Citation Nr: 21061766 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 13-05 085 DATE: October 5, 2021 REMANDED Entitlement to an increased rating for musculoligamentous strain of the right hip and right hip dysplasia, rated 10 percent disabling, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1982 to March 2005. The Department of Veterans Affairs (VA) is grateful for her service. In December 2020, the Board of Veterans' Appeals (Board) remanded the claim for additional development, and it now returns to the Board for further review. 1. Entitlement to an increased rating for musculoligamentous strain of the right hip and right hip dysplasia, rated 10 percent disabling, is remanded. In December 2020, the Board remanded the claim for a new examination because the prior examiners in July 2017 and August 2020 failed to address functional loss during flare-ups despite the Veteran's reports of flare-ups and functional loss or other impairment. The August 2020 examiner noted that the Veteran reported flare-ups, but the examiner failed to address additional limitation of motion during flare ups or to provide an explanation why an opinion of such associated limitation of motion could not be provided, as required by Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Upon a new VA examination in April 2021, the Veteran reported worsening pain and reported having increased pain with prolonged standing, sitting, and ambulation. The examiner noted that the pain caused the Veteran difficulty with weight-bearing activities and reduced range of motion. However, the examiner reported that the Veteran had not reported flare-ups. This is in apparent contradiction of prior self-reports of flare-ups in the record, which the examiner failed to explain. The examiner concluded that flare-ups and repeated use over time did not result in reduced range of motion from that measured for active and passive motion upon examination. However, the examiner neglected to explain how range of motion would be unaffected if the examiner noted that pain caused difficulty with weight-bearing activities and reduced range of motion, and that the Veteran had increased pain with prolonged standing, sitting, and ambulation. The examiner failed to explain these apparent contradictions. Additionally, the April 2021 VA examiner noted that increased pain caused interference with prolonged standing, sitting, and ambulation for both the left and right hips. The examiner failed to address disability solely attributable to the service-connected right hip disability. The Veteran is also separately 70% rated for a somatization disorder with predominant pain and generalized anxiety disorder (GAD). Because the examiner failed to distinguish, to the extent feasible, disability due to the left hip and due to somatization disorder, appropriate rating and avoidance of pyramiding, or assigning multiple ratings for the same impairment, cannot be accomplished. Where disabilities overlap in their resulting physical impairment and effect on functioning or where multiple diagnoses are assigned for the same disability, evaluation of the same (overlapping) disability under various diagnoses (and hence with multiple ratings), known as pyramiding, is to be avoided. 38 C.F.R. § 4.14; see Mittleider v. West, 11 Vet. App. 181, 182 (1998) (other disabilities which are distinguishable in their symptoms and impacts on functioning from those of the service-connected disability should not have their symptoms and impacts on functioning attributed to the service-connected disability for purposes of assigning a disability rating). Accordingly, regrettably, remand is again warranted for an examination that appropriately addresses the nature and severity and impact on functioning of the Veteran's musculoligamentous strain of the right hip and right hip dysplasia, distinguishing impairment due to distinguishable disabilities to the extent feasible, and appropriately addressing Sharp criteria. The examiner must also address the extent to which flare-ups as previously reported, as well as increased pain and symptoms with repeated use over time, such as when walking or exercising on an elliptical machine (noted at the April 2021 examination), caused decreased functioning. If the Veteran now denies flare-ups, this apparent change from prior self-reports should be addressed. The matter is REMANDED for the following actions: 1. Obtain any VA treatment records and any pertinent private treatment records not yet associated with the claims file. The Veteran's authorization or assistance should be requested, as appropriate. All requests, responses, and records received should be documented in the claims file. If any records cannot be obtained, the Veteran and her representative should be appropriately notified. 2. Schedule the Veteran for an examination of the nature and severity of her musculoligamentous strain of the right hip and right hip dysplasia by an examiner with sufficient expertise to evaluate these disabilities and to distinguish their associated impairment from impairment due to other physical disabilities or due to the Veteran's diagnosed somatization disorder, to the extent feasible. This should be conducted by an examiner other than the one who conducted the VA examination in April 2021. The examiner should be informed that this examination is necessary because the prior examinations in July 2017, August 2020, and April 2021 failed to address adequately effects of flare-ups and repeated use over time on the Veteran's impaired functioning due to her musculoligamentous strain of the right hip and right hip dysplasia, and because they failed to attempt to distinguish impairment due to musculoligamentous strain of the right hip and right hip dysplasia from that due to disability of the left hip and the Veteran's separately service-connected somatization disorder with associated disabling pain. The Veteran previously reported flare-ups, so that if she now denies flare-ups, this change should be addressed. The claims file must be carefully reviewed, including review of past examination and treatment records and the Veteran's own statements. Any necessary tests or studies should be conducted, including any which may be instrumental in distinguishing disability due to musculoligamentous strain of the right hip and right hip dysplasia from that due to left hip disability and other physiological conditions and due to somatization disorder. The examiner must also document and consider the Veteran's own statements regarding her disability since a layperson is competent to address symptoms as experienced and her recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. The examiner should specifically address effects of musculoligamentous strain of the right hip and right hip dysplasia. To comply with the Correia v. McDonald, the examiner must test and record the range of motion in active motion, passive motion, weight-bearing, and non-weight-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 this is so. To the extent feasible, the current examiner should attempt to distinguish disability intrinsic to the musculoligamentous strain of the right hip and right hip dysplasia from that due to other causes. In this regard, the examiner should address disability of the left hip and other parts as well as disability due to the Veteran's somatization disorder as potentially causal of impairment which might otherwise be attributable to musculoligamentous strain of the right hip and right hip dysplasia. All pertinent symptomatology and findings must be reported in detail in accordance with rating hip disabilities. All ranges of motion involving the Veteran's service-connected musculoligamentous strain of the right hip and right hip dysplasia should be tested, as well as the contralateral side (left hip); and the examiner should note if repeated range of motion testing results in additional limitation of motion or functional loss, or if there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's musculoligamentous strain of the right hip and right hip dysplasia, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination (if feasible). To the extent feasible, this should be estimated based on the Veteran's self-report of such limitations during past episodes of flare-up or with repeated use over time, if not exhibited at the time of examination. The examiner should also address the effects on occupational functioning and activities of daily living for the Veteran's musculoligamentous strain of the right hip and right hip dysplasia. This should address capacity for work or work-like activities regardless of the Veteran's work or retirement status. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1. 3. Thereafter, readjudicate the appealed claim. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.