Citation Nr: 18145647 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-16 793 DATE: October 29, 2018 ISSUES 1. Entitlement to an initial compensable disability rating for right hip strain with impairment of thigh. 2. Entitlement to an initial compensable disability rating for left hip strain with impairment of thigh. 3. Entitlement to an initial compensable disability rating for right hip strain with limitation of extension of thigh. 4. Entitlement to an initial compensable disability rating for left hip strain with limitation of extension of thigh. 5. Entitlement to a compensable disability rating for left hip strain with a femoral neck stress fracture. 6. Entitlement to a compensable disability rating for right hip strain with a femoral neck stress fracture. REMANDED Entitlement to an initial compensable disability rating for right hip strain with impairment of thigh is remanded. Entitlement to an initial compensable disability rating for left hip strain with impairment of thigh is remanded. Entitlement to an initial compensable disability rating for right hip strain with limitation of extension of thigh is remanded. Entitlement to an initial compensable disability rating for left hip strain with limitation of extension of thigh is remanded. Entitlement to a compensable disability rating for left hip strain with a femoral neck stress fracture is remanded. Entitlement to a compensable disability rating for right hip strain with a femoral neck stress fracture is remanded. REASONS FOR REMAND The Veteran had active service from June 2010 to February 2011 and from May 2011 to September 2011. This case comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. Jurisdiction was transferred to the RO in Philadelphia, Pennsylvania. The Veteran changed representatives during the pendency of this appeal. The Disabled American Veterans is now recognized as his representation. The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) noted the final sentence of § 4.59, which states “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” The Court found this sentence to be ambiguous because the regulation, considered as a whole, is meant to guide adjudicators in determining the proper level of disability of joints, and if the range of motion testing listed in the last sentence is not required, it is unclear how an adjudicator could adequately rate a claimant’s joint disability and account for painful motion. However, compelled by § 4.59’s place in the regulatory scheme (it preceded the disability rating schedule), the Court held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The Veteran was most recently afforded a VA examination in March 2015. In this case, it is unclear as to whether the 2015 VA examiner performed both active and passive / weight-bearing versus nonweight-bearing range of motion testing of the Veteran’s hips. Notably, in Correia, the Court found similar range of motion testing to be inadequate. As such, the Board finds that a VA examiner should, on remand, address all testing required per Correia. As also relevant, a more recent Court decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. A VA examiner should, on remand, address any flare-ups claimed by the Veteran, per Sharp. Finally, the Board notes that records indicated that the Veteran failed to appear for a July 2018 VA examination; however, there is no record of the Veteran being properly notified of the scheduled examination. Therefore, the Board finds that a remand is necessary to afford the Veteran another opportunity to appear for an examination. The AOJ should also verify the Veteran’s current mailing address before an examination is scheduled. To this point, the Board notes that in April 2018 correspondence, the Veteran requested reevaluation of his hip disabilities with his address listed in Delmar, Maryland. Subsequently, notice was sent to the Veteran in Georgetown, Delaware, in May 2018. Finally, VA treatment records in June 2018 list his address in Sharptown, Maryland. The Veteran is hereby notified that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claim. The consequence for failure to report for a VA examination without good cause for an original claim may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655(2017). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained to show that notice scheduling the examination was sent to his most recent mailing address of record. It must also be indicated whether any notice that was sent was returned as undeliverable. The matters are REMANDED for the following action: 1. Verify the Veteran’s current mailing address and then schedule him for a VA examination to assess the manifestations of the service-connected bilateral hip disabilities. A copy of the letter notifying the Veteran of the scheduled appointment should be associated with the electronic claims folder. The electronic record, to include a copy of this remand, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. The examiner(s) should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran’s hips, i.e., the extent of the Veteran’s pain-free motion. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on “weight-bearing,” please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is instructed to inquire whether there are periods of flare-ups. If the answer is “yes,” the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner must ALSO name the precipitating and alleviating factors. The examiner must ALSO estimate, “per [the] veteran,” to what extent, if any, they affect functional impairment. The examiner should also obtain a detailed clinical history from the Veteran and provide a thorough account and analysis of the manner in which the Veteran’s hip disabilities affects him in his everyday life, particularly the impact that it has on the Veteran’s ability to secure and follow a substantially gainful occupation. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 2. Review the examination report to ensure that it complies with the Board’s remand directives. Any inadequacies should be addressed prior to recertification to the Board. 3. Then, after undertaking any additional development that is deemed warranted, 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. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.M.K., Counsel