Citation Nr: 19191925 Decision Date: 12/06/19 Archive Date: 12/06/19 DOCKET NO. 15-03 933 DATE: December 6, 2019 REMANDED Entitlement to a rating in excess 50 percent for status post right hip replacement is remanded. Entitlement to a compensable rating for limitation of motion of the left hip prior to October 17, 2016, is remanded. Entitlement to a rating in excess of 50 percent for status post left hip replacement from December 1, 2017, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1978 to July 1985 and from April 1986 to September 1999. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision. The Veteran testified at a Board hearing in April 2018. In October 2018, the Board issued a decision on the present case. That decision, in relevant part, denied entitlement to (1) a rating in excess 50 percent for status post right hip replacement, (2) a compensable rating for limitation of motion of the left hip prior to October 17, 2016, and (3) a rating in excess of 50 percent for status post left hip replacement from December 1, 2017. Unsatisfied with those determinations, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), which in June 2019 granted a joint motion for partial remand (JMPR), vacating the relevant parts of the Board decision and remanding the abovementioned matters back to the Board for action consistent with the terms of the motion. The JMPR stated that the parties did not want the following parts of the 2018 to be disturbed: 1) a rating in excess of 10% for limitation of extension of the left hip prior to October 17, 2016, (2) an initial rating in excess of 20 percent for instability of the left hip prior to October 17, 2017, and (3) an initial rating in excess of 10 percent for right leg shortening. As such, these three matters are no longer in appellate status. 1. Entitlement to a rating in excess 50 percent for status post right hip replacement is remanded. 2. Entitlement to a compensable rating for limitation of motion of the left hip prior to October 17, 2016, is remanded. 3. Entitlement to a rating in excess of 50 percent for status post left hip replacement from December 1, 2017, is remanded. In Sharp v. Shulkin, the Court held that, before the Board can accept an examiner’s statement that an opinion cannot be provided without resort to speculation, it must be clear that this is predicated on a lack of knowledge among the medical community at large and not the insufficient knowledge of the specific examiner. 29 Vet. App. 26, 36 (2017). The Court held that, before the Board can rely on a VA examiner’s statement that an opinion could not be offered without resorting to speculation, the examiner should elicit relevant information as to the veteran’s flares or ask the veteran to describe the additional functional loss, if any, that the veteran suffered during flares 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 he or she could not do so. Sharp, 29 Vet. App at 35. In this case, the Veteran underwent a VA examination in November 2013. At that time, the Veteran endorsed discomfort in his right hip, worse in the cold or when standing for long periods of time, that his left hip was very painful, and that he experienced flare-ups. The examiner opined that the right hip replacement had residuals of intermittent degrees of residual weakness, pain and/or limitation of motion. The examiner, however, did not provide an opinion regarding whether flare-ups or repetitive use over time caused additional functional loss for either hip. The Veteran received another VA examination in April 2018. At that time, the Veteran reported that he had issues raising his right hip to get into cars and that it was painful with prolonged walking or when he sat for 30 minutes. Regarding the left hip, the Veteran reported pain with prolonged walking, with pain in the front of the hip to his quad. The Veteran reported flare-ups with overuse and pain and stiffness. The examiner was unable to say whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time for both hip or with flare-ups of the right hip but did not explain why he was unable to provide that information. Regarding the left hip, he opined that flare-ups would significantly limit functional ability, but was unable to describe these limits in terms of range of motion. The examiner, however, did not explain why he was unable to do so. As such, the examiner’s report does not satisfy the standard announced in Sharp. Based on the foregoing, to include consideration of the June 2019 JMPR, the Board finds a VA opinion regarding functional loss due to flare-ups and repetitive use over time is necessary and/or probative in determining whether the Veteran experiences markedly severe residuals of weakness, pain, or limitation of motion to warrant a 70 percent rating under Diagnostic Code 5054 for either hip. The Board also notes that VA treatment records were last associated with the claims file on October 2018. VA should obtain any VA treatment records since that date. The matters are REMANDED for the following actions: 1. Obtain any available VA treatment records for the period from October 2018 to the Present. 2. After completing #1, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hip disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. (a) Test the contralateral joint, unless medically contraindicated, and address pain on both passive and active motion, and on both weightbearing and non-weightbearing. Additionally, comment on any functional loss due to flare-ups or repetitive use over time. (b) After completing (a), review the prior hip examinations and provide an opinion as to whether the above requested measurements and/or functional loss would be similar if taken at the time of the prior November 2013 and April 2018 examinations; and if not, how they would have differed. Please explain why. (c) The examiner is to provide an opinion regarding functional loss due to flare-ups or repetitive use over time (from approximately September 2013, when the claim was filed, until the date of this examination). If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. López The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.