Citation Nr: 18150380 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 14-04 279 DATE: November 15, 2018 REMANDED Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the left hip is remanded. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the right hip is remanded. Propriety of the assignment of a separate rating for limitation of extension of the left hip, evaluated as 10 percent disabling as of October 1, 2010, is remanded. Propriety of the assignment of a separate rating for limitation of extension of the right hip, evaluated as 10 percent disabling as of October 1, 2010, is remanded. Entitlement to an initial compensable rating for hypertension is remanded. Entitlement to an initial compensable rating for residual surgical scars of the right foot is remanded. Entitlement to an initial rating in excess of 10 percent for degenerative changes of the thoracolumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1980 to July 1984, and from October 1984 to September 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In December 2015, the Board remanded the case for additional development and it now returns for further appellate review. While on remand, a May 2016 rating decision awarded separate 10 percent ratings for limitation of extension of the Veteran’s left and right hips, effective October 1, 2010. The Board considers such separate disability ratings as part and parcel of the increased rating claims for the left and right hip disabilities on appeal and, therefore, such are included on the title page of this decision. The Board notes that an August 2015 rating decision, as relevant, denied service connection for bilateral pes planus and carpel tunnel syndrome of the right and left wrists. Thereafter, the Veteran entered a notice of disagreement as to such denials in August 2016. Although a statement of the case has not yet been issued, according to the Veterans Appeals Control and Locator System, the claims are still being developed by the Agency of Original Jurisdiction (AOJ). As such, the Board declines jurisdiction over these issues until such time as an appeal to the Board is perfected. 1. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the left hip. 2. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the right hip. 3. Propriety of the assignment of a separate rating for limitation of extension of the left hip, evaluated as 10 percent disabling as of October 1, 2010. 4. Propriety of the assignment of a separate rating for limitation of extension of the right hip, evaluated as 10 percent disabling as of October 1, 2010. 5. Entitlement to an initial compensable rating for hypertension. 6. Entitlement to an initial compensable rating for residual surgical scars of the right foot. 7. Entitlement to an initial rating in excess of 10 percent for degenerative changes of the thoracolumbar spine. In accordance with the Board’s December 2015 remand, the Veteran was afforded VA examinations in April 2016 so as to determine the nature and severity of his bilateral hip, hypertension, scar, and back disabilities. However, the Board finds that another remand is necessary in order to afford him contemporaneous VA examinations so as to address the current nature and severity of his aforementioned disabilities. In this regard, in an August 2018 Informal Hearing Presentation, the Veteran’s representative requested that the Veteran’s claims be remanded for new examinations inasmuch as his disabilities had worsened since his last VA examinations and the existing evidence was too old to adequately evaluate the current state of his disabilities. Therefore, as the evidence suggests that the Veteran’s bilateral hip, hypertension, scar, and back symptomatology may have increased in severity since the last VA examinations, a remand is necessary in order to schedule him for appropriate VA examinations in order to assess the current nature and severity of such service-connected disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). In conducting the examinations for the bilateral hip and back disabilities, the findings should comply with the holdings in Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Furthermore, the Board finds a remand is necessary in order to obtain potentially relevant treatment records. In this regard, it is unclear whether the Veteran continues to receive treatment through VA as the most recent treatment records associated with the record are dated in February 2016. Furthermore, as noted in the Board’s December 2015 remand, the Veteran has reported ongoing treatment through Tricare. Therefore, while on remand, any outstanding records should be obtained for consideration in the Veteran’s appeal. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records, to include VA treatment records dated from February 2016 to the present as well as any records from Tricare, should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Schedule the Veteran an appropriate VA examination to determine the nature and severity of his bilateral hip disabilities. The record, to include a complete copy of this remand, must be made available to the examiner. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran’s bilateral hip disabilities. (B) The examiner should record the range of motion of the left and right hips observed on clinical evaluation in terms of degrees. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that so. (C) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (E) If the Veteran endorses experiencing flare-ups of his left and/or right hip, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (F) The examiner is further requested to indicate whether the Veteran’s bilateral hip disability results in flail joint of the hip, or impairment of the femur due to fracture or malunion. (G) The examiner should comment upon the functional impairment resulting from the Veteran’s bilateral hip disability. All opinions expressed should be accompanied by supporting rationale. 3. Schedule the Veteran an appropriate VA examination to determine the nature and severity of his hypertension. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should identify the current nature and severity of all manifestations of the Veteran’s hypertension. He or she should specifically state whether he requires continuous medication for control. The examiner should also comment upon the functional impairment resulting from the Veteran’s hypertension. All opinions expressed should be accompanied by supporting rationale. 4. Schedule the Veteran an appropriate VA examination to determine the nature and severity of his right foot scars. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should identify the current nature and severity of all manifestations of the Veteran’s right foot scars, to include the number and size of such scars, and whether they are painful and/or unstable. The examiner should also comment upon the functional impairment resulting from the Veteran’s right foot scars. All opinions expressed should be accompanied by supporting rationale. 5. Schedule the Veteran an appropriate VA examination to determine the nature and severity of his back disability. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran’s back disability. (B) The examiner should record the range of motion of the lumbar spine observed on clinical evaluation in terms of degrees. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that so. (C) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (D) If the Veteran endorses experiencing flare-ups of his back disability, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (E) The examiner is further requested to indicate whether the Veteran’s back disability results in any objective neurologic impairments and, if so, the nature and severity of such neurologic impairment. (F) The examiner should also state whether the Veteran has intervertebral disc syndrome and, if so, the total duration of any incapacitating episodes over the past 12 months. The examiner is advised that an “incapacitating episode” is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. (G) The examiner should comment upon the functional impairment resulting from the Veteran’s back disability. All opinions expressed should be accompanied by supporting rationale. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel