Citation Nr: 21061347 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 18-17 676 DATE: October 1, 2021 REMANDED An increased rating greater than 10 percent for RIGHT hip osteoarthritis with limitation of flexion from November 13, 2015 to September 19, 2016 is remanded. An increased rating greater than 10 percent for LEFT hip osteoarthritis with limitation of flexion from November 13, 2015 to December 12, 2016 is remanded. An increased rating greater than 30 percent for residuals of a RIGHT hip replacement on and after November 1, 2017 is remanded. An increased rating greater than 30 percent for residuals of a LEFT hip replacement on and after February 1, 2018 is remanded. INTRODUCTION The Veteran had active service in the U.S. Air Force from October 1997 to May 2005; from March 2010 to April 2010; and from July 2011 to January 2012. This matter comes to the Board of Veterans' Appeals (Board) on appeal from September 2015, March 2016, March 2017, and January 2021 rating decisions issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In a June 2020 Board decision, the Board denied the increased rating issues on appeal. However, the Veteran appealed the Board's June 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2021 Order, the Court partially vacated and remanded the Board's earlier decision for the increased rating issues, pursuant to a May 2021 Joint Motion for Partial Remand (Joint Motion). The reasons for the Court's Order and the specific instructions of the Joint Motion will be discussed in further detail below. Upon return from the Court, in June 2021, the Board sent the Veteran and his representative a 90-day notice letter for a Court remand informing him that the case had been received by the Board from the Court. The Veteran was advised he had 90 days to submit additional argument or evidence with an indication as to whether he desired a remand for the AOJ to consider the evidence or whether he waived this right. See generally 38 C.F.R. § 20.1305 (2020); Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999) (per curiam order); Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). Ninety days has since passed, but the Veteran has not submitted any additional evidence. Instead, his representative (the Veterans of Foreign Wars (VFW)) submitted additional argument contained within a September 2021 Informal Hearing Presentation (IHP). Specifically, VFW requested that the Board follow the instructions outlined in the Court's May 2021 Joint Motion i.e., remand the appeal to the AOJ for additional development, in compliance with the parties' directives. In any event, this case has now returned to the Board to implement the May 2021 Joint Motion's instructions. REASONS FOR REMAND 1. An increased rating greater than 10 percent for RIGHT hip osteoarthritis with limitation of flexion from November 13, 2015 to September 19, 2016 is REMANDED. 2. An increased rating greater than 10 percent for LEFT hip osteoarthritis with limitation of flexion from November 13, 2015 to December 12, 2016 is REMANDED. First, pursuant to the May 2021 Joint Motion, the parties agreed that the Board erred when it failed to set forth an adequate statement of reasons or bases addressing whether the Veteran was entitled to a retrospective VA medical opinion for the increased rating issues for the hips rated as 10 percent on and after November 13, 2015. See 38 U.S.C. § 7104(d)(1); Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). On this issue, the previous October 2016 VA hip and thigh examination failed to fully comply with the joint testing requirements listed under 38 C.F.R. §§ 4.40, 4.45, and 4.59, and discussed in the precedential cases of Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016), and Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Therefore, a remand is required for the AOJ to secure a retrospective VA medical opinion to determine the severity and manifestations of the Veteran's right and left hip osteoarthritis in 2015 and 2016. See Chotta, 22 Vet. App. at 85-86. The VA examiner should carefully review the evidence of record relevant to the severity of the Veteran's right and left hip osteoarthritis in 2015 and 2016 that is, the Veteran's lay statements, the July 2015 and October 2016 VA hip and thigh examinations, and VA and private treatment records dated in 2015 and 2016. For the time period of 2015 and 2016, if the retrospective VA medical opinion should estimate the findings of the joint testing requirements listed under 38 C.F.R. §§ 4.40, 4.45, and 4.59 and discussed in the precedential cases of Sharp, Correia, and Mitchell. If it is not possible to estimate any of the above joint testing requirements for 2015 and 2016, the VA examiner should explain why. 3. An increased rating greater than 30 percent for residuals of a RIGHT hip replacement on and after November 1, 2017 is REMANDED. 4. An increased rating greater than 30 percent for residuals of a LEFT hip replacement on and after February 1, 2018 is REMANDED. Second, pursuant to the May 2021 Joint Motion, the parties agreed that in denying the Veteran's increased rating claims greater than 30 percent for residuals of bilateral hip replacements, the Board erred by relying upon an inadequate February 2018 VA hip and thigh examination. When VA provides a VA examination or obtains a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Specifically, the February 2018 VA hip and thigh examination is inadequate because the VA examiner failed to conduct range of motion testing for the hips on weight bearing or explain why this could not be accomplished. Correia, 28 Vet. App. at 170. Therefore, in order to accomplish the Joint Motion's instructions, a remand is required for the AOJ to provide the Veteran an opportunity to report for a new VA hip and thigh examination to ascertain the current severity and manifestations of his service-connected residuals of right and left hip replacements. See 38 C.F.R. § 3.327(a); VAOPGCPREC 11-95 (April 7, 1995). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). This time, the VA examination should be fully compliant with Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016), by providing range of motion testing for both hips in active motion, passive motion, weight-bearing, and nonweight-bearing, or explaining why an aspect of the testing cannot be accomplished or is unnecessary. Third, pursuant to the May 2021 Joint Motion, VA should make "reasonable efforts" to obtain the December 2016 private surgical report for the Veteran's left hip replacement surgery. In this regard, this private surgical report is not currently present in the claims file. VA is required to make reasonable efforts to obtain all "relevant" records, including private and non-Federal records like these, which the Veteran adequately identifies and authorizes VA to obtain. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). "Reasonable efforts" will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request, unless it is clear after the first request that a second request would be futile. 38 C.F.R. § 3.159(c)(1). Therefore, the AOJ should contact the Veteran and ask him to submit the December 2016 private surgical report for his left hip replacement surgery himself, if he has it in his personal possession, or to complete and return the necessary authorizations (VA Form 21-4142) and (VA Form 21-4142a) for VA to obtain it for him. Fourth, as the appeal is already being remanded for further development (as explained above), the Board sees the Veteran's VA treatment records on file from the VA Puget Sound healthcare system in Washington State date to March 2017. Any additional VA treatment records are within VA's constructive possession and are considered potentially relevant to the increased rating issues on appeal for the right and left hip. Therefore, a remand is required to allow VA to obtain all the Veteran's VA treatment records from the VA Puget Sound healthcare system in Washington State dated from March 2017 to the present. This matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from the VA Puget Sound healthcare system in Washington State, dated from March 2017 to the present and associate them with the claims file. 2. Ask the Veteran to complete and return the necessary authorization (VA Form 21-4142) and (VA Form 21-4142a) to secure the December 2016 private surgical report for his left hip replacement surgery. If the Veteran provides the required authorization with sufficient information to identify and locate this private surgical report, the AOJ should make two requests for the authorized records from the private facility, unless it is clear after the first request that a second request would be futile. Finally, the Veteran is also asked to provide the above private surgical report himself if he has it in his possession. 3. After completion of steps 1 and 2, secure a retrospective VA medical opinion to determine the severity and manifestations of the Veteran's right and left hip osteoarthritis in the years 2015 and 2016. The VA examiner must review the claims file. The VA examiner must provide a rationale to support the opinions. In accordance with the June 2021 Order and Joint Motion of the parties, the VA examiner is asked to provide a response to and address the following inquiries: (a.) Carefully review the evidence of record relevant to the severity of the Veteran's of the Veteran's right and left hip osteoarthritis in 2015 and 2016 that is, the Veteran's lay statements, the July 2015 and October 2016 VA hip and thigh examinations, and VA and private treatment records dated in 2015 and 2016. (b.) For the years 2015 and 2016, for both the right and left hip, provide an estimate whether and at what point during range of motion the Veteran experiences any limitation of hip motion that is specifically attributable to pain or other functional loss factors, as required under Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). (c.) For the years 2015 and 2016, for both the right and left hip, in order to comply with the Court's precedential decision in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016), provide an estimate of range of motion testing for both hips in active motion, passive motion, weight-bearing, and nonweight-bearing. Importantly, if the VA examiner would have been unable to conduct all the required Correia testing or concludes that certain aspects of the required testing were not necessary or were not relevant for the hips, the VA examiner should clearly explain why that is so. (d.) For the years 2015 and 2016, for both the right and left hip, provide an estimate, if at all possible, of the additional functional impairment (e.g., range-of-motion loss) for the right and left hip, during flare-ups or repetitive use of the hips, based on the clinical evidence of record and the Veteran's lay statements in 2015 and 2016, pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). If it is not possible to provide a specific measurement (range-of-motion loss) during flare-ups or repetitive use, without speculation, the VA examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the VA examiner (he or she does not have the knowledge or training). 4. After completion of steps 1 and 2, schedule the Veteran for a VA hip and thigh examination by an appropriate clinician to determine the current severity of his service-connected residuals of right and left hip replacements. The VA examiner must review the claims file. Any and all studies, tests, and evaluations deemed necessary by the VA examiner should be performed. The VA examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's right and left hip under the rating criteria. The VA examiner must provide a rationale to support any opinion provided. Alternatively, in light of the Covid-19 pandemic, the VA examiner can schedule a telehealth interview, review of the record, etc., if an in-person examination is not feasible for the Veteran's right and left hips. In accordance with the June 2021 Order and Joint Motion of the parties, the VA examiner is asked to provide a response to and address the following inquiries: (a.) In order to comply with the Court's precedential decision in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016), the VA hip and thigh examination should include range of motion testing for both hips in active motion, passive motion, weight-bearing, and nonweight-bearing. Importantly, if the VA hip and thigh examiner is unable to conduct all the required Correia testing or concludes that certain aspects of the required testing are not necessary or are not relevant for the hips, the VA examiner should clearly explain why that is so. (b.) VA should provide a copy to the VA hip and thigh examiner of the new, revised rating criteria for hip replacement / prosthesis (Diagnostic Code 5054), which is effective February 7, 2021. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. Rubin, 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.