Citation Nr: 1331303 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 08-33 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right hip disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to an increased rating for left knee disability, currently evaluated as 10 percent disabling. 4. Entitlement to an increased rating for right knee disability, currently evaluated as 10 percent disabling. 5. Entitlement to an initial evaluation in excess of 10 percent for left hip disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran had active service from February 1987 to January 1991 and from January 2003 to August 2003. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. These issues, along with the issue of entitlement to TDIU, were the subject of a prior May 2012 remand. As entitlement to TDIU was granted in a May 2013 rating decision, the remaining issues in appellate status are as noted above. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board regrets that a further remand is warranted in this case. As to the Veteran's claims of entitlement to increased ratings for left knee, right knee, and a left hip disability, these disabilities were remanded in May 2012 for more comprehensive examinations, discussing both instability and pain with active motion or repetition of motion, as per DeLuca v. Brown, 8 Vet. App. 202 (1995). For both the Veteran's left and right knee, as well as left hip, the examiner indicated on the one hand, that the Veteran did not have additional limitation of range of motion of the knees and left hip following repetitive use testing, however, the examiner also indicated later that the Veteran did have, after repetition, less movement than normal in both knees and his left hip. The Board is unable to reconcile these apparently contradictory opinions provided by the same examiner during the same examination. As such, the Board is of the opinion that the Veteran should be provided with further VA examinations for his knees and left hip that more accurately reflect the limitation of motion the Veteran has due to pain or repetitive movement. As to the Veteran's service connection claims for right hip and back disabilities, these claims were also remanded in May 2012 for more comprehensive examinations, specifically examinations with opinions as to whether these claimed disabilities were permanently aggravated by service connected conditions. While a June 2012 VA examiner indicated that these disabilities were not related to service, he did not offer any opinions for either disability as to whether the Veteran might have a right hip or back disability which was aggravated by a service connected disability. The Board recognizes that the examiner found that the Veteran did not have any current right hip disability; however, the Board is somewhat concerned about the overall quality of this examination, as a February 2009 VA X-ray indicates that the Veteran was found to have mild degenerative changes of the right hip. A Remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the Remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the Remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Id. In light of the inconsistencies in these examinations, in light of the Veteran's representative's specific request for further examination in a June 2013 informal hearing presentation, and in light of Stegall as well, the Board finds that the Veteran must be provided with further more comprehensive VA examinations for all these disabilities, including opinions, considering all evidence of record, as to whether the Veteran has a back or right hip disability which was permanently aggravated by a service connected disability, and specific opinions indicating what additional limitation of range of motion the Veteran has of the knees and left hip following repetitive use testing. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination to determine the etiology of his claimed right hip and low back disabilities and to determine the severity of his service connected bilateral knee and left hip disabilities. The claims file and a copy of this remand should be forwarded to the examiner for review. A full history should be elicited from the Veteran during the course of the examination, the pertinent details of which should be recited in the examination report. All necessary testing should be conducted, the results of which should be detailed in the examination report. Right Hip and Low Back Following examination, interview of the Veteran, and review of the claims file, the examiner should identify all current disabilities of the right hip and low back. The examiner MUST provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any currently present right hip or low back disability was either caused OR permanently aggravated by the Veteran's service-connected bilateral knee and left hip disabilities. The examiner should specifically comment on prior diagnoses of right hip strain, and a February 2009 VA X-ray report showing mild degenerative joint disease of the right hip, in offering any opinion. Knees and Left Hip Following examination, interview of the Veteran, and review of the claims file, the examiner should identify all manifestations of the Veteran's bilateral knee and left hip disabilities. The examiner should provide the results of range of motion testing of the knees and left hip, and specifically identify any excursion of motion accompanied by pain. The examiner should identify any objective evidence of pain and assess the extent of any pain. The extent of any incoordination, weakened movement and excess fatigability on use should be described. To the extent possible, the functional impairment due to incoordination, weakened movement and excess fatigability MUST be assessed in terms of additional degrees of limitation of motion. As such, the examiner should indicate the point at which pain or any other factor limits motion, to include during flare-ups. The examiner should specifically indicate whether there is instability of either knee. If so, the examiner should indicate whether the severity of such is mild, moderate, or severe. If any of the above inquiries cannot be addressed, the examiner should provide a complete explanation as to why they cannot be addressed. The complete rationale for all opinions expressed should be provided in the examination report, to include reference to pertinent evidence where appropriate. If the examiner determines that he is unable to provide the requested opinion(s) without resort to speculation, he must provide a reasoned explanation for such conclusion, which includes appropriate references to pertinent evidence of record. 2. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 , 3.655. 3. Review the examination report for compliance with the Board's directives. Any deficiencies should be resolved prior to recertification to the Board. 4. Upon completion of the above actions, readjudicate the claims on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).