Citation Nr: 22012219 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 13-00 135A DATE: March 2, 2022 REMANDED A rating in excess of 20 percent for degenerative joint disease of the left shoulder is remanded. A rating in excess of 10 percent for a status post left ankle fracture is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1980 to January 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision. In March 2016, the Veteran testified at a Board hearing. A transcript of that hearing has been associated with the claims file. In July 2020, the United States Court of Appeals for Veterans Claims (Court) vacated the portion of a March 2019 Board decision denying a disability rating higher than 20 percent for DJD of the left shoulder and a disability rating higher than 10 percent for a status post left ankle fracture and remanded the case for action consistent with the July 2020 Joint Motion for Partial Remand (JMPR). In January 2021, September 2021, and November 2021, the Board remanded these matters for additional development. While the Board regrets further delay, the Veteran's claims must again be remanded for additional development. 1. A rating in excess of 20 percent for degenerative joint disease of the left shoulder is remanded. A VA addendum opinion was obtained in December 2021 from a nurse practitioner. The examiner states, "A flare-up is intermittent and significantly worsening requiring treatment or intervention such as narcotics, physical therapy, hospitalization, or physician prescribing bed rest." The examiner further goes on to note, "The C & P Exam on 10/12/16 describes a flare up as 'Daily intermittent pain with overhead activities lasting several hours' which also does not fit the definition of a flare up and is too old of a document to support current flares." Thus, the examiner concludes, "it is less likely than not that the vet does have flare ups, therefore, this provider cannot provide an estimate of decreased ROM during flare ups since occurrence of flare ups are not supported in the C file." The Board does not find the December 2021 nurse practitioner's conclusions persuasive for several reasons. First, the Court, in its July 2020 JMPR, found the Veteran experiences flare-ups and noted instances from the record where the Veteran has experienced flare-ups. Secondly, it is unclear where the nurse practitioner obtained their definition of a flare-up as they did not provide any reference or rationale for their opinion and conclusion. They also do not explain why the October 2016 physician's definition of a flare-up is incorrect. The October 2016 physician described the Veteran's flare-ups, in the Veteran's own words, to consist of "daily intermittent pain with overhead activities lasting several hours." The Board notes the Court has found a flare up to be defined as "a sudden increase in symptoms of a latent or subsiding disease." Crowe v. Brown, 7 Vet. App. 238 (1994). Here, the nurse practitioner essentially imposes a higher standard with their use of the word "significantly." The Board finds the definition of a flare-up as noted in Crowe is reflected by the October 2016 physician's findings. Finally, although the nurse practitioner found the October 2016 examination is too old of a document to support current flare-ups, the nurse practitioner did not interview the Veteran; thus, they cannot conclude the Veteran does not experience "current" flare-ups. As such a remand is required to obtain a new opinion consistent with the Board's November 2021 remand orders. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). 2. A rating in excess of 10 percent for a status post left ankle fracture is remanded. A VA addendum opinion was obtained in December 2021 from a nurse practitioner. The examiner states, "A flare-up is intermittent and significantly worsening requiring treatment or intervention such as narcotics, physical therapy, hospitalization, or physician prescribing bed rest." The examiner further notes, "The C & P Exam on 10/12/16 describes a flare up as 'Daily intermittent pain with prolonged standing and walking lasting several hours' which also does not fit the definition of a flare up and is too old of a document to support current flares." Thus, the examiner concludes, "it is less likely than not that the vet does have flare ups, therefore, this provider cannot provide an estimate of decreased ROM during flare ups since occurrence of flare ups are not supported in the C file." The Board finds the above opinion deficient for the same reasons as the shoulder opinion. As such a remand is required to obtain a new opinion consistent with the Board's November 2021 remand orders. See Stegall, supra. The matters are REMANDED for the following action: 1. Other than the nurse practitioner who completed the December 2021 opinions, obtain an addendum opinion from a qualified clinician. Whether an additional examination is needed is left to the discretion of the clinician. 2. The clinician should provide an estimate, if possible, for both the left shoulder and left ankle, of the additional impairment due to flare-ups based on the evidence of record, including the October 2016 VA examinations. If it is not possible to provide specific measurements 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). ROBERT N. SCARDUZIO Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.