Citation Nr: 21064382 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 13-06 172 DATE: October 20, 2021 REMANDED A rating in excess of 10 percent for right mid-anterolateral thigh myositis ossificans with periosteal heterotropic ossification at the proximal femoral diaphysis and adjacent soft tissues (right thigh residuals), rated under Diagnostic Code (DC) 5252 (previously rated under DC 5023 myositis ossificans), and manifested by limitation of flexion, is remanded. An initial compensable evaluation for right thigh residuals, rated under DC 5253 (previously rated under DC 5023), and manifested by limitation of rotation, is remanded. An initial compensable evaluation for the right thigh, rated under DC 5251 (previously rated under DC 5023), and manifested by limitation of extension, is remanded. REASONS FOR REMAND The Veteran had active service from June 1990 to August 1990. This appeal comes before the Board of Veterans Affairs (Board) from a March 2010 rating decision. The appeal was previously before the Board in January 2017 and July 2018. Most recently, the appeal was also before the Board in August 2020 at which time the appeal was denied. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court). In a June 2021 Order of the Court granting a Joint Motion for Remand (JMR), the parties agreed to vacate the August 2020 Board decision and remand the matter for further development and readjudication based on the terms of the JMR. The case has been returned to the Board. 1. A rating in excess of 10 percent for right mid-anterolateral thigh myositis ossificans with periosteal heterotropic ossification at the proximal femoral diaphysis and adjacent soft tissues (right thigh residuals), rated under Diagnostic Code (DC) 5252 (previously rated under DC 5023 myositis ossificans), and manifested by limitation of flexion is remanded. 2. An initial compensable evaluation for right thigh residuals, rated under DC 5253 (previously rated under DC 5023), and manifested by limitation of rotation is remanded. 3. An initial compensable evaluation for the right thigh, rated under DC 5251 (previously rated under DC 5023), and manifested by limitation of extension is remanded. In the June 2021 JMR, the parties determined the May 2019 VA Hip and Thigh Conditions examination report, of which the August 2020 Board decision relied, did not sufficiently address the Board's July 2018 remand order that requested a VA examination that complies with Correia v. McDonald, 28 Vet. App. 158 (2016). The parties also determined the May 2019 VA Hip and Thigh Conditions examination does not comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017). Correia mandates certain examinations include the testing described in 38 C.F.R. § 4.59 (2018) or an explanation as to why such testing is not warranted or not possible. Sharp requires VA examiners to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. It also requires that VA examiners estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran's own statements. If an estimate cannot be provided without resorting to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large or insufficient knowledge of the specific examiner. Specifically, the May 2019 examiner failed to provide range-of-motion measurements for passive motion, weightbearing, and nonweightbearing. The examiner also failed to elicit information about the extent of the Veteran's functional impairment during flare-ups in terms of range-of-motion loss. Furthermore, the examiner failed to elicit information about the extent of the Veteran's functional impairment in terms of range of motion following repeated use over time. A remand confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West,11 Vet. App. 268, 271 (1998). Stegall requires only substantial, and not strict compliance, with the terms of a Board remand. D'Aries v. Peake, 22 Vet. App. 97 (2008). As a result, a new Hip and Thigh Conditions examination is warranted that provides the testing described in 38 C.F.R. § 4.59 in addition to any estimated range-of-motion measurements during a flare-up and during repeated use. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and any outstanding private medical records identified by the Veteran as pertinent to his right hip condition. 2. Next, schedule the Veteran for an appropriate VA examination to assess the nature and current level of severity of his service-connected right hip condition. The Veteran's claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The appropriate Disability Benefits Questionnaires should be filled out. The examiner must include all the following: (a.) Active range-of-motion testing results, (b.) Passive range-of-motion testing results, (c.) Weightbearing range-of-motion testing results, and (d.) Non-weightbearing range-of-motion testing results. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e., active or passive, weightbearing or non-weightbearing), must be specified. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran's own statements, is not sufficient to make such an estimate. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. P. M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.