Citation Nr: 21001114 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 10-22 066 DATE: January 7, 2021 REMANDED Entitlement to a rating in excess of 30 percent for limitation of flexion, degenerative arthritis of the left hip with leg length discrepancy status post femoral fracture surgical repair (previously rated as status post left femoral stress fracture) is remanded. Entitlement to a compensable rating for limitation of extension, degenerative arthritis of the left hip with leg length discrepancy status post femoral surgical repair (previously rated as status post left femoral stress fracture) is remanded. Entitlement to a compensable rating for limitation of abduction/adduction/internal and external rotation, degenerative arthritis of the left hip with leg length discrepancy status post femoral fracture surgical repair (previously rated as status post left femoral stress fracture) is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 2001 to December 2002. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2013, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. The VLJ that presided at the hearing is not available to render a decision in this appeal. As such, the Veteran was notified in a July 2018 letter that she was entitled to another hearing before the Board and if she did not respond within 30 days from the date of the letter, the Board would proceed with deciding her appeal. To date, the Veteran has not indicated that she wishes to have an additional hearing. The Board has proceeded with the appeal accordingly. In January 2019, the Board last remanded these matters to the RO for further development. As an initial matter, the record reflects that the Veteran received a letter in September 2020 indicating that she requested a Travel Board hearing. Upon further review of the record, and as noted above, the Veteran does not have a pending hearing request. In an October 2020 letter, VA also notified the Veteran that her appeal would be adjudicated based on the prior hearing transcript and other evidence of record. The Veteran’s October 2013 Board hearing testimony will be considered as evidence in this decision. 1. Entitlement to a rating in excess of 30 percent for left hip limitation of flexion and compensable ratings for left hip limitation of extension and limitation of abduction/adduction/internal and external rotation Although the Board sincerely regrets the additional delay, a remand is necessary as there has not been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the January 2019 Board remand instructions requested that the VA examiner estimate, to the extent possible, any range of motion loss during flare-ups or after repeated use over time from March 2009 to present. The instructions also stated that if it is not feasible for the VA examiner to provide such estimates, the examiner must provide an explanation for this inability. Despite these instructions, the January 2020 VA examiner did not provide any estimates for range of motion loss during flare-ups or after repeated use over time from March 2009 to present. Instead, the VA examiner merely noted “no flare ups reported.” As the VA examiner did not address range of motion loss for repeated use over time from March 2009, nor provide an explanation for failing to do so, this VA opinion is inadequate. Additionally, the VA opinion is factually inaccurate because the Veteran reported left hip flare-ups during the August 2009 VA examination. Specifically, at the August 2009 VA examination, she reported flare-ups from prolonged walking and standing including an inability to walk more than 15 minutes without discomfort. Given these inadequacies, a remand is warranted to obtain a VA examination and retrospective opinion that complies with the prior Board remand directives and considers all the evidence of record. Additionally, although the January 2020 VA examination reflects reduced left hip range of motion and pain with flexion, extension, and abduction, the examination report does not reflect where pain began during range of motion testing. As such, on remand, an additional VA examination should reflect where pain begins during left hip range of motion testing. See Correia v. McDonald, 28 Vet. App. 158 (2016). 2. Entitlement to a TDIU The Veteran’s TDIU claim is inextricably intertwined with her left hip increased rating claims as the development of the Veteran’s claims could significantly impact a decision on the issue of entitlement to a TDIU. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Additionally, as the Veteran recently reported that she last worked in July 2019, she should be provided another opportunity to submit any additional tax returns, that she has not already submitted, for the periods she claims she has been unable to obtain and maintain substantially gainful employment, including 2019 tax returns. See October 2019 VA Form 21-8940. The evidence reflects that she submitted tax information for 2017 and 2018 as well as payroll information in 2012. The matters are REMANDED for the following action: 1. Ask the Veteran to provide any further IRS tax returns, that she has not already submitted, for any additional years she claims she has been unable to obtain and maintain substantially gainful employment due to service-connected disabilities, including for 2019, and a statement that the copy is an exact duplicate of the return filed with the IRS. In doing so, provide the Veteran with an IRS Form 4506-T “Request for Transcript of Tax Return” which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns and submit them to VA. Tell the Veteran that if she does not have copies of her tax returns for the requested years, she may use the IRS form cited to above. As noted above, she submitted tax information for 2017 and 2018 as well as payroll information in 2012. 2. Obtain any outstanding VA treatment records and associate them with the Veteran’s claims file. The last VA treatment of record is dated November 2019. 3. Provide the Veteran with another opportunity to identify any outstanding private treatment records relevant to her claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 4. Then, schedule the Veteran for an updated VA examination to determine the severity of her service-connected left hip disabilities. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the disability should be identified. The examiner should respond to the following: (a) The examiner MUST TEST the Veteran’s range of motion on active and passive motion, on weight-bearing and non-weight-bearing, if possible, and record the range of motion measurements. (b) If there is evidence of pain on motion, the examiner must 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. 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 so in the report. (c) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to the Veteran’s disability. The examiner should state whether the examination is taking place during a period of flare-up. (The Veteran reported left hip flare-ups during the August 2009 VA examination.) If not, the examiner should ask the Veteran to describe the flare-ups, if any, she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of her left hip and 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 Veteran states that the limitation on range of motion is variable, provide the range of variableness in terms of degrees. (d) If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why that is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. (e) The examiner is also asked to provide a RETROSPECTIVE opinion concerning the functional loss and severity of the Veteran’s left hip from March 2009 to present. Specifically, the examiner should DISCUSS the severity of the left hip throughout the appeal period. To the extent possible, the examiner should provide a retrospective opinion ESTIMATING the degree of additional range of motion loss due to repeated use over time and flare-ups, if feasible. In making this determination, the VA examiner should consider the prior VA examination reports. See, e.g., August 2009 VA examination (reflecting reports of flare-ups), July 2014 VA examination, August 2017 VA examination, and January 2020 VA examination. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report and must 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. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.