Citation Nr: 21066234 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-62 640 DATE: October 29, 2021 REMANDED Entitlement to an initial evaluation in excess of 20 percent for residual shell fragment wound (SFW) left thigh, limitation of adduction is remanded. Entitlement to a separate compensable rating prior to October 6, 2016, a compensable rating prior to June 15, 2021, and in excess of 40 percent thereafter for residual SFW left thigh, limitation of flexion is remanded. Entitlement to a separate compensable rating prior to October 6, 2016, a compensable rating prior to June 15, 2021, and in excess of 10 percent thereafter for residual SFW left thigh, limitation of extension is remanded. Entitlement to an initial compensable rating for bilateral hearing loss disability is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND In February 2021, the Board remanded the issues of entitlement to an initial rating in excess of 20 percent for residual SFW left thigh (limitation of adduction) and TDIU for action consistent with the August 2020 United States Court of Appeals for Veterans' Claims (CAVC) Order and the Joint Motion for Partial Remand. The Board notes the CAVC determined that TDIU was raised as part and parcel of his increased rating claim for the left thigh. Rice v. Shinseki, 22 Vet. App. 447 (2009). As of October 6, 2016, separate noncompensable ratings were assigned for left thigh limitation of extension and limitation of flexion under Diagnostic Codes 5251 and 5252, respectively. Assigning separate ratings based on limitation of extension, flexion, adduction, and rotation of the hip under DC 5251, 5252 and 5253 does not amount to pyramiding under 38 C.F.R. § 4.14 and thus, the Board shall consider whether higher and/or additional separate ratings for the Veteran's service-connected left thigh disability are warranted. The issue of increased rating for bilateral hearing loss disability comes before the Board on appeal from a March 2017 decision. The matters have been merged on appeal. The Veteran presented testimony before the Board in October 2021. All issues are remanded Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding these matters and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board remanded the left thigh claim in February 2021 for a new examination to comply with the CAVC decision in Correia v. McDonald, 28 Vet. App. 158 (2016), and to adjudicate and develop the issue of TDIU. The Veteran was examined by VA in July 2021. The TDIU claim was not developed prior to adjudication in July 2021. Unfortunately, in the interest of concluding this case with a fair and just decision for the Veteran, the claims must be remanded once again in order to attempt to obtain the necessary medical and employment information. Specifically, and for the same reasons as before, it is noted that the most recently obtained VA examination in July 2021 is not in full compliance with Correia, supra. In addition, the Board notes the examination is not in compliance with the recent CAVC decision issued in Chavis v. McDonough, No. 18-2928 (April 16, 2021), regarding the criteria for a rating based on ankylosis. Although Chavis applies to ankylosis of the spine, the Board will apply the general concept to the Veteran's thigh disability. In this matter, the Board has still not been provided with the information necessary to enable the proper assessment of the left thigh disability. As already stated in the previous remand decision, examinations for joints disabilities generally must include range of motion (ROM) measurements. Correia, supra, at 158, 169. In conducting these measurements, the examiner should note not only whether pain on motion is present, but if so, where in the ROM the pain sets in and whether that pain causes functional loss. Id;(emphasis added). The Board has reviewed the July 2021 examination report. In pertinent part, the opposing undamaged joint (right hip) was not examined. The examiner noted pain on initial active range of motion testing causing functional loss; however, the examiner did not specify at which point pain began during range of motion testing. (Emphasis added.) While the examiner indicated that there was no ankylosis of the left hip, the examiner did not address whether the Veteran demonstrated functional loss consistent with that contemplated by ankylosis. Accordingly, the examination findings are not adequate for a contemporaneous rating. Primarily, the Board finds it necessary to obtain clinical findings showing at what point (in degrees) the Veteran's complaints of pain begin not just the endpoints of motion. The Board finds that clearer and more adequate descriptions of functional loss due to pain on motion testing and if no such functional loss, an explanation as to why pain does not contribute, and addressing whether there is the functional equivalent of ankylosis, would be important to informed appellate review. The Board finds that a new examination is warranted to support adequately informed appellate review and to comply with the decisions Correia and Chavis. 38 C.F.R. § 3.159 (c)(4). The Veteran testified that his bilateral hearing loss disability has worsened in severity since his last VA examination in January 2017. Accordingly, a new VA examination is necessary to assess the current level severity of the disability on appeal. See Snuffer v. Gober,10 Vet. App. 400, 403 (1997). In pertinent part, the Veteran testified that his service-connected left thigh disability interferes with his employability. The matter is remanded for the Veteran to submit a completed VA Form 21-8940, which would contain information regarding his education and date of last employment. Also, information from his last employer is needed. As such, it would also be premature for the Board to decide this issue until this development has been concluded. Finally, the Board notes that as a decision on the remanded issues of increased rating of the left thigh and bilateral hearing loss disability could significantly impact a decision on the issue of TDIU, they are inextricably intertwined and a remand of the claim for TDIU is also required for this reason. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to evaluate the current level of severity of the left thigh disability on appeal. A copy of this remand, the claims folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. a) The examiner is asked specifically to provide range of motion testing (ROM) for the left thigh/hip for active motion, passive motion, in both weight-bearing, and nonweight-bearing, and if possible, with range of the opposing undamaged joint. b) In addition, the examiner must discuss pain for ROM movements on active, passive, and repetitive use testing. The examiner is asked to address the following questions: (i) Are any ROM movements painful on active, passive, and repetitive use testing? If yes, identify whether active, passive, and repetitive use; and, identify at the point where pain starts not just the endpoints of motion. (ii) If yes (there are painful movements), does the pain contribute to functional loss or additional limitation of ROM? Please further describe the functional loss or additional limitation of ROM, to include noting the exact point at which pain starts. (iii) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. c) In addition, the examiner must discuss pain when used in weight-bearing or in nonweight-bearing. The examiner is asked to address the following questions: (i) Is there pain when the joint is used in weight-bearing or nonweight-bearing? If yes, identify whether weight-bearing or nonweight-bearing. If yes (there is pain when used in weight-bearing or nonweight-bearing), does the pain contribute to functional loss or additional limitation of ROM? Please further describe these limitations. (ii) If no (the pain does not contribute to functional loss or additional limitation of ROM), explain why the pain does not contribute. For all ROM testing, if pain is noted, the EXACT point at which pain is first noted must be specified. (d) The examiner must review the claims file and elicit information regarding the severity, frequency, and duration of all symptoms during flare-ups and repeated use over time, and the degree of functional loss during flare-ups and/or repeated used over time. If possible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran unless deemed to lack credibility or be inconsistent with other evidence such as test results. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. (e) The examiner should also comment on whether there is any form of ankylosis or the functional equivalent thereof, due to the inability to perform normal working movements of the body, including as due to pain. (f) The examiner should discuss the functional effects of the Veteran's service-connected residual SFW of the left thigh disability alone on his ability to perform the physical and mental acts, as appropriate, required to sustain substantially gainful employment consistent with his education and occupational experience. This discussion should include both sedentary and non-sedentary labor. The examiner should provide a complete rationale for all opinions provided. 2. Schedule the Veteran for a VA examination to evaluate the current level of severity of his bilateral hearing loss disability on appeal. The claim folder and all pertinent treatment records should be made available to the examiner for review, and review of such records should be noted in any subsequent report. The examiner should provide a detailed report of the Veteran's hearing loss, to include audiogram results. 3. The RO must request the Veteran to complete a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) in an attempt to ascertain specific information and circumstances of the Veteran's last full-time employment, to include his level of education, occupation, type of activities performed, his last day of full-time employment, and the date he became too disabled to work. 4. The RO must request from the Veteran that his last employer complete VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). 5. The RO must review the VA examiner's report(s) to ensure compliance with each of the Board's remand directives; and, if necessary, take corrective action regarding any deficiencies prior to readjudicating the claims and returning the matter to the Board, if otherwise in order. 6. If upon completion of the above the issues remain denied, the appeal should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. L. Wallin, 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.