Citation Nr: 21026815 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 18-18 043 DATE: May 4, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the right hip (right hip condition), limited extension, is remanded. Entitlement to an initial compensable rating for right hip condition, limited flexion, is remanded. Entitlement to an initial compensable rating for a right hip condition, limited abduction and rotation, is remanded. Entitlement to an initial rating in excess of 10 percent for right knee arthritis (right knee condition) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from November 1965 to August 1967. In December 2019, the Board of Veterans' Appeals (Board) remanded the above claims for further development. Specifically, the Board instructed the regional office (RO) to schedule the Veteran for examinations pertaining to his claims. The Board notes that an October 2020 VA examiner stated that the Veteran had 60 years of abnormal gait due to his service-connected bilateral hallux valgus that has affected both lower extremities, knees and hips. The Veteran is only service connected for right hip and right knee conditions. As such, the Board encourages the Veteran to file a claim for his left hip and left knee conditions as well. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to an initial rating in excess of 10 percent for a right hip condition, limited extension, is remanded. 2. Entitlement to an initial compensable rating for right hip condition, limited flexion, is remanded. 3. Entitlement to an initial compensable rating for a right hip condition, limited abduction and rotation, is remanded. The Board finds that a new examination is warranted for the Veteran's claims. The Veteran contends that he is entitled to increased ratings. The Veteran underwent a VA examination in February 2020. The Veteran reported experiencing flare-ups during cold weather and rain. The examiner noted that the examination was not performed during a flare-up and only provided that range of motion (ROM) limitation would likely increase to an unknown degree. However, the Board finds that the examination does not substantially comply with the Board's December 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). In this regard, the February 2020 examiner failed to describe the frequency, duration, characteristics, and severity of functional loss during the Veteran's reported flare-ups, as well as to provide additional functional loss in terms of additional degrees of limited motion. Accordingly, a remand is necessary to afford the Veteran a new examination to ascertain the current severity of his right hip condition. 4. Entitlement to an initial rating in excess of 10 percent for a right knee condition is remanded. The Board finds that a new examination is warranted for the Veteran's claim. The Veteran contends that he is entitled to a higher rating for his right knee condition. In February 2020, the Veteran appeared for a VA examination. The examiner noted that the examination was not performed during a flare-up and only provided that ROM limitation would likely increase to an unknown degree. However, the February 2020 examiner did not describe the frequency, duration, characteristics, and severity of functional loss during the Veteran's reported flare-ups or opine regarding additional functional loss in terms of additional degrees of limited motion, as directed by the December 2019 Board remand directives. See Stegall, 11 Vet. App. at 271. Further, the Veteran was afforded another knee VA examination in October 2020, in which the examiner noted that stability testing was performed and that there was no joint instability. However, she also noted that the Veteran had progressive pain and buckling in his bilateral knees. These inaccurate and contradictory findings underscore the need for a new examination that adequately addresses the severity of the Veteran's right knee condition. See Barr, 21 Vet. App. at 311 (holding that once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). Accordingly, a new examination is required on remand. While this case is in remand status, all outstanding VA treatment records must also be obtained and associated with the evidence of record before the Board. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran and his representative have the right to submit additional evidence while these matters are in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination to determine the severity of his right hip condition. The examiner should report all signs and symptoms necessary for evaluation of the Veteran's right hip condition under the rating criteria. In particular, the examiner should provide range of motion test results (in degrees) for the Veteran's right hip condition on active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the right hip is used repeatedly over a period of time. The examiner should specifically indicate whether the Veteran experiences any limitation of motion that is attributable to pain and at what point during the range of motion. 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 is asked to describe whether pain significantly limits functional ability during flare-ups and, if so, the examiner must estimate the range of motion during flares. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran an opportunity for an examination. If an in-person examination cannot be provided, consider other appropriate alternatives, such as a telehealth examination. The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 3. Schedule the Veteran for an examination to determine the severity of his right knee condition. The examiner should report all signs and symptoms necessary for evaluation of the Veteran's right knee condition under the rating criteria. In particular, the examiner should provide range of motion test results (in degrees) for the Veteran's right knee condition on active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the right knee is used repeatedly over time. The examiner should specifically indicate whether the Veteran experiences any limitation of motion that is attributable to pain and at what point during the range of motion. 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 is asked to describe whether pain significantly limits functional ability during flare-ups and, if so, the examiner must estimate the range of motion during flares. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran an opportunity for an examination. If an in-person examination cannot be provided, consider other appropriate alternatives, such as a telehealth examination. (CONTINUED ON NEXT PAGE) The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. J. O'CONNELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, 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.