Citation Nr: 21015620 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-14 238 DATE: March 17, 2021 REMANDED Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating in excess of 10 percent for a right hip disability is remanded. Entitlement to a temporary total evaluation based on treatment for a service-connected disability necessitating a period of convalescence is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from March 1998 to June 2004 and from June 2007 to April 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of October 2015 and October 2018 rating decisions issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a June 2020 video hearing, a transcript of which has been attached to the record. 1. Entitlement to a rating in excess of 70 percent for PTSD is remanded. The Veteran was granted an increased rating of 70 percent for his service-connected PTSD by an October 2015 AOJ rating decision. He appealed, asserting entitlement to a 100 percent rating. As noted above, the Veteran and his wife appeared before the undersigned Veterans Law Judge at a June 2020 hearing and attested to worsening PTSD symptoms. The Veteran described experiencing hallucinations and his wife indicated that he no longer drove or satisfactorily completed some daily activities due to flashbacks and memory lapses. The Veteran’s wife also indicated that the Veteran was unable to purchase a firearm due to a mental competence determination made by the state of Tennessee. The Board observes that the Veteran’s last VA psychological examination occurred in April 2015. Additionally, recent VA treatment records are limited in scope, making it difficult to properly evaluate whether his condition warrants a 100 percent disability rating. In light of the length of time since his last examination as well as the June 2020 hearing statements indicating a worsening of PTSD symptoms, remand for a new VA examination is necessary. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). 2. Entitlement to a rating in excess of 10 percent for a right hip disability is remanded. The Veteran asserts entitlement to a rating in excess of 10 percent for a service-connected right hip disability, classified as a hip strain. The Board observes that the Veteran was afforded VA hip examinations in July 2017 and October 2018. At both VA examinations, the Veteran reported increased functional loss during flareups and on repetitive use with regard to his right hip, described as increased pain and stiffness with decreased range of motion. While acknowledging these reports, neither VA examiner attempted to estimate the additional loss of function during flareups or after periods of repetitive use, expressing an inability to do so without resort to speculation. Such findings do not comply with the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or repeated use over time will be considered inadequate. Id. Given the inadequacies of the July 2017 and October 2018 VA examinations, the Board has no option but to remand the claim for further development. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). On remand, the examiner should solicit information from the Veteran in an attempt to estimate the additional functional loss on repetitive use and during flareups. 2. Entitlement to a temporary total evaluation based on treatment for a service-connected disability necessitating a period of convalescence is remanded. The Veteran claims entitlement to a temporary total rating under 38 C.F.R. § 4.30 for the period of recuperation following August 2018 right hip replacement surgery. The Board observes that the Veteran has been granted a 100 percent temporary total rating following August 2017 left hip replacement surgery. An October 2018 VA examiner opinion concluded that the Veteran’s right hip surgery was less likely than not a result of his service-connected right hip strain. Conversely, a July 2020 private physician opined that his current diagnosis of right hip osteoarthritis which necessitated the right hip replacement is at least as likely as not due injuries incurred in the military, including his right hip strain. The Board finds both the October 2018 VA and July 2020 private opinions inadequate. The October 2018 VA examiner solely addressed the Veteran’s service-connected right hip strain and failed to discuss whether his right hip osteoarthritis is caused or aggravated by his numerous other service-connected orthopedic disabilities, including: left hip osteoarthritis, lumbar spine degenerative disc disease, bilateral knee patellofemoral syndrome, bilateral ankle sprains and bilateral pes planus. On the other hand, the July 2020 private physician’s opinion failed to include a supporting rationale for the conclusion provided. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“most of the probative value of a medical opinion comes from its reasoning”). Thus, remand is required in order to obtain additional medical opinion. See Barr, 21 Vet. App. at 312. 4. Entitlement to a TDIU is remanded. As a decision on the issues remanded above could significantly impact a decision on the issue of entitlement to a TDIU, the Board finds these issues are inextricably intertwined. Therefore, remand of the claim for a TDIU is required as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Associate with the claims file any outstanding VA and relevant private treatment records. Additionally, contact the Veteran and ask him to submit any records involving competency determinations made during the appeal period. 2. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected PTSD. The examiner is asked to consider the June 2020 hearing testimony describing the Veteran’s inability to purchase a firearm and description of symptoms such as hypervigilance, hallucinations, flashbacks to combat, night terrors and memory lapses; the November 2015 notice of disagreement in which the Veteran reports worsening symptoms and an ongoing VA competency claim; and the July 2015 letter from a VA social worker describing the Veteran’s occupational and social impairment and dependence on his wife. 3. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected right hip disability and in order to obtain an addendum opinion regarding the underlying cause(s) of his right hip replacement. Access to the electronic claims file must be made available to the examiner for review. In accordance with the latest worksheets for rating the hip, the examiner is to provide a detailed review of the Veteran’s pertinent medical history, current complaints and the nature and extent of his disability. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/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. The Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and the examiner should provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares and upon repetitive use. The examiner is then asked to opine: a) Whether the cause of the Veteran’s right hip replacement surgery, identified as osteoarthritis of the right hip, is at least as likely as not (50 percent probability or greater) due to his active service; and b) Whether this disorder was at least as likely as not (50 percent probability or greater) caused or aggravated (a medically discernible increase in frequency, duration and/or severity, even if temporary, above the degree associated with that expected from his baseline right hip osteoarthritis alone) by his numerous service-connected orthopedic disabilities, to include: a right hip strain, left hip osteoarthritis, lumbar spine degenerative disc disease, bilateral knee patellofemoral syndrome, bilateral ankle sprains and bilateral pes planus. A complete rationale must be provided for any opinion(s) offered. The examiner is specifically asked to address the July 2020 private physician’s opinion that the Veteran’s right hip osteoarthritis, and therefore his right hip replacement surgery, is a result of his inservice injuries, to include a right hip strain. 4. Thereafter, readjudicate the claims, including entitlement to a TDIU. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and an appropriate period of time to respond before returning the case to the Board. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.