Citation Nr: 21004983 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-03 996 DATE: January 28, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a left hip strain status post stress fracture (previously rated as hip stress fracture, limitation of extension) is remanded. Entitlement to a rating in excess of 10 percent for a right hip strain status post stress fracture (previously rated as hip stress fracture, limitation of extension) is remanded. Entitlement to a rating in excess of 10 percent for a lumbar strain is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army from January 2010 to December 2010. These appeals come before the Board on the basis of a July 2014 rating decision. The Board notes that the Veteran has a pending notice of disagreement for the propriety of the rating reductions for the service-connected conditions of bilateral limitations of hip flexion and rotation. As these claims have not yet been appealed to the Board, they are not before the Board at this time and will not be addressed herein. The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the representative has contended that the Veteran is unemployable due to her service-connected conditions on the VA Form 9, the issue of entitlement to a TDIU has been raised and is within the jurisdiction of the Board. 1. Entitlement to a rating in excess of 10 percent for a left hip strain status post stress fracture (previously rated as hip stress fracture, limitation of extension) is remanded. 2. Entitlement to a rating in excess of 10 percent for a right hip strain status post stress fracture (previously rated as hip stress fracture, limitation of extension) is remanded. 3. Entitlement to a rating in excess of 10 percent for a lumbar strain is remanded. The Veteran claims entitlement to increased ratings for her bilateral hip strains and lumbar spine strain. The Veteran contends her conditions are worse than found upon examination in March 2014. The Board notes that the Regional Office (RO) attempted to schedule the Veteran for updated VA examinations in July 2016 and September 2016. In July 2016, the Veteran had to cancel her appointment due to a lack of transportation. In September 2016, the Veteran requested to cancel her appointment due to the short notice given. The RO denied the Veteran’s request to schedule a third VA examination appointment. The Veteran testified at a January 2021 Board hearing that she was unable to attend the two scheduled VA examinations in 2016 due to childcare and transportation issues. The Board finds that the Veteran has established good cause for failing to attend her VA examinations. Accordingly, additional VA examinations should be scheduled. The Board advises the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655. 4. Entitlement to a TDIU is remanded. The claim for a TDIU is found to be intertwined with the claims for higher disability ratings remanded herein, and thus, must also be remanded to the AOJ. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). The matters are REMANDED for the following actions: 1. Assist the Veteran in associating with the claims file all outstanding VA and private medical records, including from Orthopaedics East and Vidant SurgiCenter. 2. Undertake all notice and evidentiary development needed to resolve the issue of entitlement to a TDIU. 3. The Veteran should be scheduled for a VA examination with an appropriate examiner in order to determine the nature and severity of her service-connected bilateral hip disability. THE VETERAN MUST BE GIVEN AT LEAST THREE WEEKS’ NOTICE OF ANY SCHEDULED APPOINTMENTS, AND THE NOTICE MUST BE DOCUMENTED IN THE CLAIMS FILE. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. *The examiner should identify any symptoms that the Veteran currently manifests or has manifested that are attributable to her service-connected bilateral hip disability. All appropriate testing, including range of motion, should be performed. *If flare ups are reported, the examiner is asked to describe whether pain significantly limits functional ability during flare-ups, and if so, the examiner must estimate range of motion during flares. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. *The examiner is also directed to provide an opinion regarding the impact of the Veteran’s service-connected disabilities on her occupational functioning. *The examinations should also record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. The Veteran should be scheduled for a VA examination with an appropriate examiner in order to determine the nature and severity of her service-connected lumbar spine disability. THE VETERAN MUST BE GIVEN AT LEAST THREE WEEKS’ NOTICE OF ANY SCHEDULED APPOINTMENTS, AND THE NOTICE MUST BE DOCUMENTED IN THE CLAIMS FILE. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. *The examiner should identify any symptoms that the Veteran currently manifests or has manifested that are attributable to her service-connected lumbar spine disability. All appropriate testing, including range of motion, should be performed. *If flare ups are reported, the examiner is asked to describe whether pain significantly limits functional ability during flare-ups, and if so, the examiner must estimate range of motion during flares. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. *The examiner is also directed to provide an opinion regarding the impact of the Veteran’s service-connected disabilities on her occupational functioning. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura C. Owens 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.