Citation Nr: A21016547 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 190812-26432 DATE: October 12, 2021 ISSUES 1. Entitlement to an initial compensable rating for service-connected left thigh, limitation of flexion. 2. Entitlement to an initial compensable rating for service-connected for left thigh, limitation of extension. 3. Entitlement to an increased rating in excess of 10 percent for left high bursitis. 4. Entitlement to an increased rating in excess of 10 percent for lumbar degenerative joint disease (DJD). 5. Entitlement to a total disability rating for individual unemployability (TDIU). REMANDED 1. Entitlement to an initial compensable rating for service-connected left thigh, limitation of flexion is remanded. 2. Entitlement to an initial compensable rating for service-connected for left thigh, limitation of extension is remanded. 3. Entitlement to an increased rating in excess of 10 percent for left high bursitis is remanded. 4. Entitlement to an increased rating in excess of 10 percent for lumbar degenerative joint disease (DJD) is remanded. 5. Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the Air Force from April 1965 to April 1991. This matter comes before the Board on appeal from a June 2019 rating decision. In August 2019 the Veteran filed a VA Form 10182 and requested a review of his claims with a hearing before a Veterans Law Judge. As a result, a Board hearing was held in May 2021. Under the modernized review system, also known as the Appeals Modernization Act (AMA), the Board may only consider the evidence of record available at the time of the rating decision on appeal, and the evidence of record filed within 90 days of the Board hearing. 38 C.F.R. § 20.301. 1. Entitlement to an initial compensable rating for service-connected left thigh, limitation of flexion is remanded. 2. Entitlement to an initial compensable rating for service-connected for left thigh, limitation of extension is remanded. 3. Entitlement to an increased rating in excess of 10 percent for left high bursitis is remanded. 4. Entitlement to an increased rating in excess of 10 percent for lumbar degenerative joint disease (DJD) is remanded. The Veteran and his representative, present at the Board hearing, indicated that the VA examinations of the Veteran's left thigh, left hip, and back disabilities are inadequate. The Veteran, through his representative, asserted that when performing his range of motion tests during his VA examinations, he "pushed through the pain" and perhaps felt pain sooner than reported. Moreover, the Veteran noted that regarding his left hip and thigh disabilities, he experiences flare-ups at least two times a day that require him to soak in hot baths. The Veteran, through his representative, asserts that his pain and pain during flare-ups were not accurately reported in his VA examination. The June 2019 VA examination of his hip and thigh indicates that repetitive testing was not completed due to "fear of pain," and the examiner was not able to find or describe any functional loss with repetitive use. In fact, the VA examiner stated, "After further review of the order request, DBQ, physical exam, reported history and subjective complaints, relevant evidence of record and using my medical knowledge and expertise, there remains no basis to offer additional losses of function or motion when it comes to repeated use overtime." Furthermore, the examiner reported that the examination was not being done during a flare-up, and that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups, with no additional description in terms of range of motion provided. Again, the VA examiner reported, "After further review of the order request, DBQ, physical exam, reported history and subjective complaints, relevant evidence of record and using my medical knowledge and expertise, there remains no basis to offer additional losses of function or motion when it comes to flare-ups." Similarly, regarding the Veteran's back, the Veteran, through his representative at the hearing, asserted that, "On the exam there's a repetitive motion testing that indicated that the Veteran was too fearful of the pain to even perform that test, just because of the --how extreme the pain was that day. Additionally, again, the flare-up issue arose where they said there were no flare-ups, it didn't cause functional loss. But, again, the Veteran's in constant pain on a daily basis which prevents him to conduct normal activities of daily living." When looking at the June 2019 VA examination of the Veteran's back, repetitive use testing was not performed due to fear of pain, and again no additional functional loss or impairment was reported for repetitive use. The exam was noted to be performed during a period without a flare-up, and again no additional functional loss was noted or reported in terms of range of motion. Again, the examiner stated, "After further review of the order request, DBQ, physical exam, reported history and subjective complaints, relevant evidence of record and using my medical knowledge and expertise, there remains no basis to offer additional losses of function or motion when it comes to flare ups." Under the AMA, the Board has jurisdictional authority to remand an appeal to the AOJ for correction of a pre-decisional regulatory or statutory duty to assist error if correction of such error would have a reasonable possibility of aiding in substantiating a claim. 38 C.F.R. § 20.802 (a). In this case, the Board finds the VA examinations of record to be inadequate, indicating a pre-decisional duty to assist issue that must be corrected on remand. Therefore, the Board remands these matters for new VA examinations. 5. Entitlement to a total disability rating for individual unemployability (TDIU) is remanded. During the course of the appeal, the Veteran has submitted evidence that he was used to work as a teacher, that due to his service-connected disabilities he can no longer stand for long periods of time, and that he stopped working as a teacher as a result of his service-connected disabilities. Thus, the Board finds that the issue of TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that, when raised by the record, entitlement to TDIU is part and parcel of an increased rating claim). As noted above, under the AMA, the Board has jurisdictional authority to remand an appeal to the AOJ for correction of a pre-decisional regulatory or statutory duty to assist error if correction of such error would have a reasonable possibility of aiding in substantiating a claim. 38 C.F.R. § 20.802 (a). In this case, the issue should have been developed and considered by the AOJ, as it was raised in the record on appeal. In addition to the Veteran's testimony at his Board hearing, evidence of a TDIU is included in the June 2019 VA examination. Regarding functional impact of his left thigh and left hip disabilities, it was noted that there was functional impact and that he was currently or previously employed as an adjunct college faculty, and that he reported "standing, ambulation, sitting, and use of stairs worsens left hip bursitis." Although the Veteran at his May 2021 hearing noted that he no longer works as a teacher, it is unclear if he was unemployed during the relevant period on appeal in this case, and such should be developed. Therefore, the Board finds that a remand is necessary for the AOJ to develop and adjudicate this issue in the first instance. The matters are REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940 with instructions that it should be completed in order to assist with the adjudication of his TDIU claim. If the Veteran provides a completed VA Form 21-8940, complete any additional development prompted by the information on the completed form. 2. Schedule the Veteran for a VA examination to determine the nature and severity of his left thigh and left hip disabilities. The VA examination should include all tests and evaluations deemed necessary by the examiner. The examiner should report all manifestations related to the disabilities. The claims file must be made available to the examiner for review. (a.) The examiner is requested to test the ROM of the thigh and hip active motion, passive motion, weight-bearing, and nonweight-bearing (if applicable). If the examiner is unable to conduct the required testing, or concludes such testing is not necessary, he or she should clearly explain why that is so. (b.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement 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. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should acknowledge, address, consider, and discuss all lay evidence in the record pertaining to the Veteran's left hip and thigh disabilities. See May 2021 hearing transcript. (c.) Should the Veteran be unable to perform repetitive use testing, the examiner must attempt to elicit information regarding the degree of functional loss, to include a range of motion limitations, as a result of repetitive use. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to repetitive use based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should acknowledge, address, consider, and discuss all lay evidence in the record pertaining to the Veteran's left hip and thigh disabilities. See May 2021 hearing transcript. (d.) To the extent possible, the examiner is directed to provide a retrospective opinion on the severity of the Veteran's left hip and thigh disabilities that extends back to the period from April 2019 to June 2019. Rationale must be provided for all requested opinions. If the examiner concludes that an opinion cannot be offered without resorting to mere speculation, the examiner must address whether research in the medical literature might assist him/her in providing the medical opinion requested in this matter, and if so, such research in the medical literature must be conducted. The examiner must also indicate whether any use of the phrase "without resorting to mere speculation" reflects the limitations of knowledge in the medical community at large as opposed to the limits of his/her knowledge and expertise in particular. 3. Schedule the Veteran for a VA examination to determine the nature and severity of his lumbar spine disability. The VA examination should include all tests and evaluations deemed necessary by the examiner. The examiner should report all manifestations related to the disability. The claims file must be made available to the examiner for review. (a.) The examiner is requested to test the ROM of the lumbar spine in active motion, passive motion, weight-bearing, and nonweight-bearing (if applicable). If the examiner is unable to conduct the required testing, or concludes such testing is not necessary, he or she should clearly explain why that is so. The examiner should also comment upon the functional impairment resulting from the Veteran's lumbar spine disability. (b) The examiner is requested to indicate whether intervertebral disc syndrome related to the Veteran's service-connected back disability is present. If so, the examiner should the total duration of any incapacitating episodes over the past 12 months. The examiner is advised that an 'incapacitating episode' is defined 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. (c) The examiner is also requested to indicate whether the Veteran's back disability results in any objective neurologic impairments, to include radiculopathy of the bilateral lower extremities and, if so, the nature and severity of such neurologic impairment. (d.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement 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. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should acknowledge, address, consider, and discuss all lay evidence in the record pertaining to the Veteran's left hip and thigh disabilities. See May 2021 hearing transcript. (e.) Should the Veteran be unable to perform repetitive use testing, the examiner must attempt to elicit information regarding the degree of functional loss, to include a range of motion limitations, as a result of repetitive use. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to repetitive use based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should acknowledge, address, consider, and discuss all lay evidence in the record pertaining to the Veteran's left hip and thigh disabilities. See May 2021 hearing transcript. (f.) To the extent possible, the examiner is directed to provide a retrospective opinion on the severity of the Veteran's lumbar spine disability that extends back to the period from April 2019 to June 2019. Rationale must be provided for all requested opinions. If the examiner concludes that an opinion cannot be offered without resorting to mere speculation, the examiner must address whether research in the medical literature might assist him/her in providing the medical opinion requested in this matter, and if so, such research in the medical literature must be conducted. The examiner must also indicate whether any use of the phrase "without resorting to mere speculation" reflects the limitations of knowledge in the medical community at large as opposed to the limits of his/her knowledge and expertise in particular. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Tunis, 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.