Bobby R. Sharp v. David J. Shulkin

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 16-1385

BOBBY R. SHARP, APPELLANT,

V.

DAVID J. SHULKIN, M.D.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided September 6, 2017)

Perry A. Pirsch and John S. Berry, both of Lincoln, Nebraska, were on the brief for the

appellant.

Meghan K. Flanz, Interim General Counsel; Mary Ann Flynn, Chief Counsel; Thomas E.

Sullivan, Deputy Chief Counsel; and Tamika J. Springs, all of Washington, D.C., were on the brief

for the appellee.

Before PIETSCH, BARTLEY, and GREENBERG, Judges.

BARTLEY, Judge: Veteran Bobby R. Sharp appeals through counsel a March 16, 2016,

Board of Veterans' Appeals (Board) decision denying disability evaluations in excess of 10% for

right and left shoulder, hand, and elbow/forearm disabilities. Record (R.) at 2-52.1 This appeal is

timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. §§ 7252(a)

and 7266(a). This matter was referred to a panel of the Court to clarify the responsibilities of a

VA examiner and the Board when an examiner is asked to provide an opinion as to additional

functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown,

1

The Board remanded the issue of entitlement to a total disability evaluation based on individual

unemployability. R. at 48-52. Because a remand is not a final decision of the Board subject to judicial review, the

Court does not have jurisdiction to consider that issue at this time. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed.

Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order); 38 C.F.R. § 20.1100(b) (2017). The

Board also denied initial evaluations in excess of 10% for right and left wrist disabilities. Because Mr. Sharp has not

challenged these portions of the Board decision, the appeal as to those matters will be dismissed. See Pederson v.

McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc) (declining to review the merits of an issue not argued on appeal

and dismissing that portion of the appeal); Cacciola v. Gibson, 27 Vet.App. 45, 48 (2014) (same). Last, the Board

granted initial 10% evaluations for right and left elbow/forearm and hand disabilities prior to September 8, 2015. R.

at 48. As these findings are favorable to the veteran, the Court will not disturb them. See Medrano v. Nicholson,

21 Vet.App. 165, 170 (2007) ("The Court is not permitted to reverse findings of fact favorable to a claimant made by

the Board pursuant to its statutory authority.").

8 Vet.App. 202 (1995), and the examiner states that he or she is unable to offer such an opinion

without resorting to speculation based on the fact that the examination was not performed during

a flare. Because, as explained below, neither the Board nor the VA examiner in this case complied

with the responsibilities set forth in Jones v. Shinseki, 23 Vet.App. 382 (2010), the Court will set

aside the March 2016 Board decision and remand the matter for additional development and

readjudication consistent with this decision.

I. FACTS

Mr. Sharp served on active duty in the U.S. Army from March 1952 to March 1954,

including combat service in Korea. R. at 3, 1017.2

In June 2004, he sought service connection for, inter alia, "arthritis to include bursitis." R.

at 1308-17. In August 2005, the VA regional office (RO) denied service connection for

arthritis/bursitis in the right and left shoulders, hands, and forearms. R. at 1238-48. The veteran

timely disagreed with this decision and the matters were ultimately appealed to the Board, which

denied the claims in June 2008. R. at 1012-21; see R. at 1031-33, 1134-39, 1145-57. The veteran

appealed to this Court. R. at 990. In March 2009, the Court granted the parties' joint motion for

remand in which they agreed that the Board failed to provide adequate reasons or bases in certain

respects. R. at 968-75. In August 2009, the Board, in turn, remanded the claims for further

development. R. at 952-58. Mr. Sharp underwent VA joints examinations in May 2010; the

examiner opined that the musculoskeletal disabilities were at least as likely as not related to

service. R. at 298-311, 316-39.

In April 2012, based on the May 2010 opinion, the RO granted service connection for right

and left shoulder arthritis, assigning 10% evaluations for each; the RO also granted service

connection for right and left hand and elbow/forearm conditions, assigning noncompensable

evaluations for each. R. at 228-40, 274-84. Mr. Sharp disagreed with the evaluations assigned

and perfected an appeal to the Board. R. at 214-24.

In November 2014, the Board remanded the claims for the provision of another VA

examination. R. at 177-83. The Board instructed the examiner to "conduct range of motion testing

and render specific findings as to whether, during the examination, there is objective evidence of

2

The page in the record before the agency cited by the parties at which the veteran's DD Form 214 appears

(page 173) is not included in the record of proceedings filed with the Court.

2

pain on motion, weakness, excess fatigability, and/or incoordination associated with the service[-

]connected bilateral shoulder, . . . hand, and elbow disabilities," as well as "indicate the point at

which pain begins" and "whether, and to what extent, the [v]eteran experiences likely functional

loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with

repeated use." R. at 181; see also R. at 164 (VA's request that the examiner provide the information

sought "if feasible" and, if not feasible, "an explanation as to why the opinion cannot be rendered").

Mr. Sharp underwent the ordered examinations in September 2015. The examiner

diagnosed bilateral shoulder arthritis and bursitis, bilateral elbow olecranon spurs, and bilateral

hand degenerative arthritis; with respect to each disability, the examiner measured range of motion

and noted any limitations thereof, both on initial and repetitive testing, and assessed other factors

potentially resulting in functional loss, such as weakness, instability, or the presence of pain. See

generally R. at 121-51. With respect to each disability, the examiner noted the veteran's reports

of experiencing periodic flares, indicated that the examination was not taking place during a flare-

up, and recorded functional impairment articulated by the veteran during those periods. With

respect to the shoulders, the veteran reported additional functional loss during flare periods in

terms of increased pain and lack of endurance and asserted that flares were precipitated by "driving

the mower" and lifting. R. at 122-23. Similarly, Mr. Sharp stated that he experienced "constant

aching" pain of 10 out of 10 during elbow/forearm flares, R. at 134, and severe, aching pain,

moderate weakness in grip strength, lack of endurance, and mild decrease in fine motor skills

during hand joint flares, R. at 142-43. As relevant to the present appeal, regarding all joint

disabilities, the examiner indicated that the examinations were either medically consistent, or

neither medically consistent nor inconsistent, with the veteran's descriptions of functional loss

during flare-up periods, but the examiner further stated: "It is not possible without mere speculation

to estimate either loss of [range of motion] or describe loss of function during flares because there

is no conceptual or empirical basis for making such a determination without directly observing

function under these circumstances." R. at 125-27 (shoulders), 136-37 (elbows/forearms), 146-48

(hands).

In September 2015, the RO granted 10% evaluations, but no higher, for right and left

elbow/forearm and hand disabilities effective September 8, 2015; however, it continued to deny

compensable evaluations for these disabilities prior to that date and to deny evaluations in excess

3

of 10% for right and left shoulder disabilities. R. at 91-120. Because the RO decision resulted in

less than a total grant of the benefits sought, the matters returned to the Board. R. at 68.

In the March 2016 decision on appeal, the Board granted 10% evaluations for right and left

elbow/forearm and hand disabilities prior to September 8, 2015, but denied evaluations in excess

of 10% for these and right and left shoulder disabilities for any period during the pendency of the

claims. The Board found that VA substantially complied with its November 2014 remand

instructions and that the medical evidence of record, including the September 2015 VA

examination and opinion, was adequate for evaluation purposes. R. at 9-10. The Board addressed

the September 2015 examiner's physical findings, acknowledged his statements that he could not

offer the opinions requested in the November 2014 remand instructions without resorting to

speculation, and concluded that the examiner's reasons constituted "an adequate explanation for

not being able to comment on additional [functional] loss during . . . flare-ups." R. at 22; accord

R. at 29, 37. This appeal followed.

II. ANALYSIS

Mr. Sharp argues that the Board clearly erred in accepting the September 2015 examination

as adequate, clearly erred in finding substantial compliance with the November 2014 remand

instructions, and offered inadequate reasons or bases to support its determinations to the contrary;

the veteran's arguments are all predicated on a single assertion, namely, that the Board's November

2014 remand order required the September 2015 examiner, pursuant to DeLuca and its progeny,

to offer an estimate as to additional functional loss during flares regardless of whether the veteran

was undergoing a flare-up at the time of the examination and that the examiner failed to do so.

Appellant's Brief (Br.) at 3-14; Reply Br. at 1-4. The Secretary disputes these contentions, arguing

that, under Jones, the examiner was permitted to decline to offer an opinion on the grounds that

doing so would require resort to speculation. Secretary's Br. at 10-17.

A remand by the Board or Court confers on the claimant a legal right to substantial

compliance with the remand order. Donnellan v. Shinseki, 24 Vet.App. 167, 176 (2010); Dyment

v. West, 13 Vet.App. 141, 147 (1999); Stegall v. West, 11 Vet.App. 268, 271 (1998). When a claim

is remanded to provide the claimant with a VA medical examination or opinion, the Secretary must

ensure that the examination or opinion provided is adequate. Barr v. Nicholson, 21 Vet.App. 303,

311 (2007). A VA medical examination or opinion is adequate "where it is based upon

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consideration of the veteran's prior medical history and examinations" and "describes the disability

. . . in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully

informed one.'" Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown,

6 Vet.App. 405, 407 (1994)). The Court reviews for clear error the Board's determination that a

medical examination or opinion was adequate. D'Aries v. Peake, 22 Vet.App. 97, 104 (2008). "A

factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and firm conviction that a mistake has been

committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S.

Gypsum Co., 333 U.S. 364, 395 (1948)).

With any finding on a material issue of fact and law presented on the record, the Board

must support its determination with an adequate statement of reasons or bases that enables the

claimant to understand the precise basis for that determination and facilitates review in this Court.

38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995). In its statement of reasons

or bases, the Board must analyze the credibility and probative value of evidence, account for the

persuasiveness of evidence, and provide reasons for rejecting material evidence favorable to the

claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.

1996) (table).

A. Governing Law and Practice

Addressing the adequacy of the VA medical examination and opinion and the propriety of

the Board's analysis in this case requires the Court to review two related issues: the duties of a VA

examiner when assessing a musculoskeletal disability and the circumstances in which the Board

may accept as adequate a VA examiner's statement that an opinion cannot be provided without

resorting to speculation.

First, joint disabilities are evaluated in light of criteria found in applicable diagnostic codes

in the rating schedule for the musculoskeletal system. See generally 38 C.F.R. § 4.71a (2017). A

veteran may, however, be entitled to a higher disability evaluation than that supported by

mechanical application of the schedule where there is evidence that his or her disability causes

additional functional loss—i.e., "the inability . . . to perform the normal working movements of

the body with normal excursion, strength, speed, coordination[,] and endurance"—including as

due to pain. 38 C.F.R. § 4.40 (2017). A higher evaluation may also be awarded where there is a

reduction of a joint's normal excursion of movement in different planes, including changes in the

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joint's range of movement, strength, fatigability, or coordination. 38 C.F.R. § 4.45 (2017). The

Court explained in DeLuca that a VA joints examination that fails to consider the factors listed in

§§ 4.40 and 4.45 is inadequate for evaluation purposes. 8 Vet.App.at 206-07. Specifically, for an

examination to comply with § 4.40, the examiner must "express an opinion on whether pain could

significantly limit functional ability" and the examiner's determination in that regard "should, if

feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use

or during flare-ups." Id. at 206 (emphasis added) (internal quotation marks and alteration omitted);

see Mitchell v. Shinseki, 25 Vet.App. 32, 44 (2011) (summarizing DeLuca and concluding that an

examination was inadequate because it "did not discuss whether any functional loss was

attributable to pain during flare-ups, despite noting the appellant's assertions [thereof]"). Flare-

ups, in other words, must be factored into an examiner's assessment of functional loss.

DeLuca's requirements are reflected in the VA Clinician's Guide, which "provides

information for performing examinations that meet the requirements of federal law" and "explains

the law in clinical terms." VA CLINICIAN'S GUIDE § 0.1 (March 2002). When conducting

evaluations for musculoskeletal disabilities, examiners are instructed to inquire whether there are

periods of flare and, if the answer is yes, to state their severity, frequency, and duration; name the

precipitating and alleviating factors; and estimate, "per [the] veteran," to what extent, if any, they

affect functional impairment. See generally id., ch. 11. These instructions appear in worksheets

pertaining to musculoskeletal examinations of the spine, shoulders, elbows, wrists, hips, knees,

ankles, feet, and hands, as well as muscles.

Whether VA is obliged to attempt to schedule an examination during a flare-up depends

upon the specifics of the disability in a particular case. For example, in Ardison, the veteran alleged

that his chronic skin condition would periodically worsen during "active stages" and spread to

other parts of his body. 6 Vet.App. at 408-09. Because Mr. Ardison's flares could last for weeks

at a time, the Court remanded the claim and instructed the Board to "provide for the conduct of an

adequate examination during the active stage" of his condition. Id. at 408. Relying on Ardison,

the veteran in Voerth v. West argued that he was entitled to a VA examination during a period

when his pilonidal cyst was enflamed. 13 Vet.App. 117, 122 (1999). The Court rejected this

contention based in part on the fact that the skin condition in Ardison would undergo periods of

inflammation lasting "weeks or months," whereas Mr. Voerth's cyst flares "would only last a day

or two." Id. at 123. The Court recognized that "the practical aspects of scheduling a medical

6

examination within this short time period" of flares lasting a day or two would be unworkable. Id.

Thus, the frequency, duration, and severity of flares are necessary considerations when

determining whether VA must attempt to schedule an examination during a flare.

Last, the Court has recognized circumstances in which an examiner's conclusion that an

"opinion is not possible without resort to speculation is a medical conclusion just as much as a

firm diagnosis or a conclusive [medical] opinion." Jones, 23 Vet.App. at 390. In Jones, VA

examiners stated that they could not opine as to etiologies of various disabilities without resorting

to speculation. Id. at 385. Although recognizing that obtaining medical opinions is part of VA's

duty to assist, the Court rejected the veteran's assertions that an examination is necessarily

inadequate every time an examiner states that a non-speculative decision cannot be reached or that

VA must "proceed through multiple iterations of medical opinions until it declares that no further

examinations would assist the claimant." Id. at 391.

Nevertheless, to ensure that the phrase did "not become a mantra that short circuits the

careful consideration to which each . . . case is entitled," id. at 389, the Court carefully explained

when the Board could treat as adequate an examiner's statement that he or she could not offer an

opinion without resorting to speculation. First, it must be clear that an examiner has "considered

all procurable and assembled data" before stating that an opinion cannot be reached. Id. at 390

(internal quotation marks omitted). When the record is unclear as to whether a VA examiner has

done this—for example, "by obtaining all tests and records that might reasonably illuminate the

medical analysis"—the Board must remand the matter for clarification or additional development.

Id. Second, the examiner must explain the basis for his or her conclusion that a non-speculative

opinion cannot be offered. Id. In other words, it must be apparent that the inability to provide an

opinion without resorting to speculation "reflect[s] the limitation of knowledge in the medical

community at large" and not a limitation—whether based on lack of expertise, insufficient

information, or unprocured testing—of the individual examiner. Id. As part of this obligation, a

VA examiner should identify when specific facts cannot be determined. Id. Jones, therefore,

permits the Board to accept a VA examiner's statement that he or she cannot offer an opinion

without resorting to speculation, but only after determining that this is not based on the absence of

procurable information or on a particular examiner's shortcomings or general aversion to offering

an opinion on issues not directly observed.

7

B. Application to the Present Case

Applying these principles to the present case, the Court holds that the Board failed to

provide adequate reasons or bases for its determination that the September 2015 VA examinations

were adequate for evaluation purposes and, hence, did not ensure substantial compliance with its

November 2014 remand instructions.

Initially, Mr. Sharp asserts that, to be adequate, a medical examination must occur during

a flare to ensure a proper disability evaluation. Appellant's Br. at 4 (citing Ardison, 6 Vet.App. at

408). But, as discussed above, Ardison did not establish such a rule. See Voerth, 13 Vet.App. at

122-23 (concluding, notwithstanding Ardison, that the Board did not clearly err in finding a VA

medical examination adequate even though it was not conducted during a flare-up). Rather, the

lesson of Ardison and Voerth is that once VA determines that an examination is warranted, its

obligation to schedule that examination during a flare is contingent upon the frequency and

duration of flares in a specific case. Of course, VA often may not be in possession of this

information when undertaking to provide and schedule an examination. And even when such

information is eventually acquired, the impracticalities alluded to in Voerth still obtain. Where a

condition's flares are irregular, unpredictable, infrequent, or brief, it is unclear how VA would

schedule a flare-coincident examination as a practical matter, given its resources and duty to

provide timely examinations as part of innumerable claims.

The record in the present case does not indicate the frequency or duration of flares or what

precipitates them, other than the September 2015 examiner's notation of Mr. Sharp's report that

"driving the mower" and lifting bring on shoulder flares. R. at 122. Thus, there is no basis for the

Court to conclude that the Board erred in not deeming the September 2015 examination inadequate

solely on the basis that it was not conducted during a flare of Mr. Sharp's shoulder, elbow/forearm,

and hand disabilities.

Fortunately, neither the law nor VA practice requires that an examination be conducted

during a flare for the functional impairment caused by flares to be taken into account. Instead,

DeLuca and its progeny clearly, albeit implicitly, anticipated that examiners would need to

estimate the functional loss that would occur during flares, as is evident from the fact that Mr.

DeLuca's left shoulder disorder flared only "at times." 8 Vet.App. at 204; see, e.g., Mitchell, 25

Vet.App. at 44 (finding inadequate a medical opinion where an examiner did not offer an opinion

as to additional function loss during flares "despite noting the appellant's assertions" regarding the

8

frequency, duration, and severity of those flares); cf. Petitti v. McDonald, 27 Vet.App. 415, 429-

30 (2015) (holding that credible lay evidence of functional loss due to pain, including during flare

periods, observed outside of the VA examination context could constitute objective evidence in

support of an evaluation).

The critical question in assessing the adequacy of an examination not conducted during a

flare is whether the examiner was sufficiently informed of and conveyed any additional or

increased symptoms and limitations experienced during flares. See Mitchell, 25 Vet.App. at 44.

Moreover, because the September 2015 VA examiner declined to offer an opinion as to additional

function loss during flares "without directly observing function under these circumstances," R. at

125, her position is at odds with VA's guidance on the matter. As noted above, 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.3 See generally VA CLINICIAN'S GUIDE, ch. 11.

Mr. Sharp is, therefore, correct when he argues that the September 2015 examination was

inadequate because the examiner, although acknowledging that the veteran was not then suffering

from a flare of any of his conditions, failed to ascertain adequate information—i.e., frequency,

duration, characteristics, severity, or functional loss—regarding his flares by alternative means.

Appellant's Br. at 8. Because the VA examiner did not 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 she could not do so, the September 2015

examination was inadequate for evaluation purposes and the Board's finding to the contrary was

clearly erroneous.4 See D'Aries, 22 Vet.App. at 104; Stefl, 21 Vet.App. at 123; see also Mitchell,

25 Vet.App. at 44; DeLuca, 8 Vet.App.at 206-07.

3

The Court acknowledges that the VA Clinician's Guide is not binding on VA examiners. VA CLINICIAN'S

GUIDE § 1.1 ("The Clinician's Guide and any of its parts (worksheets) are intended solely as a guide for clinicians, and

it is not legally binding on a clinician to perform all portions of the examination protocol."); see Camacho v. Nicholson,

21 Vet.App. 360, 364 (2007) ("The VA Clinician's Guide . . . is a guide to VA doctors providing generalized direction

for the proper conduct of disability examinations."); Allin v. Brown, 6 Vet.App. 207, 214 (1994) (holding that the VA

Physician's Guide for Disability Evaluation Examinations is not mandated by either statute or regulation, does not

appear in the statutes or regulations governing disability evaluation examinations, and is not a document that is binding

upon VA); see also Doucette v. Shulkin, 28 Vet.App. 366, 374 (2017) (Schoelen, J., dissenting).

4

Inasmuch as Mr. Sharp argued that the Board did not ensure that an adequate VA examination addressing

9

The Secretary interposes that the September 2015 examination was not inadequate because,

consistent with Jones, the VA examiner explained why it was not feasible for her to provide an

opinion on functional loss due to flares. Secretary's Br. at 12. The examiner stated: "It is not

possible without mere speculation to estimate either loss of [range of motion] or describe loss of

function during flares because there is no conceptual or empirical basis for making such a

determination without directly observing function under these circumstances." R. at 125-27, 136-

37, 146-48. The Board determined that this was "an adequate explanation for not being able to

comment on additional [functional] loss during . . . flare-ups." R. at 22; accord R. at 29, 37.

According to the Secretary, the statement by the examiner and the reasons proffered by the Board

satisfied the requirements of Jones. We disagree.

As just explained, the Court's case law and VA guidelines anticipate that examiners will

offer flare opinions based on estimates derived from information procured from relevant sources,

including the lay statements of veterans. Although the September 2015 VA examiner couched her

refusal to offer an opinion regarding flares in broad terms, stating there is "no conceptual or

empirical basis for making such a determination without directly observing function under these

circumstances," e.g., R. at 125-27, the apparent universality of this statement is contradicted by

VA's Clinician's Guide, which specifically advises examiners to try to procure information

necessary to render an opinion regarding flares from veterans. Aside from acknowledging the

reality that, because of administrative constraints, examiners may not be examining veterans

during flares, this guidance is a recognition that direct observation of functional impairment during

a flare-up is not a prerequisite to offering an opinion.

Jones is not to the contrary. Although we observed there that, in certain circumstances "it

would be inappropriate for VA to demand a conclusive opinion from a physician" who represented

that he or she could not provide one, we clearly noted that such representation could be made only

after "evaluation of the 'procurable and assembled' information." 23 Vet.App. at 390 (quoting

38 C.F.R. § 3.102). Before concluding that a requested opinion cannot be provided without

resorting to speculation, an examiner must "do[ ] all that reasonably should be done to become

flare was obtained, the Court also agrees that the Board failed to ensure substantial compliance with its November

2014 remand instructions. See Donnellan, 24 Vet.App. at 176 (concluding that the Board did not ensure substantial

compliance with a prior remand order where the examiner failed to answer a specific question regarding aggravation

posed by the Board); Stegall, 11 Vet.App. at 271 (remanding where "the record reveal[ed] that the VA medical

examination did not comply with the directions found in the [Board] remand order").

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informed about a case." Id. at 391. When the record is ambiguous as to whether sufficient

information was obtained, "it is the Board's duty to remand for further development." Id. at 390.

Here, however, the September 2015 VA examiner did not elicit information from Mr. Sharp

regarding his flares' severity, frequency, duration, or functional loss manifestations, nor did she

indicate whether such information could be gleaned from medical records or other sources

available to her. Moreover, before the Board can accept an examiner's statement that an opinion

cannot be provided without resort to speculation, it must be clear that this is predicated on a lack

of knowledge among the "medical community at large" and not the insufficient knowledge of the

specific examiner. Id.

Curiously, the Secretary contends that Mr. Sharp's reports of pain and loss of endurance

during flares "do not lend themselves to approximating degrees of functional loss" and "are not

consistent with trying to approximate degrees of functional loss." Secretary's Br. at 14. If he is

arguing that the record does not currently contain sufficient detail to permit the September 2015

examiner to offer an opinion as to functional loss during flares, if any, in terms of additional range

of motion loss, the Court agrees, with the caveat that the examiner herself was responsible for

failing to elicit such information. However, to the extent that the Secretary is asserting that a

veteran's statements can never provide an adequate basis on which to formulate an opinion

regarding additional functional loss during flares, that assertion is inconsistent with this Court's

case law and VA's own practice as set forth in VA's Clinician's Guide.5

Although the September 2015 examiner cannot be compelled to provide an opinion where,

consistent with the duties discussed above, she cannot do so without resorting to mere speculation

and explains the basis for this inability as per Jones, see 23 Vet.App. at 390, that does not relieve

the Board from the obligation to determine whether the examiner's inability results from a personal

lack of knowledge or experience and, if so, to attempt to obtain an opinion from a more qualified

examiner. See id. at 390-91. In the present circumstances, there is no indication in the Board

decision that the September 2015 VA examiner obtained all "procurable medical evidence" before

declining to offer an opinion as to flares. Nor, in light of VA's guidance to its clinicians, did the

Board sufficiently address whether the examiner's professed need to observe the veteran during

flares of his conditions reflected something other than her individual inability to provide the

5

This is not to say that an examiner or the Board is required to accept a veteran's allegations regarding his or

her flare-ups if such allegations are inconsistent with other reliable evidence.

11

requested opinion. As such, the Court cannot conclude that the Board complied with Jones in

accepting the September 2015 VA examination as adequate.

Because the record was not adequate to permit the Board to decide Mr. Sharp's claims for

evaluations in excess of 10% for right and left shoulder, hand, and elbow/forearm disabilities, the

Court will set aside the March 2016 decision and remand the matter. See Tucker v. West,

11 Vet.App. 369, 374 (1998) (explaining that remand is required where, inter alia, "the record is

otherwise inadequate"); see also Jones, 23 Vet.App. at 393-94. The Board must obtain a new VA

medical examination and opinion that adequately addresses additional functional loss, if any,

experienced during flares and substantially complies with the Board's November 2014 remand

order. Mr. Sharp is free to present any additional arguments and evidence to the Board on remand

in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).

See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that "[a] remand

is meant to entail a critical examination of the justification for [the Board's] decision," Fletcher v.

Derwinski, 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in

accordance with 38 U.S.C. § 7112.

III. CONCLUSION

Upon consideration of the foregoing, the Court will SET ASIDE the portions of the March

16, 2016, Board decision denying evaluations in excess of 10% for right and left shoulder, hand,

and elbow/forearm disabilities and REMAND those matters for additional development and

readjudication consistent with this decision. The balance of the appeal is DISMISSED.

12