Citation Nr: 21061630 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 13-23 580 DATE: October 4, 2021 ORDER Entitlement to an effective date of service connection prior to November 6, 2017 for right hip strain with painful and limited flexion is denied. Entitlement to an effective date of service connection prior to November 6, 2017 for left hip strain with painful and limited flexion is denied. Entitlement to an effective date of service connection prior to November 6, 2017 for right hip strain with limited extension is denied. Entitlement to an effective date of service connection prior to November 6, 2017 for left hip strain with limited extension is denied. Entitlement to an effective date of service connection prior to November 6, 2017 for right hip strain with limited abduction/adduction is denied. Entitlement to an effective date of service connection prior to November 6, 2017 for left hip strain with limited abduction/adduction is denied. REMANDED Entitlement to an increased rating for status post L1 and L2 compression fracture with wedging of the T12-L1 and L2, rated as 50 percent disabling prior to October 1, 2011; 10 percent disabling from October 1, 2011 to January 23, 2012; 20 percent disabling from January 23, 2012 to March 27, 2014; and 40 percent disabling thereafter, is remanded. Entitlement to an initial rating in excess of 10 percent for right hip strain with painful and limited flexion is remanded. Entitlement to an initial rating in excess of 10 percent for left hip strain with painful and limited flexion is remanded. Entitlement to an initial compensable rating for right hip strain with limited extension is remanded. Entitlement an initial compensable rating for left hip strain with limited extension is remanded. Entitlement to an initial rating in excess of 10 percent for right hip strain with limited abduction/adduction is remanded. Entitlement to an initial rating in excess of 10 percent for left hip strain with limited abduction/adduction is remanded. Entitlement to an effective date earlier than November 6, 2017 for the grant of a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to an effective date earlier than November 6, 2017 for the award of Dependents' Educational Assistance (DEA) is remanded. Entitlement to special monthly compensation (SMC) based on the need of regular aid and attendance is remanded. FINDING OF FACT The Veteran first filed a service connection claim for a bilateral hip/pelvic disability on November 6, 2017. CONCLUSIONS OF LAW 1. The criteria for an effective date of service connection prior to November 6, 2017 for right hip strain with painful and limited flexion have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date of service connection prior to November 6, 2017 for left hip strain with painful and limited flexion have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date of service connection prior to November 6, 2017 for right hip strain with limited extension have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for an effective date of service connection prior to November 6, 2017 for left hip strain with limited extension have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. The criteria for an effective date of service connection prior to November 6, 2017 for right hip strain with limited abduction/adduction have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 6. The criteria for an effective date of service connection prior to November 6, 2017 for left hip strain with limited abduction/adduction have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of receipt is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). Here, the record establishes the Veteran first filed a service connection claim for "pelvic instability 2nd compression fracture" on November 6, 2017, which led to the award of service connection for his bilateral hip disabilities. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The AOJ assigned the current effective date of service connection for the Veteran's bilateral hip disabilities based on the date of this claim in accordance with VA statutes and regulations. In August 2018, the Veteran appealed the effective date of service connection for his bilateral hip disabilities, but he has not provided any specific argument or pointed to any specific evidence to support his appeal. The Board acknowledges the AOJ granted service connection for the Veteran's bilateral hip disabilities secondary to his service-connected post L1 and L2 compression fracture with wedging of the T12-L1 and L2. While the General Rating Formula for Disease and Injuries of the Spine contemplates ratings for associated neurological impairment, it does not include an exception to the general effective date rules under 38 U.S.C. § 5110(a), and its implementing regulation 38 C.F.R. § 3.400, for secondary service connection awards for impairment of other joints affected by the primary disability. See 38 C.F.R. § 4.71a. As a result, the Board finds an effective date prior to November 6, 2017, the date of claim for the Veteran's now service-connected bilateral hip disabilities, is not warranted, and, to that extent, his appeal is denied. REASONS FOR REMAND 1. Entitlement to an increased rating for status post L1 and L2 compression fracture with wedging of the T12-L1 and L2, rated as 50 percent disabling prior to October 1, 2011; 10 percent disabling from October 1, 2011 to January 23, 2012; 20 percent disabling from January 23, 2012 to March 27, 2014; and 40 percent disabling thereafter, is remanded. In November 2018, the Board remanded the Veteran's appeal of the rating assigned for his service-connected lumbar spine disability for a new examination because his previous examination reports failed to adequately address functional impairment during flare-ups consistent with the holding of the United States Court of Appeals for Veterans Claims in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran was scheduled for a new spine examination in June 2019. Although the June 2019 VA examiner adequately addressed functional impairment during flare-ups, primarily due to the fact that the examination was conducted during a flare-up, the Board finds clarification of the June 2019 VA examiner's report is necessary to ensure the decision on the Veteran's appeal is fully informed. Specifically, the June 2019 VA examiner reported the Veteran's flare-ups "caus[e] the need for prolonged bed rest." Further, in Section XI of the disability benefits questionnaire, relating to intervertebral disc syndrome (IVDS), the June 2019 VA examiner confirmed previous findings that the Veteran has IVDS while also noting the Veteran had episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months, but the June 2019 VA examiner also checked the box indicating "no episodes of bed rest during the past 12 months." The Board is simply unable to reconcile these notations without further explanation, as the totality of the June 2019 VA examiner's report suggests the Veteran has "bouts of severe pain requiring bed rest." Thus, clarification of the report is necessary with respect to the frequency of any incapacitating episodes that may be present in the Veteran's case. 2. Entitlement to an initial rating in excess of 10 percent for right hip strain with painful and limited flexion is remanded. 3. Entitlement to an initial rating in excess of 10 percent for left hip strain with painful and limited flexion is remanded. 4. Entitlement to an initial compensable rating for right hip strain with limited extension is remanded. 5. Entitlement to an initial compensable rating for left hip strain with limited extension is remanded. 6. Entitlement to an initial rating in excess of 10 percent for right hip strain with limited abduction/adduction is remanded. 7. Entitlement to an initial rating in excess of 10 percent for left hip strain with limited abduction/adduction is remanded. The Board notes the Veteran's most recent hip examination was completed in May 2018. The May 2018 VA examiner's report fails to adequately address potential range-of-motion loss during flare-ups consistent with the Court's holding in Sharp. As a result, a new hip examination is required prior to a final decision on the Veteran's appeal of the ratings assigned for his bilateral hip disabilities. 8. Entitlement to an effective date earlier than November 6, 2017 for TDIU is remanded. 9. Entitlement to an effective date earlier than November 6, 2017 for the award of DEA benefits is remanded. The issues of entitlement to an effective date earlier than November 6, 2017 for TDIU and DEA benefits are inextricably intertwined with the Veteran's appeal of the rating assigned for his service-connected lumbar spine disability, as the rating period for this issue dates back further than the current effective date assigned for the Veteran's award of TDIU and DEA benefits. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 10. Entitlement to SMC based on the need of regular aid and attendance is remanded. The record establishes the Veteran experiences significant impairment due to his service-connected disabilities. The AOJ's October 2020 supplemental statement of the case concedes the Veteran's service-connected disabilities "prevent [him] from performing some major activities" but entitlement to SMC based on the need of regular aid and attendance was denied based on a finding that the Veteran is "able to take care of himself." It is not clear to the Board on which examination the AOJ based this finding because the Veteran has not been provided a full aid and attendance examination during the appeal period. Thus, the Board finds an aid and attendance examination is necessary to properly assess whether the Veteran meets the criteria outlined in 38 C.F.R. § 3.351. The matters are REMANDED for the following action: 1. Request an addendum to the June 2019 spine examination report clarifying what appears to be internal inconsistency as to the material issue of whether the Veteran experiences incapacitating episodes as a result of IVDS. The June 2019 VA examiner must be specifically asked whether the Veteran experiences incapacitating episodes, as contemplated by the alternate Rating Formula for IVDS Based on Incapacitating Episodes, which defines an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. There must be a full rationale to support the conclusion reached in this regard. If it is determined the Veteran experiences incapacitating episodes due to IVDS, the examiner must provide a retrospective opinion addressing both the approximate date of onset and frequency of such episodes throughout the appeal period based on the Veteran's September 2010 increased rating claim. If the June 2019 VA examiner is unavailable or cannot otherwise provide the requested addendum, it may be obtained from another examiner; however, if the addendum is obtained from another examiner, he or she must provide a full rationale to support his or her conclusion, as mere notations in a DBQ without further explanation will be deemed insufficient to resolve the current ambiguity in the record resulting from the June 2019 VA examination report. 2. Schedule the Veteran for a new examination to assess the functional impairment resulting from his service-connected bilateral 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). 3. Schedule the Veteran for an aid and attendance examination. The selected examiner must complete the most recent version of VA Form 21-2680, providing explanations as necessary (i.e., when requested on the form). 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.