Citation Nr: 21000170 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 05-36 443 DATE: January 4, 2021 REMANDED Entitlement to a separate disability rating higher than 10 percent for limitation of right thigh motion associated with status post-excision right hip osteochondroma is remanded. REASONS FOR REMAND This matter was previously before the Board of Veterans’ Appeals (Board) in November 2019, when it was remanded for a new examination because previous VA examiners had failed to adequately address the Veteran’s lay reports of additional right hip functional impairment during flare-ups. The Agency of Original Jurisdiction (AOJ) scheduled the Veteran for a new examination in January 2020 as directed. Unfortunately, the January 2020 VA examination report is also inadequate to make an informed decision on the Veteran’s appeal. Initially, the Board notes the January 2020 VA examination report is internally inconsistent. In Section 3.c. (repeated use over time) and Section 3.d. (flare-ups) of the disability benefits questionnaire (DBQ), the January 2020 VA examiner provided an explicit estimate of additional range of motion loss with repeated use over time and during flare-ups, albeit exactly the same range of motion noted during initial range of motion testing; however, in Section 13 (remarks), the January 2020 VA examiner indicated “[t]here is insufficient evidence or objective exam findings that would provide a reliable prediction of decreased functional ability during flare-ups or when the (joint) is used repeatedly for a period of time.” The Board is simply unable to reconcile the January 2020 VA examiner’s statement in Section 13 with the previous estimates noted in Sections 3.c. and 3.d. of the DBQ. Further, the January 2020 VA examiner provided an inadequate rationale to support her conclusion that she could not provide an estimate of additional functional impairment after repeated use over time and/or during flare-ups because she failed to provide any indication that she considered the Veteran’s lay reports in this regard. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In sum, the January 2020 VA examination report fails to adequately address additional functional impairment after repeated use over time and/or during flare-ups and therefore does not constitute substantial compliance with the Board’s prior remand directives, requiring an additional remand for a new examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board thanks the Veteran for his patience and cooperation as VA continues its efforts to develop the necessary evidence to properly rate his service-connected right hip disability. The matter is REMANDED for the following action: Schedule the Veteran for a new examination to assess the functional impairment resulting from his service-connected right hip disability. The selected examiner should conduct all indicated tests and studies, to include range of motion testing. The hips should be tested in both active and passive motion and in weight-bearing and nonweight-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) with a detailed explanation for why the Veteran’s lay reports are insufficient to overcome the need to speculate. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.