Citation Nr: 21069759 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 11-06 775 DATE: November 19, 2021 REMANDED Entitlement to an initial disability evaluation in excess of 30 percent for service-connected arthroplasty of the left hip, from March 31, 2006, is remanded. Entitlement to an initial disability evaluation in excess of 10 percent from March 31, 2006, and to an initial compensable rating from September 2, 2016, for limitation of extension of the right hip, associated with a core decompression and grafting surgical procedure, is remanded. Entitlement to an initial compensable evaluation for limitation of flexion of the right hip, associated with a core decompression and grafting surgical procedure, from March 31, 2006, is remanded. Entitlement to an initial disability evaluation in excess of 10 percent for limitation of adduction of the right hip, associated with a core decompression and grafting surgical procedure, from March 31, 2006, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to September 20, 2011. REASONS FOR REMAND The Veteran served honorably in the United States Navy from September 1995 to March 2006. These matters were most recently before the Board in April 2021, at which time the Board also remanded entitlement to a total disability rating based on individual unemployability (TDIU). The Board notes that the July 2021 Supplemental Statement of the Case noted that entitlement to TDIU had been granted in a June 2013 rating decision, effective September 20, 2011, finding that entitlement to TDIU was therefore moot. However, the Board finds that entitlement to TDIU, prior to September 20, 2011, remains part of this appeal. In this regard, the Veteran originally filed for a TDIU in September 2011, attributing such to his back disorder, right lower extremity radiculopathy, kidney stones and left hip arthroplasty. The Regional Office bifurcated his claim, and as stated, granted such in a June 2013 rating decision. However, the issue of entitlement to TDIU has been raised as part and parcel of the claims for higher ratings for his service-connected back disability (denied by the Board in the April 2021 decision) and left hip disability such that TDIU prior to September 20, 2011, remains on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that when the issue of entitlement to a TDIU becomes part and parcel of an underlying appeal for a higher disability rating, the grant of a TDIU does not bifurcate the appeal and a Notice of Disagreement does not need to be filed to challenge the effective date assigned for the award of a TDIU). Unfortunately, as detailed below, a remand is again required. Increased Rating Claims Per the Board's prior remand, the Veteran underwent a VA Hip and Thigh examination in July 2021. Upon testing, the examiner stated that pain was exhibited during range of motion in all directions for both hips. The Disability Benefits Questionnaire stated, "If any limitation of motion is specifically attributable to pain, weakness, fatigability, incoordination, or other; please note the degree(s) in which limitation of motion is specifically attributable to the factors identified and describe." The examiner left that section blank. However, the examiner's finding that there was pain in all directions appears to the Board that there was limitation of motion specifically attributable to pain, such that a response is necessary. Additionally, the April 2021 remand requested an addendum opinion directing the examiner to "clarify the duration, extent, and development, during the period from March 31, 2006, of any ankylosis affecting the Veteran's right and left hips," and for the left hip, in particular, "to clarify the duration, extent, and development, during the period from March 31, 2006, the surgical residuals the Veteran experienced, or continues to experience, as a result of his left hip total arthroplasty, which was performed in July 2004." In a July 2021 opinion, the examiner essentially replied that to render such an opinion would be purely speculative. While the Board can appreciate the challenges of offering a retroactive opinion, the Board is bound to provide an adequate VA opinion, once requested, and is also required to ensure substantial compliance with prior remand directives. In this case, the Board notes that there are past VA examinations of record, spanning the appeal period, which could inform the examiner's opinion. Accordingly, an addendum opinion is required. TDIU The Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the claim being remanded herein, as the outcome of the increased rating claim may impact the outcome of the TDIU claim. See, e.g., Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the Board will defer appellate consideration of the issue of entitlement to a TDIU pending completion of the actions requested below. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the current level and severity of his bilateral hip disorder. All applicable sections of the current Disability Benefits Questionnaire must be completed. 2. Request an addendum opinion from an appropriate clinician for the Veteran's bilateral hip disability. (a.) The examiner is asked to clarify the duration, extent, and development, during the period from March 31, 2006, of any ankylosis affecting the Veteran's right and left hips. (b.) For the left hip, in particular, the examiner is asked to clarify the duration, extent, and development, during the period from March 31, 2006, the surgical residuals the Veteran experienced, or continues to experience, as a result of his left hip total arthroplasty, which was performed in July 2004. For the purposes of this question, the examiner is asked to consider the duration, extent, and development, of the following categories of surgical residuals: i. painful motion or weakness such as to require the use of crutches. ii. markedly severe residual weakness, pain or limitation of motion following implantation of prosthesis. iii. moderately severe residuals of weakness, pain or limitation of motion. The examiner should discuss the pertinent medical evidence, to include VA examinations conducted during the appeal period, to render an opinion. 3. Then, readjudicate the remanded issues, to include entitlement to a TDIU, prior to September 20, 2011. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.Z., 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.