Citation Nr: 1804165 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 12-21 022 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial compensable disability rating for a right hip disability and a rating in excess of 10 percent beginning July 6, 2016. REPRESENTATION Veteran represented by: Brian Hill, attorney ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2006 to February 2010. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded by the Board in May 2016 for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In the May 2016 remand order, the Board instructed to AOJ to afford the Veteran a current examination of his right hip disability. The Board instructed the VA right hip examiner to (1) elicit a detailed history of relevant symptoms from the Veteran and (2) assess limitation of motion including additional limitation due to pain. While the AOJ obtained a right hip examination in July 2016, the examination does not include a detailed history of the Veteran's symptoms including the frequency, severity, and duration of flare-ups. The examiner indicated that there was functional loss during flare-ups, but the examiner was unable to describe it in terms of range of motion. The examiner noted only that the Veteran has more difficulty sitting for long periods and getting up from a seated position. On appeal, the Board has received a December 2017 statement from the Veteran noting that during the period at issue, he experienced flare-ups as frequently as two to three times per day. The Veteran noted that the only way to resolve the pain was to lay flat on his back for thirty minutes and that he could not function at all during that time as slight movement would cause shooting pains. The Veteran indicated that these symptoms have not improved over time and that his current job allows him time to lay down during the day. In a December 2017 brief, the Veteran's attorney noted the prior examinations are inadequate because the assessments provided do not factor in the Veteran's history of his flare-ups or otherwise explain why such an assessment is not possible. See Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017). On remand, the AOJ should afford the Veteran a new VA examination of his right hip disability in order to assess the Veteran's functional limitations in more detail with reference to the Veteran's statements about the frequency, duration, and severity of his flare-ups over time. Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Veteran and his representative and request their assistance in identifying any relevant outstanding VA records and private treatment records. The AOJ should make reasonable attempts to locate any outstanding relevant records and associate them with the Veteran's claims file. 2. After undertaking the development listed above to the extent possible, the AOJ should schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the current severity of the Veteran's service-connected right hip disability. The claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should specifically address the following: a) Range of motion testing should be undertaken, to include after repetitive use. The examiner is to report the range of motion measurements in degrees. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; (2) after repetitive use over time; (3) in weight bearing; and (4) as a result of pain, weakness, fatigability, or incoordination. The examiner should also address whether there is a difference in active range of motion, versus passive range of motion. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In any event, the examiner should fully describe any associated functional limitations. b) The examiner should specifically offer an opinion as to the impact of any functional loss due to pain during flare-ups, considering all procurable and assembled data, and by obtaining all tests and records that might reasonably illuminate the medical analysis. The examiner must, at a minimum, ask the Veteran to describe the severity, frequency, duration, or functional loss manifestations related to flare-ups. c) The examiner should specifically offer an opinion as to the impact of repetitive use over time on his functional ability. If the examiner deems it necessary, the Veteran should be asked to engage in repetitive use over time prior to the examination. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. After completing the above actions and any other necessary development, the claim must be readjudicated. If the claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter 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 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).