Citation Nr: 21007378 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 12-27 028 DATE: February 9, 2021 REMANDED Entitlement to a rating in excess of 20 percent from June 27, 2008 to October 28, 2019 for a left hip disability is remanded. Entitlement to a rating in excess of 30 percent from December 1, 2020 for a left hip disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1995 to December 2004. This matter comes before the Board of Veterans’ Appeals (Board) following August 2015 and July 2017 Board remands. This matter was originally on appeal from a June 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which continued a 20 percent rating for degenerative joint disease of the left hip. In an October 2014 rating decision, the RO reduced the Veteran’s 20 percent rating for degenerative joint disease of the left hip to 10 percent disabling effective August 21, 2013, which the Board restored in a July 2017 decision. In a March 2020 rating decision, the RO increased the Veteran’s rating to 100 percent effective October 29, 2019 in light of the Veteran’s left hip total replacement, and assigned an evaluation of 30 percent from December 1, 2020. The Veteran was provided with a Board hearing before the undersigned Veterans Law Judge (VLJ) in April 2015. A copy of the transcript has been associated with the claims file. 1. Entitlement to a rating in excess of 20 percent from June 27, 2008 to October 28, 2019 for a left hip disability is remanded. 2. Entitlement to a rating in excess of 30 percent from December 1, 2020 for a left hip disability is remanded. Prior to October 29, 2019, the Veteran’s left hip disability was rated under Diagnostic Code 5252. In a December 2005 rating decision, the Veteran was granted service connection for a left hip disability, with an evaluation of 10 percent, effective December 24, 2004. A November 2008 rating decision increased the Veteran’s left hip evaluation to 20 percent, effective June 27, 2008. In an October 2014 rating decision, the RO reduced the Veteran’s left hip disability evaluation to 10 percent, effective August 21, 2013 which the Board restored in a July 2017 decision. A March 2020 rating decision increased the Veteran’s left hip disability evaluation to 100 percent effective October 29, 2019 for left hip total replacement arthroplasty and assigned an evaluation of 30 percent, effective December 1, 2020. In addition, in August 2020 the RO identified a clear and unmistakable error in the evaluation of the Veteran’s left hip disability and restored the Veteran’s evaluation to 20 percent effective August 21, 2013, the date of the prior reduction in light of the Board’s July 2017 decision. A January 2008 VA treatment note indicates the Veteran complained of left hip pain and the examiner noted a diagnosis of chronic degenerative joint disease of the left hip. An October 2008 VA treatment note shows the Veteran reported that his chronic hip pain was resolved at the time. An April 2009 VA examiner noted the Veteran complained of chronic left hip pain, aggravated by prolonged walking. The examiner also noted the Veteran reported prolonged immobility when awaking from sleep that would result in stiffness and pain with weight bearing. An August 2010 VA treatment note shows the Veteran reported pain in the lateral and posterior hip region. The Veteran stated that his pain was constant and is bad after his leg is in a stationary position for some time. The examiner noted that stair climbing increased the Veteran’s pain level, and temperature has an effect on the pain intensity. The Veteran reported experiencing hip pain prior to 2004, but pain intensity increased over the previous two weeks, and he almost fell twice. The examiner noted left hip flexion to 90 degrees with pain, abduction to 35 degrees with pain, internal rotation to 20 degrees with pain (measured in 90 hip flexion), and external rotation to 20 degrees with pain (90 hip flexion). In September 2010 the Veteran reported a long history of hip pain that had become worse in July 2010. Additionally, the Veteran reported no improvement at the time, further stating the pain was significant and he still could not run. Furthermore, the Veteran reported he experienced sharp pain in his hip with walking. In July 2012 the Veteran was afforded a VA examination. The examiner noted the Veteran reported experiencing daily hip pain that is worse in the morning upon awaking, but it does get somewhat better over the course of the day with activity. The Veteran also reported difficulty pushing a lawnmower. The examiner noted the Veteran described sharp pain when going from sitting or lying to standing, or after long episodes of driving. The Veteran reported flare-ups with weather changes. The examiner reported the Veteran’s left hip flexion was limited to 55 degrees, with pain beginning at 30 degrees. Additionally, the examiner noted left hip post-test range of motion was limited to 55 degrees. The examiner noted post-test abduction was not lost beyond 10 degrees, limited such that the Veteran could not cross his legs, or limited such that the Veteran could not toe-out more than 15 degrees. The examiner indicated the Veteran did not exhibit ankylosis of either hip joint. The Veteran was afforded a new VA examination in April 2013. The Veteran reported stiffness in the past year, in addition weakness and muscle cramps. The Veteran described flare-ups that cause sharp burning pain, occurring three times per day leaving him unable to stand or walk for more than 10 minutes. Further, the Veteran reported he cannot run at all and he cannot drive more than 90 minutes. The examiner reported the Veteran’s left hip flexion was limited to 60 degrees, with pain beginning at 60 degrees. The examiner noted post-test abduction was not lost beyond 10 degrees, limited such that the Veteran could not cross his legs, or limited such that the Veteran could not toe-out more than 15 degrees. The examiner indicated the Veteran did not exhibit ankylosis of either hip joint. The examiner noted the Veteran occasionally used crutches. The examiner also noted the Veteran did not experience a loss of function with repetitive use, except as otherwise noted. In addition, the examiner noted loss of function due to flare-ups cannot be determined without resorting to mere speculation. A December 2013 private treatment note shows the Veteran had a limited range of motion in his left hip, with flexion limited to 95 degrees, internal rotation to 0, and external rotation to 30, as well as pain in the groin with range of motion. An August 2014 VA examination shows the Veteran reported he was currently employed at a printing plant doing mostly manual labor and usually on his feet for eight hours per day. In addition, the examiner noted the Veteran is able to perform ADLs and drive, but the Veteran reported he is not able to run. The Veteran reported he can stand for 10 to 15 minutes and is able to walk up to 200 feet. The examiner noted the Veteran ambulates with a cane and reports being able to climb one flight of stairs. Furthermore, the Veteran reported being able to sit for 15 minutes and drive 40 miles. The examiner reported the Veteran’s left hip flexion was limited to 70 degrees, with pain beginning at 50 degrees. The examiner noted post-test abduction was not lost beyond 10 degrees, limited such that the Veteran could not cross his legs, or limited such that the Veteran could not toe-out more than 15 degrees. The examiner indicated the Veteran did not exhibit ankylosis of either hip joint. The examiner noted that there was no loss of function with repetitive use, except as noted. An opinion regarding, when and to what extent, in degrees, further "repetitive use" or reported "flare-ups" could significantly limit functional ability, is not one with literature support. Based on the clinical presentation, examination findings and the Veteran's reports, the examiner stated he could not opine without resorting to mere speculation, a more definite loss of function due to flare-ups or repetitive use over time, except when said flare-up occurs during examination. A July 2015 VA examiner noted the Veteran reported he experiences difficulty walking, has left hip weakness that is severe during winter or certain weather conditions. The Veteran described flare-ups as an increase in pain, weakness, and decreased range of motion, such as difficulty walking. The Veteran stated he experiences functional loss with difficulty walking, decreased range of motion, as well as weakness in his left hip and lower extremity. The examiner reported the Veteran’s range of motion on flexion was limited to 65 degrees, extension to 15 degrees, abduction to 30 degrees, adduction to 25 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees. The Veteran reported difficulty walking on inclines or declines, and difficulty squatting down. The examiner reported the Veteran’s range of motion after repetitive use on flexion was limited to 60 degrees, extension was limited to 15 degrees, abduction was limited to 25 degrees, adduction was limited to 25 degrees, external rotation was limited to 45 degrees, and internal rotation was limited to 40 degrees. The Veteran described daily flare ups of moderate severity, lasting six to twelve hours per day. The examiner reported the Veteran’s did not experience ankylosis. The Veteran reported he ambulates with a cane and has difficulty walking over 50 feet without rest. He also has difficulty standing longer than five minutes without rest due to pain. In an August 2017 private treatment note the examiner reported the Veteran’s left hip flexion was limited to 80 degrees and internal rotation to 15 degrees. An August 2019 VA treatment note shows the Veteran reported he cannot sit for long or extended periods without pain in both his left hip and left knee. The Veteran reported he must hold onto a stable or firm object when standing, and cold temperature aggravates his left hip. A September 2019 private treatment note indicates the Veteran reported hip pain and that he ambulates with use of a cane due to his hip pain. The Veteran underwent surgery for his left hip disability on October 29, 2019 and a March 2020 rating decision increased the Veteran’s left hip disability evaluation to 100 percent effective October 29, 2019 for left hip total replacement arthroplasty until December 1, 2020. As of October 29, 2019, the Veteran’s left hip disability is rated under Diagnostic Code 5054 for hip replacement (prosthesis). The Veteran is currently in receipt of a 30 percent evaluation for residuals of a left hip replacement surgery, effective December 1, 2020, which marks the cessation of the temporary total rating assigned following his right hip replacement surgery on October 29, 2019. The Veteran has not been afforded a VA examination following his left total hip replacement. Thus, the Board finds that the appeal should be remanded for another VA examination to ensure there is sufficient evidence to permit the proper evaluation of the Veteran’s left hip disability. The matters are REMANDED for the following action: 1. Obtain updated VA and private treatment records. 2. Schedule the Veteran for an appropriate VA examination to evaluate the service-connected left total hip replacement. The Veteran’s claims folder must be reviewed by the examiner. (a) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees) per DeLuca. (b) Pursuant to Correia v. McDonald, 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. If the hips cannot be tested on “weight-bearing,” then the examiner must specifically indicate that such testing cannot be done. (c) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)) if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Daley, 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.