Citation Nr: 21024166 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 10-00 225A DATE: April 22, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a bilateral hearing loss disability for the period from July 17, 2008 to March 21, 2018 is remanded. Entitlement to a compensable rating for left hip enthesopathy, limitation of extension of the thigh for the period prior to September 19, 2012, and in excess of 10 percent thereafter is remanded. Entitlement to a compensable rating for right hip enthesopathy, limitation of extension of the thigh for the period prior to September 19, 2012, and in excess of 10 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1975 to January 1996.. This matter came before the Board of Veterans Appeals (Board) on appeal from December 2008, December 2013 and April 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). An August 2017 Board decision remanded the appeal to provide the Veteran with a Video Conference Hearing and the Veteran testified before the undersigned Veteran’s Law Judge during an October 2017 hearing. The transcript of the hearing is of record. A January 2018 Board decision reopened the issue of service connection for a low back disability, dismissed as withdrawn at the hearing the issues of service connection left carpal tunnel syndrome and increased ratings for degenerative joint disease of the right ankle, right knee and left knee, left and right knee Baker’s cysts, PTSD and plantar fasciitis, and denied an earlier effective date for allergic rhinitis. The decision remanded the issues of increased ratings for the bilateral hip and bilateral hearing loss disabilities and service connection for low back strain for further development. A July 2019 rating decision increased the rating for bilateral hearing loss from 10 to 50 percent effective March 21, 2018. The decision also granted an earlier effective date for service connection for enthesopathy of the right and left hips, limitation of extension of the thigh due to a clear and unmistakable error, assigning a 0 percent rating for the period from November 17, 2009 to September 19, 2012and a 10 percent rating thereafter. Because higher ratings for these disabilities are assignable during the relevant period and the Veteran is presumed to seek the maximum available benefit, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that the issue of service connection for a low back disability is no longer part of the current Legacy system appeal as the Veteran elected the Appeals Modernization Act (AMA) system for that issue. After the issuance of the January 2018 Board decision and the July 2019 Supplemental Statement of the Case, the Veteran filed an October 2019 VA Form 10182 Decision Review Request regarding his low back disability. This was accepted as a request to opt in-to the AMA system and the Legacy system appeal regarding the low back disability was withdrawn. A June 2020 AMA Board decision then remanded the issue for further development, and a September 2020 rating decision granted service connection. The issue is therefore not part of the current Legacy system appeal. A September 2020 letter offered the Veteran an opportunity for a virtual hearing with a Veteran’s Law Judge. The Veteran elected a virtual hearing in October 2020 and testified before the undersigned Veteran’s Law Judge regarding the issues of increased ratings for his bilateral hearing loss and right and left hip disabilities during a November 2020 hearing. The transcript of the hearing is of record. 1. Entitlement to a rating in excess of 10 percent for a bilateral hearing loss disability for the period from July 17, 2008 to March 21, 2018 Additional development is required regarding audiometric testing conducted by the Veteran’s VA providers. At the November 2020 Board hearing, the Veteran reported that he had visited his VA provider multiple times during the period on appeal to adjust his hearing aids and that they conducted audiometric testing. For rating purposes, an examination of hearing impairment must include a controlled speech discrimination test using the Maryland CNC word list and a puretone audiometric test. 38 C.F.R. § 4.85. July 2016 VA treatment records show that audiometric testing was performed, including puretone threshold and speech discrimination testing. However, while the provider noted that puretone thresholds were significantly worsened since the July 2013 VA examination, the record does not contain a copy of the audiogram or complete puretone threshold results. In addition, while the provider noted that word recognition was poor and significantly decreased since the July 2013 VA examination, she did not indicate which word list was used in testing. The Board is therefore unable to determine whether the Maryland CNC word list was used. Remand is therefore required to obtain the complete results of the July 2016 VA audiometric testing and to clarify whether the Maryland CNC word list was used during speech discrimination testing. 2. Entitlement to a compensable rating for left hip enthesopathy, limitation of extension of the thigh for the period prior to September 19, 2012, and in excess of 10 percent thereafter is remanded. 3. Entitlement to a compensable rating for right hip enthesopathy, limitation of extension of the thigh for the period prior to September 19, 2012, and in excess of 10 percent thereafter is remanded. At the November 2020 Board hearing, the Veteran reported that he had increased pain and decreased range of motion in his bilateral hips since his last VA examination in September 2016. As the evidence of record suggests his service-connected disability has increased in severity since the most recent VA examination in 2012, the Board finds that the Veteran should be afforded a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Obtain the audiogram referenced in the July 29, 2016 VA treatment records and associate it with the claim file. If not clearly noted in the record, please take steps to clarify whether the Maryland CNC test was used in speech discrimination testing. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his right and left hip disability. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all right and left hip pathology found to be present. The examiner should conduct range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. 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 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 the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on next page)   3. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold 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.