Citation Nr: 21064406 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-47 403 DATE: October 20, 2021 REMANDED Entitlement to a disability rating in excess of 30 percent from February 1, 2016, to January 9, 2020, and in excess of 50 percent thereafter for right total hip arthroplasty is remanded. Entitlement to an increased disability rating for lumbar spondylosis, degenerative disc space narrowing, and lumbar intervertebral disc syndrome ("back disability"), initially rated as 40 percent disabling from November 23, 2009, and currently rated as 20 percent disabling from September 9, 2015, is remanded. Entitlement to an initial disability rating in excess of 10 percent for right leg neuropathy is remanded. Entitlement to an initial disability rating in excess of 20 percent for bladder dysfunction is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Army from February 1980 to October 1983, October 2007 to November 2008, and from April 2011 to January 2012. This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2016 and February 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board, in pertinent part, remanded the instant issues on appeal for further development. The issues have returned to the Board for further appellate consideration. As regards to the increased rating claim for right total hip arthroplasty, while the matter was in remand status, in an April 2020 rating decision, the RO increased the Veteran's evaluation to 50 percent disabling, effective January 10, 2020, the date of VA examination. When a veteran seeks an increased rating, it is generally presumed that the maximum benefit allowed is sought, and a claim remains in controversy where less than the maximum benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). The issue has been restated accordingly. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that she is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Initially, the record reflects that the Veteran is in receipt of Social Security Administration (SSA) disability benefits. A review of the record does not disclose an attempt by the RO to obtain any records from the SSA. As such records may be potentially relevant to the claims on appeal at this time, a remand is necessary in order to obtain these records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed Cir. 2010); see also Baker v. West, 11 Vet. App. 163, 169 (1998). 1. Entitlement to a disability rating in excess of 30 percent from February 1, 2016, to January 9, 2020, and in excess of 50 percent thereafter for right total hip arthroplasty is remanded. Beyond the development discussed above, a new VA examination is warranted for the Veteran's service-connected right hip disability. The Board finds remand is again required because the development directed in the April 2019 Board remand was not accomplished. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the April 2019 remand, the Board directed the Agency of Original Jurisdiction (AOJ) to afford the Veteran with a new VA examination of the hips in compliance with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The Board directed the AOJ to afford the Veteran a new VA examination in order to determine the current severity of the Veteran's service-connected right hip disability and to provide range of motion testing in compliance with Correia. Pursuant to the April 2019 Board remand directives, the Veteran was afforded a VA examination of the hips in January 2020. The VA examiner did not provide range of motion measurements in passive motion, weight-bearing, or non-weight-bearing of either hip. Furthermore, while the examination report noted pain on motion for the right hip, the point during range of motion where pain started was not noted. The examiner did not provide an explanation as to why such testing was unnecessary. Therefore, the examination did not comply with the requirements in Correia, 28 Vet. App. at 168. The Board finds that a new VA examination of the hips is necessary. Thus, based on the above, and to ensure compliance with the April 2019 remand directives, a remand is required to assess the current severity of the Veteran's right hip. See Stegall, 11 Vet. App. at 271. 2. Entitlement to an increased disability rating for back disability, initially rated as 40 percent disabling from November 23, 2009, and currently rated as 20 percent disabling from September 9, 2015, is remanded. Beyond the development discussed above, a new VA examination is warranted for the Veteran's service-connected back disability. The Board finds remand is again required because the development directed in the April 2019 Board remand was not accomplished. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the April 2019 remand, the Board directed the AOJ to afford the Veteran with a new VA examination of the back in compliance with the requirements in Correia, 28 Vet. App. at 168. The Board directed the AOJ to afford the Veteran a new VA examination in order to determine the current severity of the Veteran's service-connected back disability and to provide range of motion testing in compliance with Correia. Pursuant to the April 2019 Board remand directives, the Veteran was afforded a VA examination of the back in January 2020. The VA examiner did not provide range of motion measurements in passive motion, weight-bearing, or non-weight-bearing of the back. The examiner noted that passive range of motion of the back was not performed, as it is not feasible to do this in a safe and reasonable manner. The examiner further noted that a non-weight-bearing assessment is not applicable. The examiner did not provide an explanation as to why range of motion testing in weight-bearing was unnecessary. Furthermore, while the examination report noted pain on motion for the back, the point during range of motion where pain started was not noted. The examiner did not provide an explanation as to why such testing was unnecessary. Therefore, the examination did not comply with the requirements in Correia, 28 Vet. App. at 168. The Board finds that a new VA examination of the back is necessary. Furthermore, the Board notes that during the course of the appeal, the Veteran was also afforded a VA examination for her back in September 2015. During this examination, the Veteran reported experiencing flare-ups. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the United States Court of Appeals for Veterans Claims (Court) held that when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, such opinion must be based on all procurable and assembled medical evidence, to include eliciting relevant information from the veteran as to the flare (i.e., the frequency, duration, characteristics, severity, or functional loss), and such opinion cannot be based on the insufficient knowledge of the specific examiner. In this case, the September 2015 VA examiner indicated that pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups. However, the examiner did not provide an estimate of range of motion during flare-ups of the back. Therefore, a retroactive opinion to address limitation of motion during flare-ups is warranted in light of Sharp. Thus, based on the above, and to ensure compliance with the April 2019 remand directives, a remand is required to assess the current severity of the Veteran's back to include retroactive opinions in light of Correia and Sharp. See Stegall, 11 Vet. App. at 271. With further regard to Sections 1 and 2, the Board also notes that, during the course of this appeal, the criteria for rating musculoskeletal disabilities changed effective February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Although it is unclear whether any of the changes in this case would impact the Veteran's ratings for her back and right hip, the Board finds that new comprehensive VA examinations of these service-connected disabilities are warranted in light of the regulatory changes. Thus, in addition to the previously stated reasons, remand is required to afford the Veteran with new full back and hip examinations so that the Board may properly rate the Veteran's service-connected disabilities under the applicable diagnostic code(s). 3. Entitlement to an initial disability rating in excess of 10 percent for right leg neuropathy is remanded. As additional information will be obtained during the requested VA back examination, which is pertinent to the issue of entitlement to a higher initial rating for right leg neuropathy, Board action on this matter at this time would be premature. Hence, this matter is being remanded as well. 4. Entitlement to an initial disability rating in excess of 20 percent for bladder dysfunction is remanded. As noted above, remand is required to obtain any records from the SSA. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record herself. 2. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include SSA disability determinations and any medical records underlying these determinations. All reasonable attempts to obtain such records should be made and documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This should be documented in the claims file. The Veteran must be notified in accordance with 38 C.F.R. § 3.159(e). 3. After obtaining any outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the current level of severity of her service-connected back (to include her right leg neuropathy) and right hip disabilities. A separate examination for the Veteran's neuropathy need not be conducted unless deemed necessary by the examiner assigned to this case. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the severity of the Veteran's service-connected disabilities. The examiner should provide all information required for rating purposes, to specifically include range of motion of the back and each hip in active motion, passive motion, weight-bearing, and non-weight-bearing. Further, the examiner must indicate if movement is limited by pain, and if so, at what point. The examiner is requested, to the extent possible, to provide estimates of range of motion if the Veteran asserts she is unable to perform range of motion testing due to pain. 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 must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, incoordination; and the effects of the service-connected disabilities on the Veteran's ordinary activity, including her ability to work. The examiner should also review the VA examinations containing range of motion findings pertinent to the Veteran's back and right hip conducted during the course of the appeal. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. The examiner should also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner should identify the extent of the Veteran's functional loss during flare-ups and offer range of motion estimates based on that information. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. The examiner should also specifically interview the Veteran about the nature of the flare-ups that she reported in the September 2015 VA examination; assess this impairment during flare-ups, and provide a retrospective opinion as to any additional functional loss during flare-ups at that time, and provide an estimate of that loss in terms of degrees reduction in range of motion. The examiner is requested to comment on the severity of the Veteran's service-connected back, right leg neuropathy, and right hip throughout the rating period. The examiner should also discuss the effect of the service-connected disabilities on her occupational functioning and daily activities. The VA examiner should present findings necessary to consider the claim pursuant to the new musculoskeletal regulations. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. (Continued on next page) 4. After completing all indicated development, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, Associate 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.