Citation Nr: 20021471 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 14-11 761 DATE: March 25, 2020 REMANDED Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to an evaluation in excess of 20 percent for a service-connected lumbar spine disability is remanded. Entitlement to an evaluation in excess of 20 percent for a service-connected right knee disability is remanded. Entitlement to an evaluation in excess of 20 percent for a service-connected right shoulder disability is remanded. Entitlement to a TDIU is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from October 1985 to May 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2011 and September 2011 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in December 2016. This case was previously before the Board in March 2016, December 2017, and June 2018, when it was remanded for Agency of Original Jurisdiction (AOJ) development. The case has been returned to the Board for further appellate review. 1. Entitlement to service connection for a bilateral hip disability is remanded. In the June 2018 remand, the Board directed the RO to obtain an opinion regarding the relationship between the diagnosis of osteoarthritis of the hips and the Veteran’s service-connected back and knee disabilities, including the effect any altered gait could have on the Veteran’s hips. At an August 2018 VA hips examination, the examiner did not identify any current diagnoses, and failed to address the osteoarthritis diagnosis in the record in the opinion provided. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (diagnoses predating filing of claim are relevant evidence in determining whether current disability existed at time claim was filed); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be granted for a disability that resolves prior to the adjudication of the claim). Further, the examiner failed to offer any opinion regarding whether the Veteran’s service-connected back and knee disabilities could affect his hips. As the RO failed to obtain an opinion fulfilling the Board’s remand directive, another remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by Board confers upon claimant, as a matter of law, the right to compliance with remand order). 2. The issues of entitlement to increased evaluations for service-connected lumbar spine, right knee, and right shoulder disabilities are remanded. The prior remand directed the RO to obtain examinations compliant with Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, in August 2018 VA examinations for the Veteran’s lumbar spine, right knee, and right shoulder disabilities, the examiner failed to address any functional limitation during flare-ups, despite the Veteran reporting flare-ups for each disability, which renders these examinations inadequate to determine the current severity of the Veteran’s service-connected disabilities. See Sharp, 29 Vet. App. at 34-35 (an examination is inadequate where examiner fails to estimate functional loss due to flare-ups based on all evidence, including lay statements). The RO therefore failed to comply with the Board’s remand directives, and another remand is necessary. See Stegall, 11 Vet. App. at 271. 3. Entitlement to a TDIU is remanded. The TDIU issue is intertwined with the issues remanded above and is also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician to determine whether any current bilateral hip disability is related to the Veteran’s military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all hip disabilities currently found. For each hip disability identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the hip disability is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected lumbar and/or knee disabilities, to include addressing whether the service-connected disabilities result in an altered gait which either caused or aggravated the claimed hip disability. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the hip disability prior to aggravation by the service-connected disabilities. Please note, causation and aggravation are separate concepts and must be addressed independently. In providing the requested opinions, the examiner should elicit and address the Veteran’s lay statements regarding continuity of symptomatology since onset and/or since discharge from service. The examiner should address any other pertinent evidence of record, including, but not limited to, the April 2014 private medical opinion letter, the March 2018 VA hip examination, and the notation on the July 1999 VA knee examination, based on the Veteran’s report, that the osteoarthritis in the hips was likely related to the service-connected disabilities. The examiner is also asked to comment on the radiological findings of bilateral hip arthritis at the July 1999 knee examination and in October 2016 private records, while x-ray imaging performed with the November 2005 VA examination returned normal results. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of the Veteran’s service-connected lumbar spine disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The lumbar spine involved should be tested in both active and passive motion, and in weight-bearing and non-weight-bearing. 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 should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of the Veteran’s service-connected right knee disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The joints involved should be tested in 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. 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 should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of the Veteran’s service-connected right shoulder disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The joints involved should be tested in 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. 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 should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, Associate Counsel 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.