Citation Nr: 21015387 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 13-16 422 DATE: March 17, 2021 ISSUES 1. Entitlement to a compensable disability rating for limited extension due to a right ischial ramus stress fracture (hereinafter “right hip disability”) prior to July 17, 2013, and in excess of a 10 percent rating thereafter. 2. Entitlement to a disability rating in excess of 10 percent for limited flexion due to a right hip disability prior to July 17, 2013, and a compensable rating thereafter. 3. Entitlement to a disability rating in excess of 10 percent for chondromalacia of the right knee. 4. Entitlement to a disability rating in excess of 10 percent for tendonitis of the right ankle. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REMANDED 1. Entitlement to a compensable disability rating for the right hip disability prior to July 17, 2013, and in excess of a 10 percent rating thereafter is remanded. 2. Entitlement to a disability rating in excess of 10 percent for limited flexion due to a right hip disability prior to July 17, 2013, and a compensable rating thereafter is remanded. 3. Entitlement to a disability rating in excess of 10 percent for chondromalacia of the right knee is remanded. 4. Entitlement to a disability rating in excess of 10 percent for tendonitis of the right ankle is remanded. 5. Entitlement to a TDIU is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1985 to November 1985. These matters arise before the Board of Veterans’ Appeals (Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2015 the Board denied the issues listed on the title page of this decision; without consideration of entitlement to TDIU. The Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court). In February 2016 the Court granted a Joint Motion for Partial Remand (Joint Remand) by the parties to vacate and remand the Board’s April 2015 decision for further development. The appeal for a TDIU has been raised as a component of the increased rating claim on appeal, according to the Joint Remand and it is, therefore, in appellate status before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in July 2017; a copy of the transcript is of record. When this case was most recently before the Board in August 2020, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. In response to the Board’s remand, the Veteran was afforded a VA-contracted examinations by the same examiner in October 2020 in which she reported taking Ibuprofen 800 milligram one a day and BC powder as needed. In a February 2021 written brief presentation, it was argued that the Veteran’s medications for her ailments masked the true level of pain; specifically, it was argued that without them she would more likely than not be unable to function on a day-to-day basis. It was stated that the Veteran felt very strongly that by taking the medication to allow her to attend the examinations, she was able to show more range of motion than she would be able to if she was unmedicated. The Veteran’s representative requested a remand to obtain further medical opinions to establish the severity of her symptoms. As the Veteran has questioned the impact of ameliorative medication with regard to the accuracy of examination findings, the Board finds that this should be addressed on remand as outlined below. Further development and adjudication of the Veteran’s claims may provide evidence in support of her claim of entitlement to a TDIU. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. To this point, the Veteran’s representative requested another opportunity to submit a Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) in the February 2021 written brief presentation. As such, the Veteran should be afforded such opportunity on remand. The matters are REMANDED for the following action: 1. Send the Veteran a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and ask her to complete and return the form. 2. Provide access to the electronic claims file to the October 2020 examiner, or appropriate substitute if this examiner is not available, to provide an addendum opinion. The electronic claims file must be made available to and reviewed by the examiner. An examination should be performed if deemed necessary by the examiner providing the requested opinion. The examiner should address the impact of ameliorative medication on the right hip, right knee, and right ankle. Specifically, the examiner should attempt to estimate what the Veteran’s level of functional loss would be, in terms of degrees of limitation of motion, instability, etc., to include as due to flare-ups and repeated use over time, if no medication was used. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, to include lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner’s conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. 3. Upon completion of the above, review the opinion to ensure that it addresses the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal. If any benefit sought on appeal remains denied, the RO must furnish the Veteran and her representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.