Citation Nr: 21068072 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 14-15 888 DATE: November 9, 2021 ISSUES 1. Entitlement to an increased rating for fragment wound, back, lower thoracic area, moderate injury MG XX with intervertebral disc syndrome (back disability), in excess of 20 percent disabling prior to September 10, 2012, and in excess of 40 percent thereafter. 2. Entitlement to service connection for right hip disability, to include as secondary to the service-connected back disability. 3. Entitlement to service connection for left hip disability, to include as secondary to the service-connected back disability. 4. Entitlement to an earlier effective date for the grant of entitlement to special monthly compensation based on housebound criteria being met (SMC). 5. Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU) prior to April 9, 2012. REMANDED Entitlement to an increased rating for the back disability, in excess of 20 percent disabling prior to September 10, 2012, and in excess of 40 percent thereafter is remanded. Entitlement to service connection for right hip disability, to include as secondary to the service-connected back disability is remanded. Entitlement to service connection for left hip disability, to include as secondary to the service-connected back disability is remanded. Entitlement to an earlier effective date for the grant of entitlement to SMC is remanded. Entitlement to a TDIU prior to April 9, 2012, is remanded. REASONS FOR REMAND The Veteran had active service from March 1967 to March 1969. The Veteran is the recipient of, among other decorations, a Purple Heart Medal, Vietnam Campaign Medal, and two Bronze Star Medals. This matter initially comes before the Board of Veterans' Appeals (Board) from a June 2012 rating decision of the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut. Jurisdiction was subsequently transferred to the RO in Detroit, Michigan. In July 2017 the Veteran provided testimony during a videoconference hearing before the undersigned. A transcript of the hearing is of record. When this case was most recently before the Board in November 2020, it was decided in part and remanded in part for additional evidentiary development. It has since been returned for further appellate action. The Board finds that further development is necessary prior to final adjudication of the Veteran's claims on appeal. Back Disability In response to the Board's remand, the Veteran was afforded a VA-contracted examination in June 2021 in which he reported that his back progressively worsened over the years to include problems with bending, lifting, and twisting. Physical examination showed "suboptimal effort - invalid for rating purposes" was noted for his initial range of motion testing and pain was noted in forward flexion; however, range of motion in degrees was not provided. In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) noted the final sentence of § 4.59, which states "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." The Court found this sentence to be ambiguous because the regulation, considered as a whole, is meant to guide adjudicators in determining the proper level of disability of joints, and if the range of motion testing listed in the last sentence is not required, it is unclear how an adjudicator could adequately rate a claimant's joint disability and account for painful motion. However, compelled by § 4.59's place in the regulatory scheme (it preceded the disability rating schedule), the Court held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. As also relevant, a more recent Court decision addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. As the June 2021 examination report did not provide all of the information specified by Correia, the claim must be remanded for a new VA examination to obtain the information necessary to properly adjudicate this claim. Right Hip and Left Hip Disabilities The Veteran contends that he has a bilateral hip disability as related to service or as secondary to his service-connected back disability. The Board notes that the Veteran also testified before the undersigned that this bilateral hip disability encompassed radiculopathy. In response to the Board's remand, an addendum VA-contracted opinion was obtained in January 2021 in which the examiner stated in pertinent part that there was no objective medical evidence showing a link between the Veteran's current reports of bilateral hip pain or his current diagnosis of arthritis in the hips and his time in military service. The examiner stated that per the available documentation, the Veteran's bilateral hip pain "may" be the result of pain radiating from the lumbar region into the hips or it may be due to the arthritis in the hips; pain in the hips "could" lead to some functional loss of the hips. In this case, the Board finds that clarification should be sought from the January 2021 examiner on remand. To this point, in Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. Lexis 8467 (Fed. Cir. Apr. 3, 2018), the Federal Circuit found that the term "disability" as used in 38 U.S.C. 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." The case reversed years of precedent that had held that "pain alone is not a disability for the purposes of VA disability compensation." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Pursuant to Saunders, the Board finds that an addendum opinion should be obtained on remand to address the correct legal standard in determining whether it is as likely as not (50 percent or greater) that the right and left hip pain alone was (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran's service-connected back disability and whether it is as likely as not (50 percent or greater) that such right and left hip pain symptomatology represents a functional loss. TDIU and Earlier Effective Date for SMC The Board finds that the issues of entitlement to a TDIU and entitlement to an earlier effective date for the grant of SMC are inextricably intertwined with the issues remanded herein. Therefore, the Board defers ruling on these matters. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the manifestations of the service-connected back disability. The electronic record, to include a copy of this remand, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Ensure that the examiner provides all information required for rating purposes. The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran's disabilities, i.e., the extent of the Veteran's pain-free motion. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on "weight-bearing," please specifically indicate why that testing cannot be done. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner(s) is instructed to inquire whether there are periods of flare-ups. If the answer is "yes," the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner(s) must ALSO name the precipitating and alleviating factors. The examiner(s) must ALSO estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. 2. Provide access to the electronic claims file to the January 2021 examiner, or appropriate substitute if this examiner is not available, to provide an addendum opinion regarding the Veteran's claimed right hip and left hip disabilities. The electronic claims file must be made available to and reviewed by the examiner. An examination should be performed if deemed necessary by the examiner providing the requested opinion. The examiner should address the following: The examiner must opine whether it is as likely as not (50 percent or greater) that the right and left hip pain alone was (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran's service-connected back disability. The examiner should state whether any pain claimed by the Veteran is supported by adequate pathology, and if so, whether it is as likely as not (50 percent or greater) whether such pain symptomatology represents a functional loss. A full and complete rationale for all opinions expressed must be provided. 3. Then, after undertaking any additional development that is deemed warranted, readjudicate the claims on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. Specifically, readjudicate the issue of entitlement to a TDIU prior to April 9, 2012, with consideration of referral to the Director, Compensation Service, for extra-schedular consideration. If the decision remains adverse to the Veteran, he and his attorney should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.