Citation Nr: 18156767 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 12-21 955 DATE: December 11, 2018 REMANDED Issue of entitlement to an initial rating in excess of 10 percent prior to November 12, 2015, for degenerative disc disease and intervertebral disc disease of the lumbar spine, is remanded. Issue of entitlement to an initial rating in excess of 10 percent for limitation of flexion of the right hip, status post labral tear repair and debridement surgery, is remanded. Issue of entitlement to an initial compensable rating prior to November 12, 2015, for limitation of extension of the right hip, status post labral tear repair and debridement surgery, is remanded. Issue of entitlement to an initial rating in excess of 10 percent for patella chondromalacia of the right knee is remanded. REASONS FOR REMAND The Veteran served on active duty from October 2003 to January 2011. This appeal to the Board of Veterans’ Appeals (Board) arose from an April 2011 rating decision issued by the Department of Veterans Affairs (VA). The April 2011 rating decision granted service connection for degenerative disc disease and intervertebral disc disease of the lumbar spine; right hip, status post labral tear repair and debridement surgery; and patella chondromalacia of the right knee, but found each disability noncompensable. The Veteran perfected her appeal. See April 2011 Notice of Disagreement (NOD); May 2012 Statement of the Case (SOC); July 2012 Substantive Appeal (VA Form 9). During pendency of the appeal, a March 2013 rating decision was issued that granted a 10 percent rating for degenerative disc disease and intervertebral disc disease of the lumbar spine, effective November 12, 2015. The March 2013 rating decisional also granted a 10 percent rating, based on painful motion, for limitation of flexion of the right hip, status post labral tear repair and debridement surgery, effective November 12, 2015. A noncompensable evaluation was granted for limitation of extension of the right hip, status post labral tear repair and debridement surgery. The Veteran testified before the undersigned Veterans Law Judge in a November 2014 hearing. A transcript of the hearing is associated with the claims file. In June 2015, the Board remanded the above claims for further development, including affording the Veteran additional VA examinations. The January 2016 rating decision granted a higher initial rating of 40 percent for the Veteran’s degenerative disc disease and intervertebral disc disease of the lumbar spine, effective November 12, 2015; an initial 10 percent rating for patellar chondromalacia of the right knee (extension), effective November 12, 2015; and an initial 10 percent rating for limitation of extension of the right hip, status post labral tear repair and debridement surgery. In April 2016, the Board granted a 10 percent rating, but not higher, for patella chondromalacia of the right knee, based on limitation of flexion, for the entire period on appeal. The Board denied a rating in excess of 10 percent for limitation of flexion of the right hip, status post labral tear repair and debridement surgery. For the Veteran’s limitation of extension of the right hip, status post-labral tear repair and debridement surgery, the Board denied a compensable rating prior to November 12, 2015, and an initial rating in excess of 10 percent since November 12, 2015. The Board also denied an initial rating in excess of 10 percent for degenerative disc disease and intervertebral disc disease of the lumbar spine prior to November 12, 2015, and a rating in excess of 40 percent since November 12, 2015. The Veteran appealed the April 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). In March 2018, the Court set aside and remanded the parts of the June 2016 Board decision on whether the Veteran is entitled to an initial rating in excess of 10 percent for patella chondromalacia of the right knee; an initial rating in excess of 10 percent for limitation of flexion of the right hip, status post labral tear repair and debridement surgery; an initial compensable rating prior to November 12, 2015, for limitation of extension of the right hip, status post labral tear repair and debridement surgery; and an initial rating in excess of 10 percent prior to November 12, 2015, for degenerative disc disease and intervertebral disc disease of the lumbar spine. The Court held that the Board failed to consider January 2010, February 2010, and October 2010 service treatment records in evaluating the Veteran’s lower back, right hip, and right knee disabilities. The Court also held that clarification is needed on how the November 2015 VA examiner considered the right side weakness of movement and disturbance of locomotion noted during the examination on the Veteran’s right hip and right knee range of motion. Lastly, the Court held that the Veteran’s right knee, right hip, and lumbar spine should be tested for active and passive motion, and in weight bearing and nonweight bearing positions, as required by 38 C.F.R. § 4.59 and Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). 1. Entitlement to an initial rating in excess of 10 percent prior to November 12, 2015, for degenerative disc disease and intervertebral disc disease of the lumbar spine is remanded. As discussed in the March 2018 Court decision, while the claims file contains contemporaneous VA examinations regarding the Veteran’s degenerative disc disease and intervertebral disc disease of the lumbar spine, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements or pain on weight-bearing testing. 2. Entitlement to an initial rating in excess of 10 percent for limitation of flexion of the right hip, status post labral tear repair and debridement surgery, and to a compensable rating for limitation in extension prior to November 12, 2015, are remanded. As discussed above regarding the Veteran’s lumbar spine disability, a VA examination that contains passive range of motion measurements and pain on weight bearing testing for the Veteran’s right hip disability is also needed. Correia, 28 Vet. App. at 168. In addition, a VA examiner’s opinion is needed to clarify as whether the Veteran has right side weakness of movement and disturbance of locomotion and, if so, how it affects her right hip range of motion. The November 2015 VA examiner indicated that the Veteran had additional factors contributing to her disability from right side weakened movement, disturbance of locomotion, interference with sitting, and interference with standing. It is unclear if the additional factors contribute to additional limitation in her right hip range of motion. 3. Issue of entitlement to an initial rating in excess of 10 percent for patella chondromalacia of the right knee is remanded. Likewise, as discussed above regarding the Veteran’s lumbar spine and right hip disability, a VA examination that contains passive range of motion measurements and pain on weight bearing testing for the Veteran’s right knee disability is needed. Correia, 28 Vet. App. at 168. A VA examiner’s opinion is also needed to clarify as to whether the Veteran has right side weakness of movement and disturbance of locomotion and, if so, how it affects her right knee range of motion. The November 2015 VA examiner indicated that the Veteran had additional factors contributing to her disability from right side weakened movement, disturbance of locomotion, interference with sitting, and interference with standing. It is unclear if the additional factors contribute to additional limitation in her right knee range of motion. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the provider(s) of any evaluations and/or treatment received for her lumbar spine, right hip, and right knee, to specifically include degenerative disc disease and intervertebral disc disease of the lumbar spine, right hip, status post-labral tear repair and debridement surgery, and patella chondromalacia of the right knee. Ask the Veteran to provide authorizations for VA to obtain records of any such private treatment. Obtain complete clinical records of all pertinent evaluations and treatment (records of which are not already associated with the claims file) from the providers identified. If any records sought are unavailable, the reason for their unavailability must be noted in the claims file. If a private provider does not respond to VA’s request for the identified records sought, the Veteran must be so notified and reminded that it is ultimately her responsibility to ensure that private treatment records are received. 2. Schedule the Veteran for an examination of the current severity of her degenerative disc disease and intervertebral disc disease of the lumbar spine. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to her degenerative disc disease and intervertebral disc disease of the lumbar spine alone and discuss the effect of the Veteran’s her degenerative disc disease and intervertebral disc disease of the lumbar spine on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner is asked to comment, if possible, on whether the current examination findings are consistent with the Veteran’s symptoms due to her degenerative disc disease and intervertebral disc disease of the lumbar spine for the period on appeal from January 24, 2011, to November 12, 2015. The examiner is also asked to comment on whether the January 2010 service treatment records showing thoracolumbar flexion range of motion testing ranging from 40 to 45 degrees are consistent with the Veteran’s degenerative disc disease and intervertebral disc disease of the lumbar spine symptoms from January 24, 2011, to November 12, 2015. The examiner is also asked to comment on how significant are the “Waddell Signs” findings to those testing results. 3. Schedule the Veteran for an examination of the current severity of her right hip, status post labral tear repair and debridement surgery. If possible, obtain the same examiner who performed the November 2015 VA examination of the hips. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to her right hip alone and discuss the effect of the Veteran’s right hip, status post labral tear repair and debridement surgery, on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner is asked to comment, if possible, on whether the current examination findings are consistent with the Veteran’s symptoms due to her right hip, status post labral tear repair and debridement surgery, for the entire period on appeal, from January 24, 2011, to present. The examiner is also to address the November 2015 VA examination findings indicating that there are additional factors contributing to the Veteran’s right hip disability due to right side weakened movement, disturbance of locomotion, and interference with sitting and standing. The examiner is asked to comment on the effects, if any, of those additional restrictions on the Veteran’s right hip range of motion. 4. Schedule the Veteran for an examination of the current severity of her patellar chondromalacia of the right knee. If possible, obtain the same VA examiner who performed the November 2015 VA examination of the right knee. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to her right knee alone and discuss the effect of the Veteran’s patellar chondromalacia of the right knee on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner is asked to comment, if possible, on whether the current examination findings are consistent with the Veteran’s symptoms due to her patellar chondromalacia of the right knee for the entire period on appeal, from January 24, 2011, to present. The examiner is also to address the November 2015 VA examination findings indicating that there are additional factors contributing to the Veteran’s right knee disability due to right side weakened movement, disturbance of locomotion, and interference with sitting and standing. The examiner is asked to comment on the effects, if any, of those additional restrictions on the Veteran’s right knee range of motion. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Lin, Associate Counsel