Citation Nr: 21010446 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-25 071 DATE: February 24, 2021 REMANDED Entitlement to a rating greater than 10 percent for mild arthritis, left hip, rated under Diagnostic Code 5010, is remanded. From March 23, 2015, entitlement to a rating greater than 0 percent for mild arthritis, left hip, rated under Diagnostic Code 5251, is remanded. From March 25, 2015, entitlement, to a rating greater than 0 percent for mild arthritis, left hip, rated under Diagnostic Code 5252, is remanded. Entitlement to a rating greater than 10 percent for mild arthritis, right hip, rated under Diagnostic Code 5010, is remanded. From March 23, 2015, entitlement to a rating greater than 0 percent for mild arthritis, right hip, rated under Diagnostic Code 5251, is remanded. From September 18, 2020, entitlement to a rating greater than 0 percent for mild arthritis, right hip, rated under Diagnostic Code 5253, is remanded. Entitlement to a rating greater than 20 percent for residual instability, left knee, status post meniscectomy, is remanded. Entitlement to a rating greater than 20 percent for residual arthritis and limitation of motion, left knee, status post meniscectomy, is remanded. Entitlement to a rating greater than 10 percent for degenerative arthritis, right knee, is remanded. REFERRED The Agency of Original Jurisdiction (AOJ) service connected, as relevant here, "mild arthritis, right hip with impairment of the thigh" in September 2020. It rated the disability as 0 percent disabling, effective September 18, 2020. The AOJ stated this in the rating decision section titled "Decision," and it is reflected in the code sheet accompanying the rating decision. However, in the body of the decision, the AOJ stated "a noncompensable evaluation is assigned from March 23, 2015, the date of the examination conducted by Denver VA Medical Center." Given these two effective dates, the AOJ needs to reconcile which date – March 23, 2015 or September 18, 2020 – is the proper effective date for the grant of service connection for this disability. In the same September 2020 rating decision, the AOJ also service connected “mild arthritis, left hip limitation of flexion” with a 0 percent disability rating, effective March 25, 2015. The AOJ stated this in the rating decision section titled “Decision,” and it is reflected in the code sheet accompanying the rating decision. However, in the body of the decision, the AOJ stated “a noncompensable evaluation is assigned from March 23, 2015, the date of the examination conducted by Denver VA Medical Center.” (emphasis added) Given these two effective dates, the AOJ needs to reconcile which date – March 23, 2020 or March 25, 2020 – is the proper effective date for the grant of service connection for this disability. REASONS FOR REMAND The Veteran had active service from August 1973 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). For clarity, the Veteran filed a claim for total disability based upon individual unemployability (TDIU) in August 2011. The AOJ processed this as an increased rating claim for the Veteran's bilateral knee and hip disabilities, and it resulted in the March 2012 rating decision rating decision on appeal. The Board considered this appeal in February 2019. It remanded six issues (two left knee disabilities, a right knee disability, a right hip disability, a left hip disability, and TDIU) for additional development. Two developments occurred as the appeal was before the AOJ. First, the AOJ service connected four hip disabilities in September 2020. These disabilities are inextricably intertwined with the two previously service-connected hip disabilities because all six are based on range of motion. By extension, the Board cannot properly rate the severity of the Veteran's hip disabilities under Diagnostic Code 5010 without expressly impacting Diagnostic Codes 5251, 5252, and 5253. Therefore, the Board finds the six hip disabilities are on appeal even though the Veteran has not appealed the September 2020 rating decision. Second, the Veteran elected to opt the TDIU issue into the modernized appeal system in November 2020. The AOJ recognized this in a November 19, 2020 letter. Therefore, the TDIU is no longer in this legacy appeal stream, and the Board will not consider it. Remand is warranted for two reasons. First, the Board remanded this appeal in February 2019 because it found that the Veteran's March 2015 VA knee and hip examinations did not comply with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, it ordered the AOJ to reexamine the Veteran. The AOJ had the Veteran examined in August 2020. The examiner reported the Veteran did not report flareups for either his knees or hips. However, in the hip examination report, the examiner noted: Details of onset: The veteran reports onset of bilateral hip pain about 1 1/2 years after his total left knee replacement. He attributes the onset of pain to having an altered gait and the arthritis as spreading. No injury has occurred. The hip pain has slowly progressed over time. He reports that certain movements trigger sharp stabbing pain in the hips and there is aching pain and stiffness ‘2 or 3 times per month.’ He has many pain free days given his is largely slow and deliberate in his movements.” The excerpt above confuses the Board. Medical dictionaries define a flareup as “a sudden appearance or worsening of the symptoms of a disease or condition.” As such, it appears that “certain movements trigger[ing] sharp stabbing pain” are the definition of a flareup. The Board therefore questions if the examiner defined a flareup so the Veteran understood what it encompassed. Accordingly, the Board will find that the Veteran has experienced flareups during the pendency of the appeal. However, remand is warranted to determine to what extent, if any, those flareups limited the Veteran's range of motion for his knees and hips. Second, the Veteran fell on November 26, 2019. He sought treatment, according to a December 27, 2019 VA treatment record in the CAPRI file uploaded July 2, 2020, in the emergency room at "UC Health." To assist his recovery from the fall, VA treated him with physical therapy (PT) over several months in early 2020, as documented in the same CAPRI file. This PT included treatment and exercises that involved his hips and knees. The claims file does not contain the emergency room records, to include any diagnostic tests conducted, so remand is warranted to attempt to obtain them. The matters are REMANDED for the following action: 1. Attempt to obtain the Veteran's treatment records from UC Health as it relates to his November 26, 2019 fall and resulting emergency room visit. 2. Schedule the Veteran for a VA examination to determine the nature and severity of his bilateral KNEE disabilities. To comply with Sharp v. Shulkin, 29 Vet. App. 26, (2017), the examiner is asked to describe whether pain, weakness, fatigue, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain or no limitation of function, note these in the report. The examiner should address if there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. In addition to the customary examination and Sharp instructions, the examiner must also address the following: a) For the Sharp element of the examination, the examiner is advised that the Board finds the Veteran has experienced flareups from 2011 to present. The examiner MUST accept this finding. b) Therefore, the examiner MUST attempt to estimate the loss in range of motion, if any, for the bilateral knee disabilities from 2011 to present. The Board recognizes that this is retrospective in nature, but that is what is required to adequately rate the Veteran's disabilities. c) In opining, base your estimate on information procured from relevant sources, including the lay statements the Veteran provides after he is asked to describe functional limitation. d) If you cannot opine without resort to speculation, state whether that is because of a lack of knowledge among the medical community at large OR because you, and you alone, have insufficient knowledge to so opine. 3. Schedule the Veteran for a VA examination to determine the nature and severity of his bilateral HIP disabilities. To comply with Sharp v. Shulkin, 29 Vet. App. 26, (2017), the examiner is asked to describe whether pain, weakness, fatigue, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain or no limitation of function, note these in the report. The examiner should address if there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. In addition to the customary examination and Sharp instructions, the examiner must also address the following: e) For the Sharp element of the examination, the examiner is advised that the Board finds the Veteran has experienced flareups from 2011 to present. The examiner MUST accept this finding, and the examiner has no discretion in disregarding it. f) Therefore, the examiner MUST attempt to estimate the loss in range of motion, if any, for the bilateral hip disabilities from 2011 to present. The Board recognizes that this is retrospective in nature, but that is what is required to adequately rate the Veteran's disabilities. g) In opining, base your estimate on information procured from relevant sources, including the lay statements the Veteran provides after he is asked to describe functional limitation. If you cannot opine without resort to speculation, state whether that is because of a lack of knowledge among the medical community at large OR because you, and you alone, have insufficient knowledge to so opine. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.