Citation Nr: 21070392 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 11-22 112 DATE: November 23, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right thigh limited flexion due to femur fracture with leg length discrepancy and osteoarthritis of the right hip and pelvis for the period prior to February 13, 2020, is remanded. Entitlement to a rating in excess of 10 percent for a right thigh disability with limited adduction, abduction, or rotation for the period prior to February 13, 2020, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from January 1, 2015 to October 1, 2017, on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran had active duty service from August 1972 to March 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which continued the 10 percent rating for a right femur fracture. In a May 2019 rating decision, the RO changed and separated the ratings as follows: service connection for limited extension of the right thigh due to femur fracture with osteoarthritis of the right hip was granted and assigned a 10 percent rating, effective July 20, 2009; service connection for limited flexion due to right femur fracture with leg length discrepancy with osteoarthritis of the right hip and pelvis was granted and assigned a 10 percent rating, effective July 20, 2009; and, service connection for impairment of the right thigh due to right femur fracture with leg discrepancy with osteoarthritis of the hip and pelvis was granted and assigned a noncompensable rating, effective July 20, 2009. In a September 2020 rating decision, the RO increased the rating for limited flexion due to right femur fracture with leg length discrepancy with osteoarthritis of the right hip and pelvis to 40 percent and increased the rating for impairment of the right thigh due to right femur fracture with leg length discrepancy with osteoarthritis of the hip and pelvis to 20 percent, effective February 13, 2020, respectively. These matters were last before the Board in May 2021, at which time they were remanded for additional evidentiary development. In a September 2021 rating decision, the RO increased the rating to 10 percent for the Veteran's right thigh disability due to right femur fracture with leg discrepancy with osteoarthritis of the hip and pelvis, effective July 20, 2009. With regard to the issue of TDIU, the RO discontinued TDIU in an October 2014 rating decision, effective January 1, 2015. In a February 2018 rating decision, TDIU was granted, effective October 1, 2017. 1. Entitlement to a rating in excess of 10 percent for right thigh limited flexion due to femur fracture with leg length discrepancy and osteoarthritis of the right hip and pelvis for the period prior to February 13, 2020 is remanded; 2. Entitlement to a rating in excess of 10 percent for right thigh disability with limited adduction, abduction, or rotation for the period prior to February 13, 2020 is remanded. Pursuant to the Board's remand instructions, a VA examination was performed in August 2021 and an addendum opinion was issued the same month. The examiner noted that his findings in the August 2021 examination related back to the period prior to February 13, 2020. After a review of the evidence, the Board finds that the August 2021 examination is insufficient to determine the present claim. In this regard, although pain was noted with weight-bearing and non-weight bearing, correlating range of motion findings were not provided pursuant to the remand directives and Correia v. McDonald, 28 Vet. App. 158 (2016). Accordingly, the Board finds that an addendum opinion is warranted on remand. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from January 1, 2015 to October 1, 2017, on an extraschedular basis, is remanded. In February 2015 and January 2018 statements, the Veteran indicated that he had never been employed since his discharge from service in 1987. In an October 2016 VA examination, the examiner noted that his hip and thigh disability impacted his ability to work. In a February 2018 VA examination, the examiner noted that he had total occupational and social impairment due to his service-connected bipolar disorder. From January 1, 2015, to October 1, 2017, the Veteran's combined disability rating is 60 percent. Thus, he does not meet the threshold requirement for a TDIU. Nevertheless, VA's policy is to rate totally disabled all veterans who are unemployable. In such cases, the rating boards should submit the case to the Director, Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b). Therefore, the claim of entitlement to a TDIU prior to October 1, 2017, must be referred to the Director, Compensation Service. The matters are REMANDED for the following actions: 1. Forward the claims file, including a copy of this remand, to the August 2021 examiner for an addendum medical opinion. If the August 2021 examiner is unavailable, forward to an appropriate clinician. A VA examination is only necessary if deemed so by the examiner. The examiner should conduct a review of the record and respond to the following question: With regard to the August 2021 VA examination, provide an estimate of the Veteran's right hip and thigh range of motion in the weight bearing and non-weight bearing position and note at which point there is pain, if any. The examiner is to attempt to elicit information from the record to reply. Should the examiner maintain that they cannot do so without resorting to speculation, they must explain why this is so. Note: Any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large and not the insufficient knowledge of the examiner. The examiner may indicate the degree of confidence that they place on their estimate, on a scale of 1 to 5, with 1 being least confident and 5 being most confident. The examiner should provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. (Continued on the next page) 2. Thereafter, refer the claim for a TDIU to the Director, Compensation Service for the period from January 1, 2015, to October 1, 2017, and notify the Veteran of such action. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Merrick 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.