet. App. 414, 425-26 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). Yet, the Board's obligations to comply with a JMR which violates applicable precedent should not be assumed. See generally Butts v. McDonald, 28 Vet. App. 74 (2016) (en banc). Respectfully, the Board finds that entitlement to a rating in excess of 10 percent for sinusitis for the period in question is not for further review but based on limitation of appeal and not due to a withdrawal after perfection of that appeal. The issue on appeal was limited to the nature, scope and extent of that appeal. Questions and clarifications as to the nature, scope and extent of the nature of the appeal and the benefit sought on appeal are part of undersigned's duties at a hearing. Throughout the appellate period, the Veteran expressly limited his appeal and specified that the nature of disagreement was the assigned effective date of his 10 percent rating. See April 2017 NOD. On numerous occasions during the appeal the Veteran clarified that he was not seeking a rating in excess of 10 percent for his sinusitis. Specifically, during the August 2019 Board hearing, the Veteran and his representative was provided an opportunity to set forth their contentions at which time they indicated that the Veteran sought an earlier effective date of May 29, 2013 for his award of a 10 percent rating and that there was no contention for a rating in excess of 10 percent during the appellate period. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Accordingly, the Board only considered what the specific contentions were on appeal, and granted the full benefits sought on appeal. Thus, any further discussion as to whether a rating in excess of 10 percent prior to April 2017, and a rating in excess of 30 percent thereafter is not warranted. The Board finds no additional duty to discuss whether this was a knowing withdrawal and the procedural history and contentions were wholly distinct from DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Right Knee Disabilities VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss but is just one fact to be considered when evaluating functional impairment). The Board notes that the Veteran is in receipt of an initial 10 percent rating for his right knee disability pursuant to Diagnostic Code 5260. In a June 2019 rating decision, the RO recharacterized the Veteran's right knee disability to include a diagnosis of gout and continued a 10 percent rating pursuant to Diagnostic Code 5017-5260, effective June 20, 2019. The Board further notes that the Veteran is in receipt of an initial 10 percent rating for his right knee instability pursuant to Diagnostic Code 5257. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, gout was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5017. Under this diagnostic code, gout was rated under the criteria for evaluating rheumatoid arthritis under Diagnostic Code 5002. Under Diagnostic Code 5002, a 20 percent evaluation is warranted where there was one or two exacerbations a year in a well-established diagnosis. A 40 percent evaluation is warranted for symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. A 60 percent evaluation applies where the evidence demonstrates symptomatology less than the criteria for 100 percent, but with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year, or a lesser number over prolonged period. Finally, a 100 percent evaluation is warranted for constitutional manifestations associated with active joint involvement, totally incapacitating. 38 C.F.R. § 4.71a, Diagnostic Code 5002. Diagnostic Code 5002 further provides that chronic residuals, such as limitation of motion or ankylosis, are to be rated under the appropriate diagnostic codes for the specific joints involved. Id. A note to Diagnostic Code 5002 states that ratings for an active process will not be combined with ratings for chronic residuals. Instead, the higher of the two evaluations should be assigned. As of February 7, 2021, under the amended criteria, gout is rated as degenerative arthritis, Diagnostic Code 5003. Under Diagnostic Code 5003, arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint involved. When the limitation is noncompensable under those codes, however, a 10 percent rating is warranted for limitation of motion of the joint, provided that limitation of motion is confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. Although diseases under Diagnostic Codes 5013 through 5024 are to be rated as degenerative arthritis, Note (2) to Diagnostic Code 5003 provides that the 20 percent and 10 percent ratings based on X-ray findings with no limitation of motion of the joint or joints will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of flexion of the leg is rated under Diagnostic Code 5260. The Board notes that this diagnostic code was not changed during the appellate period. Under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Prior to February 7, 2021, instability of the knee was rated under Diagnostic Code 5257, which provided ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Effective February 7, 2021, Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. As it pertains to recurrent subluxation or instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. As it pertains to patellar instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. The Veteran was afforded a VA examination in June 2014, in which he was diagnosed with bilateral knee degenerative joint disease. The Veteran reported having difficulty walking during flare-ups. Upon examination, the right knee showed flexion to 80 degrees, with pain beginning at 75 degrees. No limitation of extension was noted. Repetitive-use testing with three repetitions revealed right knee flexion to 70 degrees and no limitation of extension. The examiner noted that the Veteran lost an additional 10 degrees on flexion during flare-ups and repeated use over time. He further indicated that the Veteran had tenderness or pain to palpation. Joint stability testing was not performed. No reduction in muscle strength, patellar subluxation/dislocation, tibial and/or fibular impairment, or ankylosis was noted. The examiner indicated that the Veteran had a meniscal tear of the left knee and underwent a meniscectomy. The examiner noted frequent episodes of joint pain and joint effusion of the bilateral knees. The examiner further noted that the Veteran reported occasional use of a knee brace due to pain. An August 2015 private treatment record indicated that the Veteran reported pain, decreased range of motion, popping and clicking, and pain climbing or ascending stairs. Upon examination, his right knee showed active flexion to 90 degrees and greater passively. No presence of fractures or dislocations was noted. A February 2016 VA treatment record noted that the Veteran reported that his right knee pain was worsening. It was also noted that his right knee had some effusion and tenderness. In April 2017, the Veteran reported having flare-ups that cause pain and functional limitations. The Veteran submitted a Non-Degenerative Arthritis Disability Benefit Questionnaire (DBQ) completed by a private physician in March 2019 for his gout. The examiner indicated that the Veteran's condition causes two non-incapacitating exacerbations per year. The examiner further indicated that the Veteran's gout was not manifested by weight loss or anemia productive of severe impairment of health. The Veteran was afforded a VA examination in June 2019, in which he was diagnosed with gout. The Veteran reported having gout flare-ups twice a year that cause hot inflammation and swelling. The examiner indicated that the Veteran's condition required continuous use of medication. The examiner noted that the Veteran had not lost weight or had anemia due to his condition. The examiner indicated that the Veteran's knee pain and decreased range of motion was attributable to his gout. The examiner also indicated that the Veteran did not have incapacitating or non-incapacitating exacerbations. The Veteran underwent another VA examination in June 2019. The Veteran reported having flare-ups. Upon examination, the Veteran's right knee showed active and passive flexion to 120 degrees and extension to 0 degrees, with pain. Objective evidence of pain with weight bearing and localized tenderness or pain on palpation was noted. No additional loss of function or range of motion was noted after repetitive-use testing. The examiner noted that while the Veteran was not being examined immediately after repetitive use over time or during a flare-up the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and during flare-ups. The examiner opined that pain significantly limits the Veteran's bilateral knee functional ability with repeated use over a period of time and during flare-ups. He described the Veteran's functional loss in terms of range of motion, noting flexion to 100 degrees and extension to 0 degrees during flare-ups, and flexion to 120 degrees and extension to 0 degrees during repetitive use over a period of time. No muscle atrophy, ankylosis, recurrent subluxation, recurrent effusion, lateral instability, meniscal conditions, or patellar dislocation was noted during the examination. Joint stability testing revealed normal results. During the August 2019 Board hearing, the Veteran reported having constant knee pain as well as instability and giving way. In a December 2020 correspondence, the Veteran reported having right knee weakness, popping, grinding, and soreness. He reported having "acute instability" and having to wear a brace on his knee "to guard against it coming out of place." The Veteran also indicated that during flare-ups his right knee flexion is limited between 15 to 30 degrees. In March 2021, the Veteran submitted statements from his wife and friend noting reports of right knee instability, pain, and stiffness. In an April 2021 correspondence, the Veteran reported having right knee instability requiring the use of a brace. The Board has considered whether rating the Veteran's rheumatoid arthritis manifestations under Diagnostic Code 5002 as an active process is appropriate. However, the combined rating for the Veteran's rheumatoid arthritis manifestations is 40 percent. To achieve a higher evaluation under Diagnostic Code 5002, there would need to be evidence of record of weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or lesser number over prolonged periods. However, there is no evidence in the medical records that the Veteran has had such symptoms or has had such exacerbations. Therefore, the Board will continue to rate the Veteran's rheumatoid arthritis manifestations as chronic residuals/limitation of motion under the appropriate diagnostic codes for the specific joints involved, as it is more advantageous to the Veteran. In evaluating the medical evidence of record, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his right knee disability pursuant to Diagnostic Code 5260. Specifically, for the entire appellate period, the Veteran's right knee disability has been manifested by flexion to, at worse, 60 degrees. This finding results in a noncompensable rating; however, painful motion of the knee allows consideration of functional loss due to painful motion to be rated at least the minimum compensable rating for a particular joint. See 38 C.F.R. § 4.59. Here, because the Veteran demonstrated painful motion of the knee, the minimum compensable evaluation has been assigned due to noncompensable limitation of flexion with arthritis. The record does not show that a rating higher than 10 percent is warranted for right knee limitation of flexion at any time. The Veteran is noted to have functional loss associated with his right knee, but the record does not indicate that his function loss has reduced his flexion to 30 degrees or less, which is required for the next higher rating. 38 C.F.R. §§ 4.40, 4.59; DeLuca, 8 Vet. App. 202. As a result, the 10 percent rating for his right knee disability adequately compensates him for the extent of his function loss due to pain, flare-ups, and repeated use over a period of time. Moreover, after a careful review of the evidence, and affording the Veteran the benefit of the doubt, the Board finds that an initial 20 percent rating, but no higher, is warranted for right knee moderate lateral instability pursuant to Diagnostic Code 5257. The Board finds that the Veteran's right knee lateral instability is more accurately described as moderate under the earlier rating criteria effective prior to February 7, 2021. Here, the Veteran has reported that he occasionally wears a knee brace, and experiences knee buckling, locking, effusion, and weakness. Crucially, while there has been no objective evidence of right knee instability on stability testing and the Veteran's lay reports of instability relay symptoms more closely approximating moderate right knee instability as his symptoms have not been shown to constitute severe recurrent instability as contemplated under the 30 percent rating criteria. With respect to a rating in excess of 20 percent under the revisions to Diagnostic Code 5257 effective from February 7, 2021, such would, at a minimum, require a disability manifested as recurrent subluxation or lateral instability that resulted in an unrepaired or failed repair of a complete ligament tear or patellar instability manifested as a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair. Such manifestations are not shown in the reports from the VA examinations or by any other clinical evidence, nor is it claimed that such manifestations have occurred. In short therefore, a rating in excess of 20 percent cannot be assigned. Lastly, the Board has also considered whether higher ratings or additional separate ratings are warranted under other diagnostic codes at any time during the appellate period for the Veteran's right knee. However, the evidence of record does not support higher or additional ratings. In this regard, the evidence of record shows normal extension and the Veteran has not been diagnosed with ankylosis, genus recurvatum, or nonunion or malunion of the tibia and fibula. Therefore, the Board finds that Diagnostic Codes 5256, 5261, 5262, and 5263 are not applicable. Additionally, while symptoms of frequent locking and effusion have been noted, the Veteran has not been diagnosed with right knee dislocation of the semilunar cartilage, meniscus tear, or removal of semilunar cartilage. Specifically, the medical records indicate that the Veteran's left knee had a meniscal tear and had a meniscectomy in 2003. The Board notes that the Veteran's right knee symptoms of locking and effusion are contemplated in his evaluations under Diagnostic Code 5257 and 5260. The Board is cognizant that the Court has held that separate ratings may be provided when the facts support it, but here, considering all the medical and lay evidence, the ratings assigned contemplate the overall functional impact of this disability and its manifestations. Lyles v. Shulkin, 29 Vet. App. 107 (2017). Accordingly, a separate rating under Diagnostic Code 5258 for dislocated meniscus or Diagnostic Code 5259 for symptomatic cartilage removal cannot be granted. See 38 C.F.R. § 4.14. In reaching its conclusions in the instant case, the Board acknowledges the Veteran's belief that his right knee disabilities warrant a higher rating. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of his disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disability. Accordingly, the Board affords the VA and private examinations with greater probative value. In sum, the Board finds that an initial rating in excess of 10 percent for right knee disability is not warranted. Additionally, the Board finds that an initial rating of 20 percent, but no higher, for right knee instability is warranted. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107(b). REASONS FOR REMAND Increased Rating for Right Hand Disability The record reflects the right-handed Veteran suffers from flare-ups that impact the function of his hand. Specifically, he has reported that he experiences pain and difficulty flexing and closing his right hand. See June 2014 VA examination report; August 2019 Board hearing transcript. Although the Board regrets the additional delay, remand is required for further development and adjudicative action. While the record contains a contemporaneous VA examination, the examination does not comply with the requirements in Sharp v. Shulkin, as the examiner failed to properly address and estimate the functional loss and decreased motion the Veteran experiences during flare-ups and with repeated use over time. 29 Vet. App. 26, 35 (2017). Thus, a remand is required to afford the Veteran an adequate examination that fully addresses the Veteran's contentions. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for an examination to determine the current severity of his service-connected right hand disability. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, precipitating and alleviating factors, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repetitive use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due solely to his right hand condition and discuss the effect on any occupational functioning. 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 the examiner (does not have the knowledge or training). Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Robinson, 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.