Citation Nr: 21013218 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 11-31 446 DATE: March 9, 2021 REMANDED Entitlement to an initial disability rating higher than 10 percent for left hip degenerative joint disease is remanded. Entitlement to an initial compensable disability rating for left hip limitation of extension is remanded. Entitlement to a higher initial disability rating for left hip thigh impairment, rated noncompensable prior to December 21, 2015 and 10 percent disabling from that date, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1974 to August 1975. These matters initially came before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision, in which the agency of original jurisdiction (AOJ) awarded service connection for left hip degenerative joint disease and assigned an initial 10 percent disability rating, from January 4, 2008. The Veteran testified before a Decision Review Officer (DRO) at an August 2011 hearing, and a transcript of the hearing is associated with his claims file. In March 2017 and March 2018, the Board remanded the issue of entitlement to a higher initial rating for left hip degenerative joint disease for further development. In June 2019, the AOJ awarded a separate noncompensable disability rating for left hip limitation of extension, from January 4, 2008. The AOJ also awarded a separate noncompensable disability rating, from January 4, 2008 through December 20, 2015 and a 10 percent disability rating, from December 21, 2015, for left hip thigh impairment. In an August 2019 decision, the Board denied entitlement to higher initial ratings for left hip degenerative joint disease, left hip limitation of extension, and left hip thigh impairment. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court set aside the Board’s August 2019 decision, in part, and remanded to the Board the issues of entitlement to higher initial ratings for left hip degenerative joint disease, left hip limitation of extension, and left hip thigh impairment for readjudication in compliance with directives specified in a September 2020 Joint Motion for Partial Remand (JMPR) filed by counsel for the Veteran and VA. 1. Entitlement to an initial disability rating higher than 10 percent for left hip degenerative joint disease is remanded. 2. Entitlement to an initial compensable disability rating for left hip limitation of extension is remanded. 3. Entitlement to a higher initial disability rating for left hip thigh impairment, rated noncompensable prior to December 21, 2015 and 10 percent disabling since that date, is remanded. In the September 2020 JMPR, the parties agreed that the Board had failed to (1) ensure the duty to assist by obtaining an adequate VA examination in light of DeLuca v. Brown, 8 Vet. App. 202 (1995), Mitchell v. Shinseki, 25 Vet. App. 32 (2011), and Sharp v. Shulkin, 29 Vet. App. 26 (2017) and (2) set forth an adequate statement of reasons and bases that addressed functional loss of the Veteran’s left up during flare ups or repetitive use over time. The parties further agreed that a remand was warranted to obtain a new VA examination and opinion regarding the functional loss of the left hip due to flare ups and repetitive use over time. In light of the concerns expressed in the JMPR, the Board finds that a remand is warranted to afford the Veteran an appropriate examination. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Birmingham Vista electronic records system and are dated to April 2020. Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. Obtain the Veteran’s outstanding VA treatment records from the Birmingham Vista electronic records system for the period since April 2020; and all such relevant records from any other sufficiently identified VA facility. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination to address the severity of his service-connected left hip disability. The examiner is to review the entire claims file, to include a copy of this REMAND. A complete rationale for any opinions must be provided. The examiner should provide a full description of the Veteran’s service-connected left hip disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s left hip active motion, passive motion, and pain with weight-bearing and without weight-bearing. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of the Veteran’s left hip symptoms, and the effect of pain on range of motion. The examiner should also state whether the examination is taking place during a period of flare-up or following repeated use over time. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his left hip 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 it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and following repeated use over time based on the other evidence of record and the Veteran’s statements. A full and complete explanatory rationale must be provided for any opinion offered. If the examiner is unable to provide an opinion on the impact of flare-ups or repeated use over time on the Veteran’s range of motion, he/she should indicate whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, 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.