Citation Nr: 21068707 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 18-53 311 DATE: November 12, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to October 17, 2019, for lumbar spine degenerative disc disease with intervertebral disc syndrome is remanded. Entitlement to service connection for left hip osteoarthritis with trochanteric bursitis is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1987 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision by the Department of Veterans Affairs (VA). 1. Entitlement to a rating in excess of 10 percent prior to October 17, 2019, for lumbar spine degenerative disc disease with intervertebral disc syndrome is remanded. In January 2021, the Board denied the Veteran's claim for an increased rating for lumbar spine disability. The Veteran appealed Board's decision to the United States Court of Appeals for Veteran Claims (Court). The parties filed a July 1, 2021, joint motion for partial remand, asking that the Board's decision as to the Veteran's rating for his lumbar spine degenerative disc disease with intervertebral disc syndrome prior to October 17, 2019, be vacated and remanded for further proceedings. The Court entered a July 8, 2021, Order granting the motion. The parties to the Joint Motion for Partial Remand (JMPR) indicated that the Board's reliance on a May 2018 examination in considering the period prior to October 17, 2019, was error because the examination was inadequate under Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran has been afforded two VA examinations during the period on appeal, none of which fulfilled the requirements of Sharp. Specifically, the Veteran was afforded VA examination in May 2018. During the May 2018 VA examination, the Veteran reported that he experienced flare-ups. See May 2018 Examination. The VA examiner failed to elicit information regarding flare-ups or describe functional loss during flares and the examiner provide adequate rationale explaining why they could not provide a determination as to additional range of motion limitation during flare-ups without resorting to speculation consistent with Sharp. The parties also agreed a later examination where the Veteran denied flare-ups did not cure this inadequacy. Since the prior VA examinations during the period on appeal are inadequate under Sharp, a remand for a new examination is required. 2. Entitlement to service connection for left hip osteoarthritis with trochanteric bursitis is remanded. The Veteran contends that he has a left hip disability, to include left hip osteoarthritis with trochanteric bursitis as due to service or as caused or aggravated by lumbar spine disability. The Veteran's claim was most recently before the Board in January 2021 at which time it was remanded for additional development. As will be discussed below, however, further development is once again necessary to ensure an adequate record upon which to decide the Veteran's claim. The Veteran's representative argues the March 2021 is inadequate because the examiner found that age was the strongest predictor of lumbar spine and hip arthritis and ignored the evidence of some relationship between lumbar spine arthritis and hip arthritis. See September 2017 Article; see also May 2021 Appellate Brief. The Board finds that March 2021 examination is still inadequate to adjudicate the Veteran's claim. Specifically, the April 2021 opinion appears to ignore the June 2020 VA examiner's findings that lumbar spine disease altered the relationship between the spine and the right hip, which is service connected. Rather than there being no medical evidence of this relationship, in this Veteran's case there is medical opinion attributing right hip pathology to lumbar spine disability. Also, the examiner cited findings from medical literature that strain or overuse from the joint repeating the same motion many times and abnormal gait that listed as issues that can cause bursitis. See June 2020 Examination; see also April 2021 Examination. This is essentially the Veteran's contention, that abnormal gait due to lumbar spine disability and repetitive motion while on active duty caused left hip bursitis. The Board also notes the Veteran has reported that overuse of the hip joints during service while climbing in and out of airplanes caused hip pain in service that had worsened over time. The Veteran's service records show consistent reports of lower left extremity pain and some limitation of hip motion. See March 2005 Service Record. The Board directed the examiner to address the Veteran's complaints of hip pain in April 2007. The April 2021 examiner did not address the Veteran's competent reports of left lower extremity pain in service and since separation. The Board finds that the statements provided fail to sufficiently support the examiner's opinion, resulting in an inadequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). When VA undertakes to obtain an evaluation, it must ensure that the evaluation is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given that the medical evidence of record fails to adequately address the issues raised, the Board finds that a new examination is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. (a.) The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. (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. (c.) The examiner must provide a retrospective medical opinion, as best as can be ascertained from the Veteran's self-reports as well as from clinical records and other evidence, including VA examination reports. The retrospective opinion must estimate any additional degrees of limited motion caused by functional loss during a flare-up since March 2018. The Veteran reported flare-ups of lumbar spine disability at the May 2018 VA examination. 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). 2. Obtain a new VA opinion regarding the following questions. The record must be made available to and reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should take a history from the Veteran as to the progression of his claimed disability. Following a review of the entire record, to include the Veteran's lay statements concerning onset and continuity of symptomatology, the examiner(s) should address the following question: For any currently diagnosed left hip disorder, Is it at least as likely as not (i.e., a 50 percent or greater probability) that left hip trochanteric bursitis or osteoarthritis was incurred in service? In this regard, the Board emphasizes that trochanteric bursitis and osteoarthritis are two separate disabilities, and both must be answered. Address the Veteran's reports of in-service left lower extremity pain and hip pain. Is it at least as likely as not (i.e., a 50 percent or greater probability) that such was caused or aggravated beyond its natural progression by his service-connected lumbar spine disability to include any functional impairment associated with those disabilities? In this regard, the Board emphasizes that causation and aggravation are two separate inquiries, and both must be answered. Address the June 2020 opinion regarding right hip disability. 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 (Continued on the next page) record (additional facts are required), or the examiner (does not have the knowledge or training). J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.