Citation Nr: 21071301 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-02 995 DATE: November 30, 2021 REMANDED The claim for a rating in excess of 10 percent for residuals of left ischiopubic ramus fracture (limitation of adduction) is remanded. The claim for a compensable rating for residuals of left ischiopubic ramus fracture (limitation of flexion) is remanded. The claim for a total disability evaluation based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from March 1994 to December 1997. The matters were previously remanded by the Board in May 2018, April 2020 and March 2021 for further developments. In its March 2021 decision, the Board directed the Agency of Original Jurisdiction (AOJ) (1) to give Veteran an opportunity to identify any outstanding private or VA treatment records and to obtain such outstanding records, (2) to provide the Veteran with a VA Form 21-8940 with instructions that it should be completed in order to assist with the adjudication of the TDIU claim, and (3) to conduct a VA examination to assess the severity of the Veteran's left hip condition (residuals of left ischiopubic ramus fracture), with specific request that (a) the examiner should determine in terms of degree of additional range-of-motion loss due to pain, weakness, excess fatigability, or incoordination during flareups, and (b) that the examiner should review evidence during the appeal period by reviewing relevant evidence, to include VA hip examinations dated April 2019, October 2012 and October 2014, and provide a retrospective opinion as to the estimated additional loss of range of motion (in terms of degrees) during flareups as well as a retrospective opinion as to the estimated range of motion (in terms of degrees) of the left hip on passive motion, with weight-bearing and non-weight-bearing comparing to such findings from the opposite undamaged right hip. If the examiner cannot provide such opinions, an explanation should be provided. For the reasons discussed below, the Board finds that the March 2021 Board remand directives have not been substantially complied with, therefore, another remand is warranted. Review of record shows that the AOJ sent a development letter to the Veteran on April 2, 2021 asking her to complete and return the enclosed VA Form 21-4142 (Authorization to Disclose Information to VA) , VA Form 21-4142a (General Release for Medical Provider Information to VA), VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefit). However, the records do not show that the Veteran has completed and returned these forms to the AOJ. In a written statement in August 2021, the Veteran contended that all she received was a typical development letter asking if she had any additional information to provide. It is not clear whether the Veteran received the above-mentioned forms. To facilitate the development of the Veteran's claims, another effort to contact the Veteran to complete and return these forms is warranted. Subsequent to the Board March 2021 remand decision, the Veteran underwent a VA hip examination in May 2021. The examiner indicated that the Veteran did not report any flare-ups. However, the Veteran reported in her written statements in August 2021 and again in September 2021 that she experienced flareups in her left hip. Accordingly, the Board finds that the May 2021 VA examination did not adequately reflect the Veteran's left hip condition during flareups. The Veteran underwent another VA hip examination in June 2021. The examiner again indicated that the Veteran did not report any flare-ups, which is contradictory to the Veteran's lay statements dated August 2021 and September 2021. In addition, the examiner indicated that the Veteran's left hip had full range of motion in adduction, but indicated that limitation of adduction prevented her from crossing legs. Although a VA Addendum report in July 2021 clarified that this was a clerical error, the June 2021 examiner should have marked that there was "no" limitation of adduction to prevent leg crossing. However, the July 2021 Addendum report is contradictory to the May 2021 VA examination which also noted that the limitation of adduction prevented leg crossing, as well as the Veteran's statement in August 2021 stating that she could not cross her legs. Furthermore, while the June 2021 examiner indicated that the Veteran's left hip had full range of motion in all directions in passive movement and in active movement, the Veteran reported in her August 2021 statement that the June 2021 examiner pushed her left leg down to the full flexion even after she said stop due to pain. The Veteran indicated that she could not achieve full flexion in her left hip by voluntary movement. Finally, the June 2021 examiner indicated that pain, fatigability, weakness, lack of endurance or incoordination during flare-ups and repeated use over time did significantly limit functional ability, but still indicated there was full range of motion in all directions during flare-ups and repeated use over time. Accordingly, the Board finds that the June 2021 VA examination is also inadequate. The TDIU claim is inextricably intertwined with the left hip increased rating claims. It too should be remanded. The matters are REMANDED for the following actions: 1. Mail another development letter to the Veteran asking her to complete and return VA Form 21-4142 (Authorization to Disclose Information to VA) , VA Form 21-4142a (General Release for Medical Provider Information to VA), VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefit). 2. Schedule another VA examination to assess the Veteran's left hip disability. The examiner should (1) In compliance with Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner must test for pain and record the range of motion for the left hp in active motion, passive motion, weight-bearing, and nonweight-bearing conditions and, if possible, with the range of motion for the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, or is not medically appropriate, then the examiner should provide a clear explanation as to why the testing was not conducted. (2) In compliance with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner should express an opinion as to whether there would be additional functional impairment on repeated use over time or during flare-ups. The examiner should estimate the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss, if possible. If the Veteran indicates that she is not currently experiencing a flare-up at the time of the examination, the examiner should still estimate any additional functional loss during flare-ups or on repeated use, based on all available evidence, to include the Veteran's own description of her flare ups' severity, frequency, duration, and/or functional loss manifestations. The examiner may not decline to provide an opinion on the basis of speculation unless the examiner has "considered all procurable and assembled data" and offered a basis for this conclusion, and it must be apparent that the inability to provide an opinion without speculation reflects "the limitation of knowledge in the medical community at large," as opposed to a limitation of the individual examiner. 3. Readjudicate the claims. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Wang, Associate 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.