Citation Nr: 1815083 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 10-18 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right hip, to include thigh impairment (right hip disability). 2. Entitlement to a total disability rating for individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1999 to September 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The RO continued the Veteran's 10-percent rating for traumatic arthritis of the right hip. Jurisdiction of the appeal now resides with the RO in St. Petersburg, Florida. The Board notes that in an April 2010 VA Form 9, the Veteran reported that he lost two jobs due to an inability to lift heavy weight. A September 2012 rating decision, denied the Veteran's TDIU claim. The Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record. Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Court has also held that "a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities." Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Here, TDIU is considered a part of the Veteran's claim for entitlement to an increased rating based on the Court's holding in Rice v. Shinseki. 22 Vet. App. 447, 453 (2009) (a TDIU request in which the disability is already service connected is not a separate claim for benefits, but rather is part of a claim for increased compensation); 38 C.F.R. § 3.400 (2016). Given such, the Board has jurisdiction over this claim. Under Rice, the Board has jurisdiction over the TDIU claim and for the purpose of clarity has separately captioned the issue on the title page. This matter was last remanded in July 2017 for a new VA examination. It now returns for appellate review. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND 1. Increased Rating for Right Hip Disability Although further delay is regrettable, remand is warranted for a new medical examination and opinion. Appellant's claim was originally remanded in March 2016 and again in July 2017 to ascertain the severity of the Veteran's service-connected right hip disability, diagnosed as degenerative joint disease of the right hip, to include thigh impairment. While on remand in July 2017, a VA examination was accomplished in August 2017, wherein the VA examiner stated that the Veteran does not have a current diagnosis of degenerative joint disease of the right hip based on finding no functional limitation and normal X-rays in 2010, 2016, and 2017. Instead, the VA examiner stated that there was a possibility that the Veteran had "Abnormal C-reactive protein and [sedimentation rate] suggest[ive of] the possibility of a non-degenerative auto inflammatory condition that has yet to be diagnosed" and noted that this condition "could be responsible for [the Veteran's] current reported symptomology." The VA examiner further stated that the effect of this condition cannot be ruled out as a cause of the Veteran's symptoms. Notably, the VA examiner asserted that the Veteran's undiagnosed auto inflammatory condition was "beyond the capabilities of this examination." Given the varying diagnosis from previous examinations, and where it cannot be ascertained if this is the same or different disability of the right hip, a new VA examination by an appropriate medical specialist is necessary to determine the diagnosis and etiology of the Veteran's undiagnosed auto inflammatory condition to include Abnormal C-reactive protein and sedimentation rate. Depending on the outcome of the aforementioned, remand may still be warranted for a new VA examination to address range of motion testing that complies with Correia v. McDonald, 28 Vet. App. 158 (2016), as well as for the examiner to assess the impact of flare-ups and the Veteran's leg length discrepancy in assessing the severity of the Veteran's service-connected right hip disability. Although the VA examination was performed in August 2017, it did not comply with all of the remand directives. Specifically, the examiner failed to address the Veteran's functional impairment and range of motion testing due to factors such as flare-ups. The examiner also failed to address whether the Veteran's leg length discrepancy was at least as likely as not (a degree of probability of 50 percent or higher) etiologically related to his right hip disability. See August 2016 VA Hip and Thigh Conditions, Disability Benefits Questionnaire; Stegall v. West, 11 Vet. App. 268, 271 (1998)(holding "that a remand by this Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders.") Accordingly, if on remand it is determined that the same diagnosis of degenerative joint disease of the right hip is correct, remand is warranted to comply with the Board's earlier directive. In this vein, the Board also notes that the Veteran denied flare-ups during the August 2017 VA examination. However, he reported flare- ups in the May 2009 and May 2016 VA examinations and neither of the VA examiners addressed the functional loss resulting from such flare-ups, to include any reduction in the Veteran's range of motion. Since the July 2017 remand, the United States Court of Appeals for Veterans Claims also issued a decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017), which is applicable to this case. In Sharp v. Shulkin, the Court held that, pursuant to VA regulations and the VA Clinician's Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." Sharp, at 32. The Court further explained that, in the event an examination is not conducted during a flare-up, the "critical question" in assessing the adequacy of the examination was "whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). The August VA examination report did not address flare-ups noted by the Veteran during the May 2009 and May 2016 VA examinations. Therefore, the VA examiner is requested to offer a retrospective opinion addressing the criteria under Correia, supra, and Sharp, supra, as to the findings noted in the May 2009 and May 2016 VA examinations. The VA examiner from the August 2017 examination also failed to address the Veteran's leg length discrepancy by finding that the Veteran did not have malunion, nonunion of femur, flail hip joint or leg length discrepancy. This is inconsistent with the prior VA examinations from May 2009 and May 2016. Thus, a remand is warranted to address this inconsistency. Additionally, all available VA and non-VA treatment records not already in the evidence of record should be obtained. 38 U.S.C. § 5103A (a)-(c). 2. Total Disability Rating based on Individual Unemployability (TDIU) The Board finds that the issue of entitlement to TDIU is inextricably intertwined with the increased rating claim for the right hip disability, as the criteria for TDIU are dependent, in part, on the Veteran's service-connected disability ratings. Thus the Board also remands the TDIU claim. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain and associate any outstanding VA and private treatment records with the claims file. 2. Schedule the Veteran with an appropriate SPECIALIST to determine if the Veteran has a non-degenerative auto inflammatory condition or any other disability right hip disability for the purpose of ascertaining the nature and etiology of ANY and all conditions diagnosed proximate to the right hip disability. The examiner should specifically comment on the August 2017 examiner's assessment as to the possibility that the Veteran has a non-degenerative auto inflammatory condition. After examining the Veteran and reviewing the claims file, the examiner should answer: a) Whether the Veteran has a non-degenerative auto inflammatory condition based on an abnormal C-reactive protein and seed rate OR any other identified disability, which is related to the Veteran's right hip injury sustained in service? If yes, answer: b) Whether this disability/ies is the same or different disability from the Veteran's degenerative joint disease (DJD) of the right hip, explaining whether the DJD is a misdiagnosis. i) (same) - if considered a misdiagnosis, reconcile the earlier findings of DJD from prior VA examinations in May 2009 and May 2016. ii) (different) - if DJD is not a misdiagnosis, and the non-degenerative auto inflammatory condition or any other identified disorder, if found, is a new diagnosis, whether it is at least as likely as not (i.e., 50 percent probability or greater) related to any in-service disease, event, or injury, or the Veteran's reports of pain, grinding, weakness and popping of his right hip. The examiner should also provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any currently diagnosed condition of the right hip was: a) caused by, or b) aggravated by the Veteran's service-connected right hip disability. If such aggravation is found, the examiner should determine: (1) the baseline manifestations of the Veteran's right hip condition absent the effect of aggravation, and (2) the increased manifestations that are proximately due to the newly diagnosed non-degenerative auto inflammatory condition or any other diagnosed condition. 3. Return the claims file to the August 2017 VA examiner, if available, for a new VA examination to ascertain whether the Veteran has a LEG LENGTH DISCREPANCY. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should opine specifically on whether the Veteran has a LEG LENGTH DISCREPANCY. a) If the examiner finds that the Veteran does NOT have a leg length discrepancy, the examiner should address the difference in opinion between his findings and the findings of the prior VA examiners from May 2009 and May 2016 finding the Veteran had a leg length discrepancy. b) If the examiner finds the Veteran HAS a leg length discrepancy, the examiner should opine whether it is at least as likely as not (degree of probability of 50 percent or higher) etiologically related to his right hip disability. 4. If after the aforementioned exam (#2), it is determined that the Veteran has DJD of the right hip, the examiner shall inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups. ANY ADDITIONAL IMPAIRMENT ON USE OR IN CONNECTION WITH FLARE-UPS SHOULD BE DESCRIBED IN TERMS OF THE DEGREE OF ADDITIONAL RANGE OF MOTION LOSS. THE EXAMINER SHOULD SPECIFICALLY DESCRIBE THE SEVERITY, FREQUENCY, AND DURATION OF FLARE-UPS; NAME THE PRECIPITATING AND ALLEVIATING FACTORS; AND ESTIMATE, PER THE VETERAN, TO WHAT EXTENT, IF ANY, SUCH FLARE-UPS AFFECT FUNCTIONAL IMPAIRMENT. 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. The examiner is instructed to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. 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 evaluating the Veteran's service-connected right hip disability under the rating criteria. a) Retrospective Opinion THE EXAMINER SHOULD ALSO REVIEW THE MAY 2009 AND MAY 2016 EXAMINATIONS AND PROVIDE A RETROSPECTIVE OPINION AS TO THE VETERAN'S FLARE-UPS BASED ON THE AFOREMENTIONED (SHARP). IF UNABLE TO PROVIDE THIS RETROSPECTIVE TESTING, THE EXAMINER SHOULD STATE WHY AND PROVIDE A REASONED EXPLANATION FOR THE DETERMINATION. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. 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. Because it is important "that each disability be viewed in relation to its history [,]" (38 C.F.R. § 4.1), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. 6. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. The AOJ should reajudicate the Veteran's claims including the claim for entitlement to TDIU. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).