Citation Nr: 21076105 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 10-46 665 DATE: December 22, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for tendinitis and bursitis of the left hip (left hip disability) is remanded. Entitlement to an initial rating in excess of 10 percent for musculoligamentous strain of the left knee (left knee disability) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1966 to January 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In July 2015, the Board remanded the Veteran's claims. The Veteran's claims were remanded again in a June 2020 decision to afford the Veteran the opportunity to have an examination to assess the current severity of his disabilities, as the Veteran asserted that at that time his left hip and knee symptoms continuously worsened. See 38C.F.R. §§3.159(c), 3.326, 3.327; Snuffer v. Gober, 10 Vet. App.400, 403(1997). Unfortunately, the Board finds that the evidence of record is insufficient to decide the claim on appeal and adequate medical opinions are necessary before a decision can be reached on the merits of this matter. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Accordingly, remand is required to obtain an adequate medical opinion. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107 (a)(2) and 38 C.F.R. § 20.902(c). 1. Entitlement to an initial rating in excess of 10 percent for tendinitis and bursitis of the left hip (left hip disability) is remanded. 2. Entitlement to an initial rating in excess of 10 percent for musculoligamentous strain of the left knee (left knee disability) is remanded. The Veteran through his representative asserts that the evidence as a whole demonstrates that the Veteran's disabilities more closely approximate the criteria for a 20 percent evaluation. Additionally, the Veteran through his representative contends that the VA did not take into full consideration the Veteran's current medical and physical condition and instead, the examiner stated that the evaluation could not be performed due to the Veteran's wheelchair bound ability. Moreover, the Veteran contends the rating specialist must interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the present disability. See Appellate Brief Received October 2021. The Veteran was most recently afforded a VA examination to assess both his left hip and left knee disabilities in August 2021. In both examination reports, the examiner noted that the Veteran's range of motion for each respective disability could not be tested because the Veteran is wheelchair bound due to the progression of a neurological condition, multiple sclerosis which currently affects the Veteran's ability to perform any active movements or weight bearing activity that requires use of the lower extremities. The August 2021 examiner explained that performing any passive motion exam would risk harm to the Veteran as he is unable to maintain and adjust his position in the wheelchair without substantial assistance. With respect to the Veteran's hip, the examiner stated that the severity is mild and he experiences flare ups several times a day and sharp pain deep in the bilateral hip joint that may last several minutes to several hours. The examiner noted that as an estimate, flare up pain would impede the Veteran's ability to bend at the hips, stoop, or perform repetition of movements involving the hip, however, no estimated range of motion measurements were provided. With respect to the Veteran's left knee, the examiner stated that the Veteran experienced flare ups several times a day characteristic of sharp pain that lingers for several minutes. Additionally, the examiner stated that the Veteran's functional impairments due to the left knee disability alone would include prolonged standing, walking, lifting, and any bending at the knees. However, no estimated range of motion measurements were provided for the left knee disability. In Sharp v. Shulkin, the Court stated that a VA examiner must "portray" functional loss in terms of additional range-of-motion loss due to pain on use or during flare-ups. 29 Vet. App. 26, 32 (2017). The Court stated that "[b]ecause the VA examiner did not . . . estimate the veteran's functional loss due to flares based on all the evidence of record-including the veteran's lay information-or explain why she could not do so, the . . . examination was inadequate." Id. at 35. In Correia v. McDonald, 28 Vet. App. 158, 169 (2016), the Court held that the final sentence of §4.59 creates a requirement that the examination should record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and nonweight-bearing." The Board finds that the August 2021 medical opinions are inadequate and unfortunately remand is necessary. Based on the deficiencies of the August 2021 examinations, additional examinations are warranted. The disability ratings assigned for both the left hip and left knee require range of motion measurements in order to assess which level of impairment the Veteran experiences and which rating is most appropriate. Here, the August 2021 examiner indicated that range of motion measurements for the left hip and left knee could not be tested because the Veteran is wheelchair bound; however, the examiner made no attempt to provide estimated range of motion measurements based on the facts of the record and the Veteran's current physical condition. Range of motion measurements are pertinent for assessing the severity of the Veteran's disability. Because VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions, remand is required. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board finds that to the extent possible, the examiner must provide estimated range of motion measurements based on their expertise, the medical evidence of record, the Veteran's statements, and the Veteran's physical condition before a decision on the merits can be reached in this case. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. Schedule the Veteran for an examination of the current severity of his left hip disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (a.) Provide an estimate of the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing based on medical expertise, the medical evidence of record, the Veteran's statements, and the Veteran's physical condition. (b.) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. (c.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's left hip disability alone and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. (d.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, then 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. If it is not possible, the examiner must clearly articulate the reason why. 3. Schedule the Veteran for an examination of the current severity of his left knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (a.) Provide an estimate of the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing based on medical expertise, the medical evidence of record, the Veteran's statements, and the Veteran's physical condition. (b.) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. (c.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's left knee disability alone and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. (d.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, then 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. If it is not possible, the examiner must clearly articulate the reason why. (e.) Clearly indicate whether there is (i) subluxation or instability of the knee joint based on objective testing, (ii) whether the use of an assistive devices (brace, cane, etc.) is due to left knee joint laxity or instability. Consider any subjective report of knee buckling and/or giving way. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dorsey-Kwansa, 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.