Citation Nr: 22019489 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 18-37 401 DATE: April 1, 2022 REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected status post left ankle sprain with calcaneal spurs is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1981 to September 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of background, the Board previously denied the Veteran's claim in a July 2019 decision. The Veteran appealed the Board's July 2019 decision to the United States Court of Appeals for Veterans Claims (Court). A February 2021 Court order vacated and remanded the issue on appeal pursuant to a February 2021 Joint Motion for Partial Remand (JMPR). Specifically, the parties agreed that a remand was warranted to provide an addendum medical opinion that adequately addressed functional loss during flare ups. As such, the issue was returned to the Board for readjudication. The Board last remanded the issue on appeal in July 2021 following the February 2021 Court Order implementing the February 2021 JMPR. Specifically, the Board remanded the issue on appeal in order for the RO to obtain an addendum medical opinion addressing functional loss during flare ups of the Veteran's left ankle disability. A review of the record shows the RO obtained a VA examination in September 2021 and an addendum medical opinion in January 2022. However, as discussed below, the Board finds that remand is necessary for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a disability rating in excess of 10 percent for service-connected status post left ankle sprain with calcaneal spurs is remanded. The Veteran, through his representative, contends he is entitled to a rating in excess of 10 percent for his service-connected status post left ankle sprain with calcaneal spurs. See March 2022 third party correspondence. As noted, the Board previously remanded the issue on appeal to afford the Veteran with a new VA examination and obtain an addendum medical opinion addressing the Veteran's functional impairment during flare ups in July 2021. Specifically, the Board requested the VA examiner opine as to the functional impact of flare ups and repetitive use in terms of range of motion; elicit relevant information as to the Veteran's flares or ask the Veteran to describe the additional functional loss, if any, he experiences during flares; and estimate the functional loss due to flares in terms of range of motion based on all the evidence of record. The Veteran was afforded a VA examination in September 2021. When VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For a medical opinion to be adequate, it must be: (1) based upon sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The VA examiner noted the Veteran's reports that his left ankle was weak and unstable; rolls frequently; hurts when he walks on it a lot; and has to wear boots and an ankle brace. See September 2021 VA examination. The VA examiner noted the Veteran's report that he experiences flare ups described as more aches and swelling if on the ankle for a long time that occurs up to at least twice a week. Id. The Veteran reported functional impairment experienced during a flare up of symptoms includes inability to walk, run or exercise. Id. The VA examiner noted the Veteran's bilateral ankles disability causes pain, and his diagnosis indicates pain, laxity, and osteoarthritis. Id. In a January 2022 VA addendum medical opinion, the VA examiner noted the Veteran was able to perform repetitive use testing without any additional loss of function in the ankle, and there was no loss of strength in the ankle. See January 2022 VA addendum medical opinion. The VA examiner stated that the Veteran was not evaluated during a flare up and therefore was unable to objectively estimate functional loss during flare ups in terms of range of motion. Id. The VA examiner explained that doing so would be pure speculation and there was a need for more information or examination during flare up to be objective about range of motion or functional loss during flare ups. Id. The Veteran, through his representative, argues that the January 2022 VA medical opinion is inadequate for decision making purposes. See March 2022 third party correspondence. The Veteran's representative noted the January 2022 VA examiner failed to elicit relevant information as to the Veteran's flare ups; consider his experiences during flare ups; consider all the evidence of record; and provide an opinion on whether functional loss during flare ups reflected limitation of knowledge in the medical community at large and not a limitation of the examiner. Id. The Board agrees and finds the January 2022 VA examiner's medical opinion inadequate as it relates to flare ups. In that regard, the January 2022 VA examiner's reasoning is insufficient and does not substantially comply with the Board's prior remand directives. Before the Board can accept an examiner's statement that an opinion cannot be provided without resorting to speculation, it must be clear that it is predicated on a lack of knowledge among the medical community at large and not the insufficient knowledge of the specific examiner. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). Additionally, the VA examiner did not provide an estimated range of motion for any functional loss or impairment in terms of range of motion during flare ups. Estimated range of motion should be provided during flare ups and with repeated use over time, if feasible, even if the Veteran is not experiencing one during the examination or being examined following repeated use over time. See Sharp, 29 Vet. App. at 34-36. As such, remand is necessary in order to obtain a medical examination in compliance with Sharp and the Board's prior remand directives. Stegall, 11 Vet. App. at 271. The Board finds that a retrospective opinion addressing functional loss and range of motion after repeated use over time and during flare ups should be obtained. See Chotta v. Peake, 22 Vet. App. 80 (2008). During the appeal period, the Board notes the Veteran was also afforded a VA examination in April 2018 in which the Veteran reported flare ups. At the April 2018 VA examination, the Veteran reported he experiences flare ups that are caused by prolonged weight-bearing and ache that intensifies. The April 2018 VA examiner similarly stated an inability to provide an opinion as to further loss of range of motion due to flare ups in terms of range of motion without resorting to mere speculation because there was no conceptual or empirical basis for making such a determination without directly observing function under these circumstances. Id. The Board previously determined the April 2018 VA examiner's medical opinion inadequate for decision making purposes as it relates to the functional impairment of the Veteran's left ankle during flare ups. Therefore, the Board finds remand is necessary to obtain a retrospective medical opinion addressing functional loss and range of motion during flare ups at the time of the April 2018 VA examination. The matters are REMANDED for the following action: 1. Forward the record and a copy of this Remand to the examiner who provided the January 2022 addendum medical opinion, or, if that examiner is unavailable, to another qualified clinician, for completion of an addendum medical opinion addressing the functional impact of repetitive use over time and during flare ups of the left ankle in terms of range of motion. If the examiner determines that a new examination is necessary to provide the requested opinion, such examination should be scheduled. (a.) The examiner must consider the information of record regarding the severity, frequency, and duration of any flare ups, and the degree of functional loss and loss of range of motion during flare ups. The examiner should assess the additional functional impairment in terms of the degree of additional range of motion, if any, despite not being observed during flare ups and should base the estimate on the Veteran's description of his flare ups and/or functional loss manifestations and all the evidence of record. The examiner must also provide a retrospective opinion and comment as to whether the Veteran's functional impairment due to flare ups can be estimated in terms of range of motion from March 2016 (date of the Veteran's increased rating claim). The examiner must indicate that they utilized information from the Veteran's medical records, including the April 2018 and September 2021 VA examinations, and/or other sources available, including lay statements. If the examiner is unable to provide a retrospective opinion as to these findings, the examiner should clearly explain so in the report. If the examiner is unable to estimate functional loss during flare ups in terms of range of motion, the examiner must discuss the lay and medical evidence in the record that was considered and explain why such an opinion is not possible, such as limitations of medical knowledge have been exhausted on the subject matter area, or the examiner needed the benefit of additional evidence, information or other procurable data. If the examiner determines that pain significantly limits functional ability but does not find any additional loss of range of motion, the examiner should explain why such functional ability does not result in any additional loss of range of motion. A complete rationale must be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, the examiner should explain why an opinion cannot be provided. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.