Citation Nr: 18155633 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 17-14 329 DATE: December 4, 2018 REMANDED Entitlement to a rating more than 20 percent for chronic lumbar strain is remanded. Entitlement to a rating more than 10 percent for residuals, status post right ilium reconstruction surgery (impairment of the thigh) is remanded. Entitlement to an initial compensable rating for residuals, status post left hip reconstruction surgery (impairment of the thigh) for the period prior to May 10, 2013 is remanded. Entitlement to an initial compensable rating for residuals, status post right ilium reconstruction surgery (limitation of flexion of thigh) is remanded. Entitlement to a compensable rating for residuals, status post left hip reconstruction surgery (limitation of extension of the thigh) is remanded. Entitlement to an initial compensable rating for residuals, status post left hip reconstruction surgery (limitation of flexion of the thigh) is remanded. Entitlement to an effective date earlier than May 10, 2013 for the assignment of a 20 percent rating for residuals, status post left hip reconstruction surgery (impairment of the thigh) is remanded. Entitlement to an effective date earlier than May 10, 2013 for the assignment of a 10 percent rating for residuals, status post right ilium reconstruction surgery (impairment of the thigh) is remanded. Whether the discontinuance of the 10 percent rating for residuals, status post right ilium reconstruction surgery (limitation of extension of the thigh), effective May 10, 2013 was proper is remanded. REASONS FOR REMAND The Veteran had active duty service from July 1989 to July 1993. The Veteran also had periods of service with the National Guard in the years thereafter. The Board observes a May 2018 rating decision that denied entitlement to an effective date earlier than March 4, 2009 for the assignment of a 100 percent rating for posttraumatic stress disorder (PTSD) and declined to revise the effective date assigned for special monthly compensation (SMC) at the housebound rate. The Veteran is permitted to appeal these issues, but the Board presently lacks jurisdiction over them. 1. Entitlement to a rating more than 20 percent for chronic lumbar strain is remanded. The Veteran’s most recent and pertinent VA back examination occurred in May 2013, which resulted in a 20 percent rating. Since that time, the Veteran’s treatment records reveal complaints of additional back pain and a worsening of his symptoms. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran’s contention that the pertinent disability had increased in severity). Given the above, a contemporaneous VA back examination is thereby warranted. 2. Entitlement to an initial compensable rating for residuals, status post left hip reconstruction surgery (impairment of the thigh) for the period prior to May 10, 2013; 3. Entitlement to an initial compensable rating for residuals, status post right ilium reconstruction surgery (limitation of flexion of thigh); 4. Entitlement to a compensable rating for residuals, status post left hip reconstruction surgery (limitation of extension of the thigh); 5. Entitlement to a rating more than 10 percent for residuals, status post right ilium reconstruction surgery (impairment of the thigh) and; 6. Entitlement to an initial compensable rating for residuals, status post left hip reconstruction surgery (limitation of flexion of the thigh) are remanded. Similarly, the Veteran’s most recent and pertinent VA hip examination also took place in May 2013, which resulted in the currently assigned ratings. Unfortunately, this examination is now inadequate for VA rating purposes. In this regard, the Court has recently held that the final sentence of 38 C.F.R. § 4.59 (2017) requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). Here, the Veteran’s May 2013 VA examination does not include any section for specifying ranges of motion as on active and/or passive testing or on weight-bearing. Therefore, as the May 2013 VA examination is inadequate under the holding in Correia, a new VA examination is necessary to address the severity of the Veteran’s service-connected left and right hip disorders. 7. Entitlement to an effective date earlier than May 10, 2013 for the assignment to a 20 percent rating for residuals, status post left hip reconstruction surgery (impairment of the thigh); 8. Entitlement to an effective date earlier than May 10, 2013 for the assignment of a 10 percent rating for residuals, status post right ilium reconstruction surgery (impairment of the thigh) and; 9. Whether the discontinuance of the 10 percent rating for residuals, status post right ilium reconstruction surgery (limitation of extension of the thigh), effective May 10, 2013 was proper are remanded. Here, because a decision on the remanded issues above could significantly impact a decision on the issues of entitlement to earlier effective dates and whether the discontinuance of the 10 percent rating for residuals, status post right ilium reconstruction surgery (limitation of extension of the thigh), effective May 10, 2013 was proper, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Remand of the claim as to these issues is therefore required as well. Finally, it is apparent that the Veteran has received some VA and private treatment for his claimed conditions. The latest available treatment reports are from approximately 2017. All outstanding treatment records should also be obtained. The matters are REMANDED for the following action: 1. With the assistance of the Veteran as necessary, identify and obtain any outstanding, relevant treatment records and associate them with the Veteran’s electronic claims file. If the Agency of Original Jurisdiction (AOJ) cannot locate or obtain such records, it must specifically document the attempts that were made to locate or obtain them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. All attempts to obtain records should be documented in the Veteran’s electronic claims file. In the paragraphs below, examinations are requested regarding claims for increased ratings. These examinations may be conducted by a single qualified examiner if otherwise indicated, as long as complete responses are recorded. That separate paragraphs are used need not be taken to mean that separate examinations need to be conducted. 2. Then, after pertinent records are obtained, but whether or not records are obtained, the Veteran should be afforded a VA orthopedic-type examination to ascertain the current severity and manifestations of his service-connected chronic lumbar strain. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the electronic claims file. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran’s chronic lumbar strain under the rating criteria. In particular, the examiner should provide the range of motion of the thoracolumbar spine in degrees and state whether there is any form of ankylosis. He or she should also indicate whether there is any muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The examiner should further state the total duration of incapacitating episodes over the past 12 months, if any, and identify any/all neurological manifestations of the chronic lumbar strain. Evidence used in making this determination should be highlighted. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion). The examiner must also address the Veteran’s chronic lumbar strain in terms of passive and active motion, and weight-bearing and non-weight bearing motion. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. All prior reports, should be discussed and/or reconciled, as necessary. 3. Then, schedule the Veteran for a VA orthopedic-type examination to evaluate the current severity and manifestations of his service-connected left and right hip disorders. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the electronic claims file. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The VA examination must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The examiner should indicate whether there is objective evidence of pain on motion, weakness, excess fatigability, instability, and/or incoordination of each hip and to what extent the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. 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 is so. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. All prior reports, should be discussed and/or reconciled, as necessary. 4. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. The issues of entitlement to earlier effective dates and whether the discontinuance of the 10 percent rating for residuals, status post right ilium reconstruction surgery (limitation of extension of the thigh), effective May 10, 2013 was proper should also be readjudicated, as needed. If a report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Miller, Associate Counsel