Citation Nr: 21005902 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-62 640 DATE: February 2, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for residual shell fragment wound in left thigh is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND This matter was previously before the Board of Veterans’ Appeals (Board) in October 2019. At that time, the Board issued decision denying a rating in excess of 20 percent for the Veteran’s service-connected left thigh disability. The Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a joint motion for partial remand (JMPR) and vacated the Board's decision to the extent that it denied entitlement to an initial rating in excess of 20 percent. In the JMPR, the parties agreed that that Board erred in finding that that Department of Veterans’ Affairs (VA) satisfied its duty to assist. This error manifested in two ways: First, the Board did not address the Veteran’s contention that his left thigh disability had worsened since his last October 2016 examination when considering whether the Veteran may be entitled to a higher rating. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that VA was required to provide a contemporaneous medical examination because the Veteran presented evidence of a “material change” in his condition since the prior VA examination). Second, the Board relied in part on an inadequate VA examination to deny a rating in excess of 20 percent. The October 2016 examination failed to conduct range of motion testing for active and passive motion (flexion and extension) and in non-weight-bearing. Such testing necessary for a musculoskeletal system examination compliance with Correia v. McDonald. 28 Vet. App. 158, 169-70 (2016). Due to these two duty to assist errors, VA must obtain a new examination in compliance with Correia to assess the current severity of the Veteran’s left thigh condition. Additionally, the JMPR noted that the Veteran has raised a TDIU claim as part and parcel of his increased rating claim, citing remarks in that October 2016 examination that “flare-ups of left hip/thigh can adversely affect performance of activities of daily living.” Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board accordingly remands for adjudication of the TDIU issue in the first instance. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a new examination to assess the current severity of his service-connected left thigh disability. The selected examiner should conduct all indicated tests and studies, to include range of motion testing. The left thigh should be tested in both active and passive motion and in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page)   2. Develop and adjudicate the issue of TDIU as an element of the Veteran's increased rating for his service-connected left thigh disability pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Narnor, Harriyah 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.