Citation Nr: 18161021 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 11-00 818 DATE: December 28, 2018 REMANDED Entitlement to service connection for a right hip disorder is remanded. Entitlement to an initial evaluation higher than 10 percent for degenerative joint disease (DJD) of the left knee is remanded. Entitlement to an initial evaluation higher than 10 percent for degenerative joint disease (DJD) of the right knee is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served honorably in the Army from September 2005 to January 2006 with subsequent service in the Army Reserves. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In May 2016, the Board denied increased evaluations for the Veteran’s bilateral knee DJD and for his left hip strain and bilateral foot degenerative changes. The Veteran partially appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an April 2017 Court Order and Joint Motion for Partial Remand, the Court vacated the Board’s denials as to the Veteran’s bilateral knee DJD. In February 2018, the Board remanded the Veteran’s increased rating claims for his service-connected bilateral knee disabilities for further development. Also in the May 2016 Board decision, the Board remanded the issues of entitlement to service connection for a right hip disorder and entitlement to a TDIU. This portion of the appeal has since been returned to the Board. 1. Service Connection A Right Hip Disability A remand is required to secure an adequate VA examination and opinion regarding the etiology of the Veteran’s right hip disorder. When VA undertakes to obtain an opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In May 2016, the Board remanded the issue of entitlement to service connection for a right hip disability because the examiner failed to address the Veteran’s right hip problems. The Veteran asserts that she injured her right hip in a fall in service. At an April 2017 VA examination, the examiner opined that it is less likely than not that a right hip disorder had is onset during, or was caused by, the Veteran’s active service, specifically to include a fall from a scaffold in Germany. The examiner determined that there was no diagnosed right hip disorder. Additionally, the examiner opined that it was less likely than not that a right hip disorder was proximately due to or the result of the Veteran’s service-connected left hip, bilateral knee, and/or bilateral foot disabilities, to include any associated symptomatology with those disabilities such as abnormal gait or weightbearing. Significantly, however, the examiner failed to consider a January 2015 VA treatment record that noted the Veteran’s right hip was now decompensating. The Veteran received an additional VA examination in October 2018. The examiner opined that it is less likely than not that a right hip disorder had is onset during, or was caused by, the Veteran’s active service, specifically to include a fall from a scaffold in Germany. The examiner found no current right hip disorder and noted the perception of pain in an anatomic location does not necessarily mean a condition of that anatomic location such as the example of referred pain or widespread, migrating pain such as in fibromyalgia. The examiner explained that there was no mention of right hip symptomatology around the time of the injury. Additionally, the examiner opined that it was less likely than not a right hip disorder was proximately due to, or the result of, the Veteran’s service-connected left hip, bilateral knee, and/or bilateral foot disabilities, to include any associated symptomatology with those disabilities such as abnormal gait or weightbearing. The examiner addressed the January 2015 VA treatment record and stated that it was more likely than not that the treatment provider was paraphrasing the Veteran’s statements. Lastly, the examiner opined that it is less likely than not any right hip disorder has been chronically worsened beyond its natural progression by the Veteran’s service-connected left hip, bilateral knee, and/or bilateral foot disabilities, to include any associated symptomatology with those disabilities such as abnormal gait or weightbearing. The examiner explained that the record reveals no biomechanical or physiologic mechanism by which degenerative changes in the knees, degenerative changes in the feet and contralateral hip strain causes a right hip disorder to worsen chronically beyond its natural progression. The October 2018 examiner stated that there was no mention of right hip symptomatology around the time of injury. The Veteran’s service treatment records (STRs) showed that an injury occurred in August 2008. Significantly, just days after the injury, the Veteran specifically complained of right hip pain. In reference to the right hip complaint, the STRs showed a diagnosis of locking hip syndrome. Additionally, the STRs noted an abnormal gait. Regarding the Veteran’s report of right hip pain, where pain alone results in functional impairment of earning capacity, even if there is no identified underlying diagnosis, it can constitute a disability. Saunders v. Wilkie, No. 2017-1466 (Fed. Cir. Apr. 3, 2018). Accordingly, a remand is required to address accurately the Veteran’s STRs and reports of right hip pain. 2. Increased Evaluations For Bilateral Knee Disabilities Second, a remand is required to assess adequately the severity of the Veteran’s service connected bilateral knee disorders. For increased evaluation claims, VA examinations for musculoskeletal conditions must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59 (2018); Correia v. McDonald, 28 Vet. App. 158 (2016). A VA examination report is not adequate without an explanation for an examiner’s failure to evaluate the functional effects of a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board may accept a VA examiner’s statement that he or she cannot offer an opinion in that regard without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. Although not binding on VA examiners, the VA Clinician’s Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves. Sharp, 29 Vet. App. at 34-35, citing VA CLINICIAN’S GUIDE, ch. 11. For example, a VA examination report is not adequate when the VA examiner failed to elicit relevant information as to a veteran’s flare-ups or ask him or her to describe the additional functional loss, if any, he or she suffered during flare-ups and then estimate the veteran’s functional loss due to flares based on all the evidence of record—including the veteran’s lay information—or explain why she or he could not do so. Sharp, 29 Vet. App. at 34-35. The Board remanded the claims for increased ratings for the bilateral knee disabilities in February 2018 because the examiner failed to report sufficiently additional functional loss during flare-ups and after repetitive use. The Veteran received a VA examination in March 2018. The Veteran endorsed pain with weight bearing, pain with repeated use over time, and pain during flare-ups. The examiner noted pain on examination and with weight bearing but did not include the corresponding range of motion measurements. The examiner noted that the examination was not being conducted during a flare-up. The examiner opined that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups, and that he or she could not offer an opinion on the functional effects of flare-ups based solely on not directly observing function under these conditions. Accordingly, a remand is required for Sharp and Correia compliance. 3. TDIU A remand is also required for substantial compliance with the prior May 2016 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran’s service-connected disabilities do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). Accordingly, in May 2016, the Board remanded the TDIU issue for referral to VA’s Director of Compensation Service for extraschedular consideration. Significantly, this referral has not been completed. [In this regard, the Board acknowledges that the claim for a TDIU is inextricably interwined with the pending increased evaluation claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other).] The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and her attorney. 2. Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and her attorney. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of her right hip disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must comment on whether there is a right hip disorder or whether any complaints of right hip pain alone, have resulted in functional impairment of earning capacity. Second, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any right hip disability had onset in, or is otherwise related to, the Veteran’s active military service. Third, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any right hip disorder is caused or aggravated by the service-connected left hip strain, bilateral knee, and/or bilateral foot disabilities. The examiner must specifically address the Veteran’s assertions of: 1) right hip pain, 2) right hip pain with weight bearing, and 3) compensating or favoring the right hip because of left hip. The examiner must also specifically address: 1) hip injury during fall, 2) specific complaints of right hip pain after fall, and 3) abnormal gait contained in the Veteran’s STRs. 4. Also after any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected degenerative joint disease of his knees. The entire claims file must be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The relevant Disability Benefits Questionnaire must be utilized. The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain. The examiner must test the range of motion and pain of both knees in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. The examiner must utilize the appropriate Disability Benefits Questionnaire. Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding her flares by alternative means. (CONTINUED ON NEXT PAGE) 5. Following completion of the development requested herein, and if the Veteran continues not to meet the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16, refer this case to the Director of C & P for an opinion regarding extraschedular consideration of a TDIU under 38 C.F.R. § 4.16(b). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bruton, Associate Counsel