Citation Nr: 20026045 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 13-11 532 DATE: April 15, 2020 REMANDED Entitlement to an initial rating in excess of 10 percent for limitation of adduction of the right hip is remanded. Propriety of the separately assigned rating for limitation of extension of the right hip, evaluated as noncompensably disabling as of January 31, 2018, is remanded. Propriety of the separately assigned rating for limitation of flexion of the right hip, evaluated as noncompensably disabling as of January 31, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1982 to July 1986 and July 1992 to May 2008, to include service in Southeast Asia, and with additional service in the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in May 2010 by a Department of Veterans Affairs (VA) Regional Office. In September 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge concerning, in part, the issues on appeal. A transcript of the hearing is of record. In December 2015 and December 2017, the Board remanded the claim of entitlement to an increased rating for the Veteran’s service-connected right hip disability. An April 2018 rating decision granted, in pertinent part, separate noncompensable ratings for limitation of extension and limitation of flexion of the right hip as of January 31, 2018. In December 2018, the Board denied the claims on appeal, and the Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a September 2019 Joint Motion for Partial Remand (JMPR), the Court vacated the December 2018 Board decision with respect to the denials and remanded the issues to the Board. The Board also remanded several issues in the December 2018 decision. As such matters have not been re-certified, the Board declines jurisdiction over them at the present time. Rather, they will be addressed at a later date, if otherwise in order. The Board further observes that additional evidence has been associated with the record since the Agency of Original Jurisdiction (AOJ) last adjudicated the Veteran’s claims. However, as the Board herein remands the claims on appeal, the AOJ will have an opportunity to consider such evidence in the readjudication of such matters. 1. Entitlement to an initial rating in excess of 10 percent for limitation of adduction of the right hip. 2. Propriety of the separately assigned rating for limitation of extension of the right hip, evaluated as noncompensably disabling as of January 31, 2018. 3. Propriety of the separately assigned rating for limitation of flexion of the right hip, evaluated as noncompensably disabling as of January 31, 2018. In the December 2018 decision, the Board denied the claims on appeal based, in part, on the findings shown in February 2016 and January 2018 VA examination reports. However, in the September 2019 JMPR, the parties determined the Board erred in finding such examinations adequate. Specifically, the parties found that the February 2016 VA examiner did not sufficiently explain why an opinion as to functional loss during flare-ups could not be provided without resorting to speculation. In addition, the parties found it unclear from the January 2018 VA examination report as to why the examiner could not describe the noted functional loss during flare-ups in terms of range of motion. Consequently, the parties concluded a remand was warranted to obtain an adequate examination. As a result, the Board finds a remand is warranted to schedule the Veteran for an additional VA examination to comply with the directives in the JMPR. The matters are REMANDED for the following action: Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected right hip disabilities. All indicated tests and studies should be undertaken. The record, including a complete copy of this Remand, must be made available for review in connection with the examination. If possible, such examination should be conducted during a flare-up. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran’s right hip disabilities. (B) The examiner should record the range of motion of the right hip observed on clinical evaluation in terms of degrees for all relevant planes. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. The examiner should record the results of range of motion testing in degrees, if possible, for pain on both active and passive motion, on weight-bearing and nonweight-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. (C) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (D) If the Veteran endorses experiencing flare-ups of his right hip, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion expressed in degrees, if possible, that may be present during a flare-up. The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the right hip disability conducted in February 2016 and January 2018 and provide an opinion as to the additional loss of range of motion present during the Veteran’s reported flare-ups at the time of the respective examinations. Again, such opinion should be expressed, if possible, in terms of degrees. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (E) The examiner should also describe the resulting functional impairment of the Veteran’s right hip disabilities. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.