Citation Nr: 21015613 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 19-18 672A DATE: March 17, 2021 REMANDED Entitlement to an initial disability rating in excess of 30 percent for Non-Hodgkin's lymphoma is remanded. Entitlement to an initial disability rating in excess of 30 percent for bronchiolitis is remanded. Entitlement to an initial disability rating in excess of 10 percent for right hip avascular necrosis (limitation of extension), prior to November 23, 2020, and to a compensable disability rating thereafter is remanded. Entitlement to an initial compensable disability rating for right hip avascular necrosis (limitation of flexion) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities is remanded. INTRODUCTION The Veteran served on active duty from June 1962 to June 1966. When this case was previously before the Board in December 2019, the above-noted issues were remanded for additional development. The case has since been returned for further appellate review. REASONS FOR REMAND While further delay of this appeal is quite regrettable, the Board finds additional development is yet again required before the Veteran’s claims are decided. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the course of the December 2019 remand, the Board instructed to RO to obtain VA examinations, and ensure all information required for rating purposes was provided. The Board observes the Veteran’s bronchiolitis has been evaluated as analogous to asthma under 38 C.F.R. § 4.97, Diagnostic Code 6602. Under this Diagnostic Code evaluations may be assigned on the basis of attacks of respiratory failure or required visits to a physician for care of exacerbations. The Veteran underwent a VA respiratory conditions examination in January 2020; however, the examiner unfortunately failed to address these two critical evaluative criteria. Further, in a recent decision, Correia v. McDonald, No. 13-3238, 28 Vet. App. 158 (2016), the Court determined that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Veteran most recently underwent a VA hip examination in November 2020. Though the examiner noted evidence of pain with passive and non-weight bearing, she failed to provide Correia compliant range of motion testing of the Veteran’s right hip disability. Based on the foregoing insufficiencies, a remand is required in order to obtain adequate examinations. Finally, the Board notes that during the December 2019 remand the RO was instructed to obtain a comprehensive VA medical opinion addressing the functional impact of the Veteran’s disabilities both alone, as well as in concert. The RO was specifically asked to obtain an opinion which addressed such factors as walking, sitting, lifting and standing limitations, impaired ability to interact socially, as well as problems with memory and concentration. The RO subsequently obtained separate opinions addressing the Veteran’s individual disabilities in isolation but failed to obtain an assessment of the Veteran’s disabilities in concert as directed. Further, although the VA hip examiner observed the Veteran experiences difficulty with sitting, walking, and standing, she failed to provide any meaningful elaboration such as how long the Veteran can stand or how far he can walk given his service-connected limitations. Based on the above-noted insufficiencies, the Board finds a remand is again necessary in order to achieve substantial compliance with the Board’s prior remand instructions. Accordingly, this case is REMANDED for the following actions: Afford the Veteran a VA examination by an examiner with sufficient expertise, who has not previously examined this Veteran, to fully assess the severity of the Veteran’s service-connected Non-Hodgkin’s lymphoma residuals, to include his service-connected bronchiolitis and right hip necrosis. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. The examiner should also state whether the Veteran has experienced any attacks of respiratory failure or required visits to a physician for care of exacerbations of his bronchiolitis at any time throughout the period under appeal. If the examiner is unable to conduct any required testing or concludes any required testing is not necessary, he or she should clearly explain why that is so. Following the above-noted examinations, the examiner should provide concrete examples of functional impairments caused by the Veteran’s service-connected Non-Hodgkin’s lymphoma residuals, to include the medications taken for the disabilities. The types of impairments the examiner should address include, but are not limited to, walking, sitting, lifting and standing limitations, impaired ability to interact socially, as well as problems with memory and concentration. If possible, the examiner should expound on how long the Veteran can sit or stand, how far he can walk, and how much he is able to lift. The examiner must discuss and consider the Veteran’s competent lay statements. (Continued on the next page)   In addition, the examiner should comment on whether there is a 50 percent or better probability that the Veteran’s service-connected disabilities, either alone or in concert, are sufficiently disabling to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.