Citation Nr: 18160409
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 12-04 876A
DATE:	December 26, 2018
ORDER
Entitlement to service connection for a bilateral eye disability is denied.
Entitlement to service connection for an adjustment disorder with mixed anxiety and depressed mood, claimed as secondary to service-connected disabilities, is denied.
Entitlement to a compensable disability rating for a fracture of the fifth metacarpal of the right hand is denied.
Entitlement to a compensable rating for a fractured sternum is denied.
REMANDED
Entitlement to a disability rating in excess of 10 percent for dislocation of the right shoulder acromioclavicular (A/C) joint from April 27, 2009, and in excess of 20 percent from July 3, 2017 thereafter is remanded. 
Entitlement to a compensable disability rating for a right lower extremity disability is remanded.
FINDINGS OF FACT
1. The preponderance of the evidence is against finding that the Veteran has a bilateral eye disability that is due to a disease or injury in service, to include the glass explosion. 
2. The Veteran’s adjustment disorder with mixed anxiety and depressed mood is neither proximately due to nor aggravated beyond its natural progression by his service-connected disabilities, and is not otherwise related to an in-service injury, event, or disease.
3. The Veteran’s residuals of a right fifth metacarpal fracture are not manifested by symptoms approximating an amputation of that finger, or by involvement of other fingers or the whole hand so as to warrant a compensable or separate rating.
4. Throughout the appeal period, the Veteran’s residuals of a fractured sternum have not resulted in functional impairment.
CONCLUSIONS OF LAW
1. The criteria for entitlement to service connection for a bilateral eye disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).
2. The criteria for entitlement to service connection for an adjustment disorder with mixed anxiety and depressed mood, claimed as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017).
3. The criteria for entitlement to a compensable disability rating for a fracture of the fifth metacarpal of the right hand have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5227 (2017).
4. The criteria for a compensable disability rating for residuals of a fractured sternum have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, DC 5299-5297 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the Army from August 1986 to May 1990. 
This matter before the Board of Veterans’ Appeals (Board) is on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia (Agency of Original Jurisdiction (AOJ)).
The Veteran testified at a videoconference hearing before the undersigned in October 2016. A transcript of the proceeding is of record.
This matter was previously before the Board in June 2017. The Board remanded on the aforementioned issues to afford the Veteran the opportunity to present for new VA examinations. A review of the file reflects that new examinations were completed and additional medical records were obtained. The Board thus finds that the AOJ substantially complied with the remand directive in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998).
Service Connection
Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §1110; 38 C.F.R. §3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).
Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
In addition, for Veterans who have served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases listed at 38 C.F.R. § 3.309 (a), if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)).
Service connection may be granted, on a secondary basis, for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. §3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998).
The Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
1. Entitlement to service connection for a bilateral eye disability
The Veteran claims that he has a bilateral eye condition as a result of an injury sustained while he served in the Army. Specifically, he contends that he was working as a generator mechanic and there was an explosion, causing shattered glass to fly into his right eye, damaging his pupil. Since then, he has had to wear glasses at all times due to blurred vision. He also contends that he has to use eye drops approximately four times per day for dry eyes. 
Records as early as August 2003 indicate the Veteran has problems with his eyes and vision. One VA treatment record documented a provisional diagnosis at that time as “worsening visual acuity.” In February 2009, an attending physician noted that he did not have an ocular diagnosis, but assessed the Veteran as having dry eye syndrome. A VA examination was conducted for the Veteran’s eyes in July 2017, where the following diagnoses were noted: pinguecula (diagnosed in 2009), dry eye syndrome (diagnosed in 2009), and cataract (diagnosed in 2017). Based on the evidence of record, the Board will recognize that the Veteran has a current eye condition to satisfy the first prong of service connection. 
In reviewing the Veteran’s service treatment records (STRs), the Board finds that there is evidence of an in-service injury to the Veteran’s right eye. Treatment notes from April 1988 document that the Veteran was seen on several occasions following an injury to the Veteran’s right eye with a glass splinter. The records contain endorsements of blurred vision and inability to focus the left eye; his right eye also failed to adjust/accommodate, taking a long time to focus. The Veteran has consistently cited the glass incident when suggesting an in-service injury to his eyes. The Board will accept the STRs and the Veteran’s contentions as sufficient evidence of the claimed in-service injury. 
The Board remanded on the issue of a bilateral eye disability in its June 2017 decision to obtain an opinion as to the etiology of any bilateral eye condition. As noted previously, the Veteran’s diagnoses of pinguecula, dry eye syndrome, and cataracts were documented on the examination. However, the examiner opined that it was less likely as not (less than 50 percent probability) that the Veteran’s bilateral eye disability was incurred in or caused by his time in service, rationalizing that there is no bilateral eye disability. She continued by also providing that the Veteran’s bilateral eye disability is less likely as not caused by or related to the eye injury he experienced during service. The optometrist stated that this is because his “current eye conditions did not occur during service. The eye injury, only in the right eye (not bilateral), during service was self-limiting and without residuals based on the data.” 
The Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a bilateral eye disability. His service treatment records reflect treatment for right eye injury as well as eye symptoms of blurriness and inability to focus. He attributes his current eye conditions – pinguecula, dry eye syndrome and cataracts – has having first manifested in service or being attributable to the eye injury. The Veteran is competent to report his eye symptoms and history of treatment, but he is not competent to self-diagnosis his symptoms or opine as to the onset or etiology of his eye disorders which requires specialized education and training he is not shown to possess. As none of the eye disorders are deemed “chronic” diseases under 38 C.F.R. § 3.309(a), the Veteran’s testimony alone is insufficient to establish service connection based upon continuity of symptomology under 38 C.F.R. § 3.303(b) or a “chronic” disease being manifest within the first postservice year under 38 C.F.R. § 3.309(a).
On the other hand, a qualified VA optometrist has reviewed the Veteran’s description of injury and symptoms since service in light of the medical evidence of record. This examiner concluded that the Veteran’s right eye injury healed without residuals, and that his current bilateral eye disabilities first manifested many years after service and are not related to service. This examiner’s opinion holds substantially greater probative weight than the Veteran’s own lay opinion. As such, the Board must deny the Veteran’s claim for entitlement to service connection for a bilateral eye condition. 
2. Entitlement to service connection for an adjustment disorder with mixed anxiety and depressed mood, claimed as secondary to service-connected disabilities
The Veteran contends that his adjustment disorder with mixed anxiety and depressed mood is secondary to his service-connected disabilities. He endorsed experiencing mood swings, sleep problems, difficulty focusing, increased irritability, and anxiety. When filing his claim, he explained that he felt his mental health problems are due to his service-connected disabilities, which are the result of two car accidents that occurred during his active duty service. 
The record reflects that the Veteran has a current diagnosis of an adjustment disorder with mixed anxiety and depressed mood. VA treatment records also note that he has listed under his “problem list” a “mood disorder due to a general medical condition.” A VA examination conducted in August 2009 revealed a diagnosis of adjustment disorder with mixed anxiety and depressed mood, which was again reflected by the July 2017 examination. The Board therefore concedes that the Veteran has a current diagnosis of an adjustment disorder with mixed anxiety and depressed mood to satisfy the initial prong of both direct and secondary service connection. 
The Veteran is also able to satisfy the second prong for secondary service connection, i.e. evidence of a service-connected disability. Here, the Veteran is presently service-connected for the following disabilities: degenerative arthritis of the right shoulder, rated as 20 percent disabling; fracture of the fifth metacarpal, right hand, rated as non-compensable; exostosis anteriomedial aspect, right distal, rated as non-compensable; and fractured sternum, rated as non-compensable. 
The final prong for secondary service connection requires a positive nexus between the Veteran’s current diagnosis and his service-connected disabilities. The clinical psychologist who performed the August 2009 VA examination, however, opined that it was less likely as not (less than 50 percent probability) that the Veteran’s adjustment disorder with mixed anxiety and depressed mood was caused by or a result of his service-connected disabilities. She explained that after reviewing recent mental health records, it appeared as though the Veteran’s mental health symptoms were largely attributable to financial stress. She continued, stating that it is worth noting that the Veteran has a history of significant childhood abuse and post-military motor vehicle collisions. The clinical psychologist concluded by saying due to the history of significant pre- and post-military stressors, current psychiatric symptoms cannot be solely attributable to service-connected disabilities. 
The Board remanded this issue in its June 2017 decision, stating that the August 2009 examiner failed to adequately address whether the Veteran’s adjustment disorder may have been aggravated by his service-connected disabilities. A new mental disorder examination was performed in July 2017, where the Veteran was again diagnosed with an adjustment disorder with mixed anxiety and depressed mood. The psychologist who performed the July 2017 examination also opined it was less likely than not (less than 50 percent probability) that the Veteran’s adjustment disorder was incurred in or caused by an in-service event or injury. He rationalized that the Veteran did not pursue mental health treatment until nearly 20 years post-military discharge, and noted that his distress was proximally related to post-military injuries he sustained during a 2007 motorcycle accident, financial strain, and marital strain. He continued to say these factors have continued to be the primary contributors to the Veteran’s adjustment disorder. 
The examiner was unable to establish a baseline level of severity for the Veteran’s adjustment disorder based on the available evidence prior to aggravation. He claimed the Veteran’s service-connected right shoulder, sternum, and right foot problems predate his documented psychiatric treatment, which began in 2009. He explained, “there is no evidence since then that his service-connected conditions have played a significant role in his adjustment disorder, much less aggravated it.” The psychologist concluded by saying the Veteran’s adjustment disorder was not at least as likely as not aggravated beyond its natural progression by his service-connected conditions. 
Based on the evidence of record, including the opinions of the two VA examiners, medical treatment records, and lay statements from the Veteran, the Board finds that the evidence of record preponderates against the claim. The Veteran is competent to report his physical and mental symptoms and his overall functional impairment, but he is not shown to possess the expertise to diagnosis a mental disorder or opine as to its cause or onset. The clinic diagnosis attributing the diagnosis of adjustment disorder to a “general” medical condition has some probative value, as the Veteran manifests service-connected disorders. However, the probative value of this assessment is limited as it does not distinguish from disability caused by service-connected versus nonservice-connected conditions.
On the other hand, VA examiners with the requisite specialized training and expertise have interviewed the Veteran and reviewed the claims folder and have provided opinion that the Veteran’s currently manifested acquired psychiatric disorder has not been caused and/or aggravated beyond the normal progress of the disorder by service-connected disabilities. These opinions, which are supported by a rationale, hold significantly greater probative weight than the Veteran’s own personal opinion and generalized assessment in the VA clinic. As such, the Board finds that the claim of entitlement to service connection for an acquired psychiatric disorder must be denied. 
Increased Rating
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. §1155; 38 C.F.R. §4.1.
If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.
In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126–27 (1999).
The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. §4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009).
3. Entitlement to a compensable disability rating for a fracture of the fifth metacarpal of the right hand 
The Veteran’s fracture of the fifth metacarpal of his right hand is evaluated as non-compensable under DC 5227. Under DC 5227, a maximum non-compensable rating is assigned for unfavorable or favorable ankylosis of the ring or little finger regardless whether the finger is on the major (dominant) or minor (non-dominant) hand. 38 C.F.R. § 4.71a, DC 5227. Since the Veteran is in receipt of the maximum disability rating available under DC 5227, the Board will consider other potentially applicable DCs in the Rating Schedule. 
Under DC 5230, a maximum zero percent rating is assigned for any limitation of motion of the little finger (whether on the major [dominant] or minor [non-dominant] hand). 38 C.F.R. § 4.71a, DC 5230. Thus, the Veteran is also in receipt of the maximum disability rating under DC 5230. In this regard, while it is the intention of the rating schedule to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, there is no compensable rating available under either DC 5227 or 5230. 38 C.F.R. § 4.71a. See Sowers v. McDonald, 27 Vet. App. 472 (2016).
Although the Board recognizes that the Veteran currently is in receipt of the maximum zero percent disability rating, the Note to DC 5227 states that an amputation evaluation should also be considered, particularly where ankylosis is present. 38 C.F.R. § 4.71a. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992).
Here, the Veteran is noted as not having ankylosis of the fifth metacarpal on his right hand at his June 2009 VA examination. The examiner noted decreased strength for pulling or pushing and pain with grip/squeezing of the hand, but no ankylosis. More so, findings at that time revealed no evidence to warrant an acute diagnosis. At examinations in January 2013 and July 2017, no ankylosis was noted for his fifth metacarpal either. Additionally, no evidence of record indicates that the right little finger is so disabled, by ankylosis or by any other symptoms, to include pain, such that its functional impairment more nearly approximates amputation. Thus, the Board concludes that an increased rating is not warranted via the amputation codes because the nature of the Veteran’s service-connected right fifth finger disability is not analogous to amputation. Id. 
The Board recognizes the Veteran’s lay statements of problems with right hand grip and hand shaking. However, limitation of motion does not entitle the Veteran to a higher disability rating. As stated above, even if rated under DC 5230, he is already in receipt of the maximum schedular disability rating available for limitation of motion of the right little finger. As previously mentioned, his little finger must result in ankylosis equivalent to an amputation to warrant a compensable disability rating. Thus, even when considering the Veteran’s complaints of pain and limitation of motion, the requirements for a compensable disability rating for the right 5th metacarpal are not met. Accordingly, the Board finds that the current noncompensable evaluation adequately compensates the Veteran for the pain and functional impairment caused by his service-connected residuals of right 5th finger fracture. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Furthermore, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the United States Court of Appeals for Veterans Claims (Court) determined that if a claimant is already receiving the maximum disability rating, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. 
Moreover, although 38 C.F.R. § 4.59 and Burton v. Shinseki, 25 Vet. App. 1 (2011) provide that actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint, there is no compensable minimum rating available under DC 5227. In Sowers v. McDonald, the Court held that the provisions of 38 C.F.R. § 4.59 are not an independent provision that may be applied without an underlying DC. See Sowers v. McDonald, 27 Vet. App. 472 (2016). Because DC 5227 and 5230 provide for a maximum noncompensable rating, a compensable rating is not available under either DC due to the provisions of 38 C.F.R. § 4.59. Collectively, the above medical and lay evidence of record establishes no ankylosis for the Veteran’s little finger, even with consideration of pain and other factors of functional loss. See 38 C.F.R. § 4.71a. 
The Note to DC 5227 also states that an additional evaluation is warranted for any resulting limitation of motion of other digits or interference with the overall function of the hand due to the service-connected little finger. Here, although the Veteran notes difficulty gripping and shaking hands, there is no evidence that the 5th finger disability has interfered with the overall function of the hand, such that a separate evaluation is warranted under the Note to DC 5227. 38 C.F.R. § 4.71a, Code 5227. 
The Board finds that a preponderance of the evidence is against the Veteran’s claim for compensable rating for his service-connected right little finger disability. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.
4. Entitlement to a compensable rating for a fractured sternum
The Veteran’s fractured sternum is evaluated as non-compensable under DC 5299-5297. DC 5299 indicates the disability is not listed in the Schedule for Rating Disabilities, and it has been rated by analogy under a closely related disease or injury. Under DC 5297, a 10 percent evaluation is warranted for removal of one rib or resection of two or more ribs without regeneration. A 20 percent evaluation is warranted for removal of two ribs; a 30 percent for removal of three or more ribs; a 40 percent for removal of five or six ribs; a 50 percent evaluation for removal of six or more ribs. See 38 C.F.R. § 4.71a, DC 5297. 
During the year prior to the Veteran filing for an increased disability rating and the period during the pendency of this appeal, the following evidence pertaining to the Veteran’s sternum fracture was associated with the record. In December 2008, the Veteran complained of mid-sternum chest pain, citing the accident; however, nothing more was included in the treatment note. A June 2009 VA examination was completed for his fractured sternum, which revealed that the Veteran experiences discomfort with lifting, pushing, and pulling. The examiner documented that his condition was stable and that his sternum had healed, warranting no finding of a current diagnosis despite the Veteran’s contentions about experiencing pain. The Veteran submitted a statement shortly thereafter, suggesting he takes medication every day for his pain. The AOJ continued his non-compensable disability rating in the March 2010 rating decision from which the Veteran timely appealed. 
VA treatment records note the Veteran went to the emergency room a couple times for chest pain in June 2011, citing it was from his sternum fracture; however, chest x-rays were normal and instead, he was told he had costochondritis and gastroesophageal reflux disease (GERD). 
A subsequent VA examination was conducted for the Veteran’s sternum fracture in January 2013. The examiner documented slight tenderness to palpation of the lower right sternum, but otherwise no other symptoms. She noted the Veteran’s residual pain and indicated it had no significant effects on his occupation or daily activities. His most recent VA examination took place in July 2017, which revealed similar findings. The Veteran endorsed experiencing pain in his sternum with coughing and lifting heavy objects; he also indicated it was hard to do pushups. The examiner noted his condition had been stable since its onset with mild tenderness on palpation of the lower sternum, but no erythema or deformity. 
The Board subsequently finds that the Veteran’s residuals of a sternum fracture do not warrant a compensable rating. The Board has considered the Veteran’s lay testimony and statements regarding pain with certain activities; however, the VA examinations have shown that this disorder has not resulted in any appreciable functional impairment. The Veteran is competent to describe symptoms such as chest pain, but he is not competent to medically differentiate the cause of his chest pain from etiologies such as his sternum, costochondritis and GERD as reflected in the medical records. The opinions of the VA examiners, which is based on interview of the Veteran as well as physical examination, hold greater probative weight as to the nature and etiology of the Veteran’s chest pain symptoms and the overall functional impairment resulting from healed sternum fracture. As such, the Board must deny the Veteran’s claim for entitlement to a compensable rating for a fractured sternum. There is no doubt of material fact to be resolved in his favor. 38 U.S.C. § 5107(b).



REASONS FOR REMAND
1. Entitlement to a disability rating in excess of 10 percent for dislocation of the right shoulder A/C joint from April 27, 2009 to July 3, 2017, and in excess of 20 percent from July 3, 2017 thereafter for degenerative arthritis of the right shoulder is remanded.
The Board notes that the Veteran was initially service connected for dislocation of the right shoulder A/C joint, evaluated as 10 percent disabling. However, while this case was pending on appeal, the AOJ reevaluated his disability under DC 5003-5201, characterizing it as degenerative arthritis of the right shoulder and permitting a 20 percent disability rating. As this does not constitute a full grant of the benefits sought on appeal, the issue is still before the Board. See AB v. Brown, 6 Vet. Ap. 35, 38 (1993).
During his most recent VA examination conducted in January 2018, he reported that his shoulder experiences flare ups with increased physical activity, lasting 1-2 days. The examiner who conducted this examination did not attest to whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare ups, saying she is unable to say without resort to speculation. See Deluca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011).
The record, however, does not contain an examination report that complies with current legal requirements. The January 2018 examiner indicated that she was unable to opine as to whether pain, weakness, fatigability, or incoordination significantly limits the Veteran’s functional ability during flare ups without resort to mere speculation because “an opinion regarding functional limitations during flare ups of this condition is not feasible since this relies on subjective data.”
The United States Court of Appeals for Veterans’ Claims (Court) has recently made clear that such remarks made concerning flare-ups, without more, renders an examination inadequate.  See Sharp v. Shulkin, 29 Vet. App. 26 (2017). As the Court explained in Sharp, “the VA Clinician’s Guide makes explicit what DeLuca clearly implied: it instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves.” Id. at 6. “Even when the claimant is not experiencing a flare-up at the time of the examination, a VA examiner must elicit relevant information as to the Veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran’s functional loss due to flares based on all the evidence of record-including the Veteran’s lay information-or explain why [he or] she could not do so.” Id. The Board must therefore remand to obtain an examination that complies with the directives set out in Sharp.
2. Entitlement to a compensable disability rating for a right lower extremity disability is remanded.
The Board previously remanded on this issue to instruct the AOJ to schedule a new examination that is in compliance with the findings of Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner conducted an examination of the Veteran’s ankle, explaining that it was more appropriate than a knee/leg or muscle examination. She recorded the Veteran’s diagnosis as exostosis of the right medial distal tibia and while her examination complied with Correia, it did not comply with Sharp, as the Board expounded upon for the Veteran’s right shoulder above. Here, the Veteran reported flare ups of his ankle; he claims it hurts and/or swells if he walks on stairs for long or walks for long, lasting 1-2 days. Again, she was unable to opine as to whether pain, weakness, fatigability, or incoordination significantly limits the Veteran’s functional ability during flare ups without resort to mere speculation because “an opinion regarding functional limitations during flare ups of this condition is not feasible since this relies on subjective data.” The Board will therefore remand on this issue for Sharp compliance. 
The matters are REMANDED for the following action:
1. The AOJ shall associate the Veteran’s most recent outstanding VA medical treatment records with his file, specifically those records from June 2018 to the present. 
2. Then, afford the Veteran an orthopedic examination to determine the current severity of his right shoulder. 
In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report.
Also, in order to comply with the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas:
• Active motion;
• Passive motion;
• Weight-bearing; and
• Nonweight-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. The VA examiner should provide a complete rationale for any opinions provided.
3. Afford the Veteran an orthopedic examination to determine the current severity of his right lower extremity. 
In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report.
Also, in order to comply with the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas:
• Active motion;
• Passive motion;
• Weight-bearing; and
• Nonweight-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. The VA examiner should provide a complete rationale for any opinions provided.
4. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond.

 
T. MAINELLI
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Victoria A. Narducci, Associate Counsel 

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