Citation Nr: 21026270 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 11-17 888A DATE: April 30, 2021 REMANDED Entitlement to a rating in excess of 20 percent from July 21, 2009 for a low back disability is remanded. Entitlement to an effective date earlier than July 16, 2010 for the award of a total disability rating due to individual unemployability (TDIU) is remanded. Entitlement to an effective date earlier than July 16, 2010 for the award of Chapter 35 Dependent's Educational Assistance (DEA) is remanded. Entitlement to service connection for a right hip disability, to include as due to other service-connected disabilities, is remanded. Entitlement to service connection for a left hip disability, to include as due to other service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1975 to April 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2009 and January 2012 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018 and September 2020, the Board remanded these matters for further development. These matters have been advanced on the docket pursuant to 38 C.F.R. § 20.902. The Board has recharacterized the Veteran’s service connection claims, as reflected on the title page, to include consideration of all the related disorders reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). 1. Entitlement to a rating in excess of 20 percent from July 21, 2009 for a low back disability is remanded. The Veteran asserts that he is entitled to a rating in excess of 20 percent for his low back disability. See July 2009 claim, July 2010 Notice of Disagreement (NOD), November 2016 Appellate Brief. Throughout the appeal period, the Veteran submitted to VA examinations in September 2009 and in December 2018. In April 2018, the Board ordered a new back examination be completed based upon the Veteran’s assertion that his back disability had worsened coupled with the extended passage of time. In December 2018, a VA examiner confirmed the Veteran’s diagnosis of intervertebral disc syndrome and degenerative arthritis of the spine. The Veteran reported to the examiner that he experiences flare-ups three to four times per week with pain increasing to 10 out of a possible 10 during those times. When completing the section of the examination dedicated to ascertaining functional impairment during a flare-up, the December 2018 VA examiner concluded that he was unable to predict the effect of a flare-up without resorting to mere speculation. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court addressed a similar issue, finding an orthopedic examination inadequate where the examiner declined to provide an estimate of the degree of additional loss of motion due to flare-ups because such would require resort to speculation. Id. at 29, 36. Significantly, the Court cited VA Clinician’s Guide, which instructs orthopedic examiners to inquire whether there are periods of flare and, if the answer is yes, to state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, per [the] veteran, to what extent, if any, they affect functional impairment. Sharp, 29 Vet. App. at 32 (citing VA Clinician’s Guide, chapter 11). Accordingly, the December 2018 VA examiner’s report is inadequate for rating purposes. A new examination must be obtained on remand. 2. Entitlement to an effective date earlier than July 16, 2010 for the award of a total disability rating due to individual unemployability (TDIU) is remanded. 3. Entitlement to an effective date earlier than July 16, 2010 for the award of Chapter 35 Dependent's Educational Assistance (DEA) is remanded. The Veteran asserts that he is entitled to a grant of TDIU, either schedular or extra-schedular, prior to July 16, 2010. The grant of DEA benefits is inextricably intertwined with any decision regarding TDIU. As the Veteran’s rating for his low back disability may have a direct effect on any decision regarding a TDIU, the Board finds it necessary to remand it is inextricably intertwined with the Veteran’s appeal regarding his low back disability. See Brambley v. Principi, 17 Vet. App. 20 (2003). 4. Entitlement to service connection for a right hip disability, to include as due to other service-connected disabilities, is remanded. 5. Entitlement to service connection for a left hip disability, to include as due to other service-connected disabilities, is remanded. The Veteran asserts that his bilateral hip degenerative arthritis either had its onset during his active duty service or is otherwise related to his active duty service, to include as being due to his low back disability and/or his bilateral knee degenerative arthritis. See July 2010 VA Form 21-4138, April 2012 Appellate Brief, November 2016 Appellate Brief. In this regard, the Veteran submitted to VA examinations in August 2010, December 2018, and February 2021. The December 2010 VA examiner diagnosed bilateral hip degenerative arthritis. In opining that the Veteran’s bilateral hip disability was not due to the Veteran’s service-connected low back disability, the December 2010 VA examiner failed to address whether the Veteran’s bilateral hip arthritis was aggravated by his low back disability. 38 C.F.R. § 3.310. In December 2018, a VA examiner confirmed the diagnosis of bilateral hip degenerative arthritis and opined that the Veteran’s current hip disorder did not have its onset during active duty and was not due to the Veteran’s back or knee disabilities. However, the December 2018 likewise failed to address this aggravation prong of secondary service connection. Id. Similarly, the February 2021 VA examiner diagnosed bilateral hip degenerative arthritis and opined that the Veteran’s hip disability did not have its onset during active duty service and was not caused by the Veteran’s service-connected bilateral knee disabilities, but failed to address the aggravation prong of secondary service connection. Id. Accordingly, the Board finds that the August 2010, December 2018, and February 2021 VA medical opinions are inadequate for rating purposes. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). A new medical opinion must be obtained on remand. Additionally, in an April 11, 2011 VA Form 21-4142, the Veteran reported receiving treatment with a VA medical center since April 1987. The Board notes the RO made one attempt to obtain these records in May 2011, the earliest available records were uploaded in November 2001 and run from November 1991, and that there is no indication that the federal records identified by the Veteran as being relevant to his claim are not available. 38 C.F.R. § 3.159. Accordingly, development must be completed on remand to obtain these records. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records, to include records from April 1987 to the present. See April 11, 2011 VA Form 21-4142. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Then, schedule the Veteran for an examination to assess the current nature and severity of the Veteran's low back disability. The examiner should conduct all indicated tests and studies, to include range of motion studies. (a.) The joints involved should be tested in (1) active motion, (2) passive motion, (3) weight-bearing and (4) nonweight-bearing and (5) if possible, with range of motion 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. (b.) Considering the Veteran’s reported history (flare-ups, pain, reduced range of motion, episodes of falling down, sharp pain on flare-ups, inability to sit or stand for prolonged periods), please also provide an opinion describing the functional impairment of the Veteran’s low back disability during flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion, to include whether any such limitation is the equivalent of ankylosis. (c.) In providing the additional degrees of limitation of motion in parts (a.) through (b.), the examiner is asked to specifically consider any functional impairment due to the low back disability as described by the Veteran. Please also consider the Veteran's statements elicited on examination as to the frequency and severity of symptoms on repeated use over time or during flare-ups, if any. If unable to provide such an opinion or additional degrees of limitation of motion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, per [the] veteran, what extent, if any, repeated use over time and flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation or provide the additional degrees of limitation of motion due to the Veteran's reported functional impairment (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 4. Then obtain an addendum opinion from the February 2021 examiner, if available, addressing the etiology of the Veteran’s bilateral hip disability. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that diagnosed left hip trochanteric bursitis: (a.) had its onset in or is otherwise related to service; (b.) is proximately due to service-connected low back disability; or (c.) has been aggravated (worsened beyond natural progression) by service-connected low back disability; or (d.) is proximately due to service-connected right and/or left knee disabilities; or (e.) has been aggravated (worsened beyond natural progression) by service-connected right and/or left knee disabilities. In addressing these questions, the examiner must discuss the following: (a.) the January 1982 motor vehicle accident in which Veteran jumped from a burning vehicle and was subsequently struck by an oncoming car (see STRs); (b.) the cumulative impact of the Veteran’s duties in the Army during 12 years of active duty; (c.) the June 1987 VA examination documenting a restricted range of motion in the Veteran’s right thigh and antalgic gait; (d.) the April 1989 complaints of right hip trochanteric pain; (e.) the January 1997 diagnosis of right hip degenerative arthritis; (f.) the December 2002 VA treatment recording noting left hip pain; (g.) the April 2003 VA treatment record noting the Veteran has an altered gait due to knee pain; (h.) the November 2019 VA treatment record documenting the Veteran standing and ambulating without pain behaviors and having to be reminded that he brought a walker; and (i.) the August 2010 VA examiner’s note of the Veteran limping to the right. In answering questions (b.) through (e.) please note there is no temporal requirement that the primary condition (low back disability or bilateral knee disability) be service-connected, or even diagnosed, at the time the secondary condition (bilateral hip disability) is incurred, and reliance on this fact will render any opinion inadequate. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for that conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.