Citation Nr: 1304136 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 10-01 912 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating higher than50 percent since October 1, 2008, for a left total hip replacement. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from January 1957 to June 1984. This appeal to the Board of Veterans' Appeals (Board/BVA) is from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. A May 2008 decision granted service connection for left total hip replacement and assigned an initial 100 percent rating for this disability retroactively effective as of August 22, 2007. A lesser 30 percent rating would take effect prospectively as of October 1, 2008. Another RO decision since issued in November 2009 determined the Veteran was entitled to the temporary 100 percent rating as of August 22, 2007, under the provisions of 38 C.F.R. § 4.30 ("Paragraph 30") to compensate him for surgical or other treatment for this disability necessitating convalescence. The 100 percent rating for this disability also was continued from October 1, 2007 to October 1, 2008, so for another year, at which time a lesser 50 percent rating took effect. The RO also determined he was entitled to special monthly compensation (SMC) from August 22, 2007 to October 1, 2008, when he had those 100 percent ratings, because he was housebound. He since has continued to appeal, requesting a rating higher than 50 percent for this disability since October 1, 2008, i.e., for when he did not have a 100 percent rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (it is presumed a Veteran is requesting the highest possible rating for a disability for all time periods at issue, unless he expressly indicates otherwise). In August 2010 he called the RO to also file for an increase in the rating for his right hip disability - which, like his left hip disability, is rated as 50-percent disabling. He indicated both hips were really bothering him lately, the reason he was initiating claims, so the RO started the process of developing the additional claim concerning his right hip disability since his other claim concerning the rating for his left hip disability already was on appeal to the Board. There was another contact to this same effect in September 2010 when he reiterated that he wanted an increase for both hips due to the degenerative arthritis. So the RO continued processing the claim concerning his right hip, sending him a Veterans Claims Assistance Act (VCAA) notice and development letter in December 2010. He submitted his VCAA notice response form later in December 2010 and a letter requesting a 70 percent rating for each hip. The RO subsequently had him undergo a VA compensation examination in January 2011. The primary purpose of that examination was to reassess the severity of his right hip disability, but the examiner also included findings concerning the left hip disability. After considering the results of that examination, however, the RO issued a decision in July 2011 confirming and continuing (C&C) the existing 50 percent rating for the right hip disability. The RO indicated it was not additionally addressing the rating for the left hip disability in that decision because the claim concerning the left hip replacement was currently under appeal. The Board advanced the appeal of this claim on the docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). Since, however, this claim concerning the rating for the left hip disability required further development before being decided on appeal, in April 2012 the Board remanded this claim to the RO via the Appeals Management Center (AMC) in Washington, DC. The AMC since has issued a decision in October 2012, on remand, granting service connection for limitation of flexion of the left thigh because it is associated with the left hip disability. See 38 C.F.R. § 3.310(a) and (b), permitting service connection on this secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The AMC assigned a separate 10 percent rating for this additional disability as of January 21, 2011, the date of a VA compensation examination. The AMC also granted service connection for impairment of the left thigh, also as secondary to the service-connected disability of left total hip replacement, and assigned an additional, also separate, 10 percent rating for that as well, also retroactively effective as of the VA compensation examination on January 21, 2011. Still additionally, the AMC granted service connection for limitation of extension of the left thigh as secondary to the left total hip replacement and assigned a separate 0 percent (i.e., noncompensable) rating for that, also retroactively effective as of the VA compensation examination on January 21, 2011. The Veteran has not since, in response, separately appealed either these ratings or effective date, and he has to before the Board would have jurisdiction to consider these other claims. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). As concerning his remaining claim for a rating higher than 50 percent for his left total hip replacement since October 1, 2008, the AMC continued to deny this claim in a supplemental statement of the case (SSOC) that it also issued in October 2012, so this remaining claim is again before the Board. There was not compliance with the Board's remand directives concerning this claim, however, so the Board regrettably must again remand this claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand directives, and the Board itself commits error, as a matter of law, in failing to ensure compliance). REMAND As noted in the prior remand, the Veteran was afforded a VA examination in January 2011. Although the examination was performed in connection with his claim concerning his right hip disability, the examiner nonetheless recorded findings also pertaining to the left hip disability. But he did not provide all of the findings required to properly rate the left hip disability, hence, the reason the Board remanded this claim in April 2012 for this supplemental medical opinion. See 38 C.F.R. § 4.2, indicating it is incumbent upon the Board to return an inadequate examination report to provide the necessary information. Specifically, the Board requested the examiner to provide additional information regarding the severity of the Veteran's left hip disability in terms of the rating criteria found in 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5054. The examiner therefore was to comment on whether the Veteran's left hip disability was characterized by "moderately severe" versus "markedly severe" residuals such as weakness, pain, or limitation of motion. The examiner was also asked to comment on whether this disability required the use of crutches. Unfortunately, the AMC only requested the examiner to review the claims file generally. Consequently, none of the information specifically requested in the Board's remand instructions was provided. And although, as mentioned, the AMC since has granted service connection for additional disabilities associated with the left hip disability (namely, for limitation of flexion and extension and other impairment of the left thigh), and assigned separate ratings for these additional disabilities, that is, apart from the rating for the underlying left hip disability itself, that grant of service connection for these additional disabilities was not predicated on the supplemental report obtained in July 2012 following and as a result of the Board's April 2012 remand, instead, on the results of the Veteran's prior January 2011 VA compensation examination - albeit by the same examiner that submitted the supplemental report in July 2012. In Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court held that a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two." Neives-Rodriguez, at 301. Most of the probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight, and mere review of the claims file does not substitute for a lack of a reasoned analysis. Id., at 304. Thus, as concerning this July 2012 supplemental report, there has not been compliance, even what could be considered substantial compliance, with the Board's remand directives in the provision of this supplemental report. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board resultantly is obligated to again remand this claim to obtain the information that should have been requested and provided in this most recent July 2012 supplemental report. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate). Accordingly, this claim is again REMANDED for the following additional development and consideration: 1. The claims file, including a copy of this remand, must be forwarded to the January 2011 VA examiner who submitted the supplemental report in July 2012. This repeat referral is required because still additional information is needed concerning the following: (a) Whether the Veteran's left hip replacement results in "moderately severe" versus "markedly severe" residuals of pain, weakness, and/or limited motion. (b) Whether the Veteran's left hip replacement results in painful motion or weakness severe enough to require the use of crutches. In addressing these questions, the examiner must specify the extent to which motion of the left hip is additional limited by pain, including during "flare-ups" or prolonged, repeated use of this hip. She must also specify whether, and to what extent, there is additional limitation of motion above and beyond the normal circumstance. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. If reexamination is needed to make these additional determinations, then have the Veteran reexamined. 2. Ensure this additional report contains responses to the questions posed above. If not, take corrective action to avoid yet another remand. 38 C.F.R. § 4.2 (2012). 3. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals