Citation Nr: 21028248 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 19-11 040 DATE: May 10, 2021 REMANDED The claim for an earlier effective date than December 19, 2014 for service connection for right hip strain with limitation of flexion is remanded. The claim for an earlier effective date than December 19, 2014 for service connection for right hip strain, impairment of thigh, is remanded. The claim of entitlement to a higher initial rating for right hip strain with limitation of extension is remanded. The claim of entitlement to a higher initial rating for right hip strain with limitation of flexion is remanded. The claim of entitlement to a higher initial rating for right hip strain, impairment of thigh, is remanded. The claim of entitlement to a higher initial rating for right ankle strain is remanded. The claim of entitlement to a higher initial rating for left ankle strain is remanded. The claim of entitlement service connection for left hip disability, including as secondary to right hip disability, is remanded. The claim of entitlement to service connection for fibromyalgia, including as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1973 to November 1975 and from November 1980 to March 1999. He also was a member of the Army Reserve with periods of active duty for training (ADUTRA) between his to active duty periods. The Department of Veterans Affairs (VA) is grateful for his service. On September 2, 1999, within a year of service separation, the Veteran submitted an initial claim including for service connection for a right hip condition and for bilateral ankle pains. In July 2012, the Board granted service connection for bilateral ankle and right hip disability. Subsequently, in an August 2014 rating decision, the Regional Office (RO) implemented the Board's decision and in pertinent part, granted service connection for right ankle strain and left ankle strain and assigned a 10 percent initial evaluation for each effective September 19, 2000; and granted service connection for right hip pain/strain, limitation of extension and assigned a 10 percent initial evaluation effective September 19, 2000. In November 2014, the Veteran submitted a disagreement with these ratings. By an October 2015 decision, the RO in pertinent part, granted service connection for right hip strain with limitation of flexion, with a zero percent initial rating effective December 19, 2014; granted service connection for right hip strain, impairment of thigh, with a zero percent initial rating effective December 19, 2014; continued a 10 percent rating for right ankle disability; continued a 10 percent rating left ankle disability; and continued a 10 percent rating for right hip disability with limitation of extension. The RO also then denied service connection for fibromyalgia and a left hip condition. The present appeal arises from the Veteran's disagreement with the October 2015 RO decision. Based on the Veteran's continued pursuit of his claims, the appealed claims for higher initial ratings for disabilities of his ankles and his right hip and thigh continue as initial rating claims. 1. 2. Claims for earlier effective dates than December 19, 2014 for service connection for right hip strain, limitation of flexion and right hip strain, impairment of thigh. The claims for earlier effective dates for service connection for right hip strain, limitation of flexion and right hip strain, impairment of thigh, are based on the pending claim for higher initial rating for right hip strain, limitation of extension for which service connection has been established effective from September 19, 2000. The grants of service connection for right hip strain, limitation of flexion and right hip disability, impairment of thigh, were in the course of the claim for a higher initial rating, based on evidence thereby obtained, and originating with the original claim for service connection for right hip disability. Except as otherwise provided, the effective date for an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Here, the date of receipt of claim was September 2, 1999, and the effective date for service connection may ultimately be determined by the earliest dates when right hip disability with limitation of flexion, and right hip disability, impairment of thigh, were present based on evidence presented. Because the Board here remands for additional development of the initial rating claims and because the Veteran may yet produce evidence, inclusive of statements attesting to the presence of right hip disability with limitation of flexion and right hip disability, impairment of thigh, prior to December 19, 2014. Thus, these claims for earlier effective dates are inextricably intertwined with the claims for higher initial ratings the subject of remand, as discussed below. Harris v. Derwinski, 1 Vet. App. 180 (1991). 3. 5. Claims for higher initial ratings for right hip strain with limitation of extension, right hip strain with limitation of flexion, and right hip strain, impairment of thigh. In a May 2019 submission, the Veteran stated, "My right hip is weakening very fast," and, "My right hip is very painful and sometimes doesn't hold my weight; so far I had fallen twice because my right hip didn't hold my weight." The Veteran also then reported that he had to consider whether to undergo a right hip replacement. It is unclear from this May 2019 submission whether he meant that his hip had progressed in severity since the most recent VA examination in October 2018, but it is notable that the October 2018 examination report does not document any self-report by the Veteran of rapid worsening of right hip disability, any report of falls due to the right hip, or any need for a right hip replacement. Hence, it appears that in his May 2019 submission the Veteran is complaining of a right hip disability of greater severity than that reflected by the October 2018 examination report. An examination will be requested whenever VA determines, as in this case, that there is a need to verify the severity of a disability. See 38 C.F.R. § 3.159(c)(4). Remand is accordingly warranted for a new examination. The examiner must then specifically address any increased severity since the October 2018 examination, any pain or instability in the hip which may cause falls, and any need to replace the hip. The claims for service connection for left hip disability and for earlier effective dates for service connection for right hip limitation of flexion and right hip disability, impairment of thigh, are inextricably intertwined with these claims and hence must also be remanded. To the extent the issues here remanded are not directly affected by the above reasons for remand, they are intertwined with the issues which are directly affected, and hence are also remanded. Ratings over different intervals or different disabilities affecting the same system or body part, and total disability ratings, should not be rated separately by a Board decision when issues of that system or body part require remand, so as to avoid piecemeal adjudication. Harris, 1 Vet. App. at 183. 6. 7. Claims of entitlement to higher initial ratings for right ankle strain and left ankle strain. The Veteran was most recently afforded a VA examination addressing his ankles in August 2015. The Veteran reported that his pain in both feet had grown worse and was constant, with flare-ups resulting when he stood for 10 minutes or walked for more than 20 feet. He added that he never worked after his military retirement and lived on his retirement. The August 2015 examiner then provided range of motion for each ankle, and also indicated that pain, fatigue, weakness, lack of endurance, and incoordination affected functional ability for each ankle with repeated use over time. The examiner also indicated (by check mark) that he was able to describe this increased impairment for each ankle in terms of decreased range of motion. However, the examiner then failed to address this increased impairment in terms of decreased range of motion, instead merely repeating the initially measured range of motion for each ankle. The examiner was also instructed to address impaired functioning due to the Veteran's ankle disabilities, but the examiner instead merely noted that the Veteran "lost function due to constant pain, unable to stand and walking for his job." (sic) This is not an adequate articulation of the extent of reduced functioning due to ankle disability. Rather, it merely acknowledges that there is some amount of reduced functioning including as associated with reduced ability to stand and walk. This description of reduced functioning is not an adequate basis for rating the disability of each ankle. Accordingly, the examination is inadequate for rating purposes. If an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for rating purposes. 38 C.F.R. § 4.2. Remand for an adequate examination of the Veteran's ankles is required. 8. Claim of entitlement service connection for left hip disability, including as secondary to right hip disability. In a December 2020 informal hearing presentation (IHP), the Veteran's authorized representative argued that the October 2018 VA hips examiner indicated that left hip muscle weakness was due to the right hip rather than the left hip, and hence service connection for the left hip was warranted as secondary to the right hip. However, while the examiner in October 2018 did list "right hip pain" in response to the examination for question requesting a reason for reduced strength in the left hip, it is unclear whether this was a typographical error (typo) or an attempt by the examiner to provide a short-hand opinion of secondary causation. Remand is required for a follow-up query to the examiner October 2018 examiner to clarify this point. 9. The claim of entitlement to service connection for fibromyalgia, including as secondary to service-connected disabilities, is remanded. The Veteran has yet to be afforded a VA examination to address his claim for service connection for fibromyalgia. VA treatment records reflect a diagnosis of primary fibromyalgia. The Veteran is service connected for a large number of disabilities including disabilities of various joints, nummular eczema, and genital herpes. A VA examination is warranted to address the likelihood that the Veteran's claimed fibromyalgia is caused or aggravated by any of his service-connected disabilities. The matters are REMANDED for the following actions: 1. Afford the Veteran and his authorized representative the opportunity to submit additional evidence or argument in furtherance of the remanded claims. 2. Obtain any VA treatment records and any pertinent private treatment records not yet associated with the claims file. The Veteran's authorization or assistance should be requested, as appropriate. All requests, responses, and records received should be documented in the claims file. If any records cannot be obtained the Veteran should be appropriately notified. 3. Thereafter, due to the Covid-19 pandemic, if records-based examinations (including examinations supplemented by telephonic examination conducted with the Veteran) can satisfactorily address all questions posed in the remand instructions, then these should be accomplished. To the extent these cannot be accomplished, then in-person examinations should be conducted to the extent feasible. 4. The October 2018 VA hip examiner should be contacted and asked to address whether he meant to state on the examination report that left hip disability/ weakness was caused by right hip disability, or whether this was a typographical error. The examiner should provide a complete explanation for any opinions expressed. 5. If clarification cannot be obtained from the October 2018 examiner or if the etiology of the left hip is unclear after the above is completed, schedule a new examination to address the nature and etiology of any left hip or left thigh disability. The claims file should be reviewed, including findings from past VA examinations and past treatment records. Any necessary tests or studies should be obtained, with the results reported in detail. The examiner must also document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. The examiner must address the following: (a.) For any left hip or left thigh disability present during the claim period, is it at least as likely as not (50 percent or greater probability) that the disability developed in service or is otherwise causally related to service. (b.) For any left hip or left thigh disability present during the claim period, is it at least as likely as not (50 percent or greater probability) that the disability was caused by the Veteran's right hip disability. (c.) For any left hip or left thigh disability present during the claim period, is it at least as likely as not (50 percent or greater probability) that the disability was aggravated (worsened) by the Veteran's right hip disability. The examiner must provide separate opinions for causation and aggravation. Aggravation does not require that there be "permanent" worsening of the nonservice connected disability. The examiner must provide a complete explanation for each opinion provided. If the examiner is unable to provide the required opinions, including whether diagnoses may be assigned to claimed disability, he or she should explain why. 6. Obtain new examinations by an examiner qualified to address the nature and severity of disabilities of the right hip, right thigh, and each ankle. The claims file should be reviewed, including findings from past VA examinations and past treatment records. Any necessary tests or studies should be obtained, with the results reported in detail. All pertinent findings for rating the disabilities under applicable rating codes should be provided. The examiner must specifically address any increased severity of the Veteran's right hip disability subsequent to the October 2018 VA examination, any pain or instability in the hip which may cause falls or has caused falls, and any need to replace the hip. All pertinent symptomatology and findings must be reported in detail in accordance with rating hip joint, ankle joint, and thigh muscle disabilities. All pertinent findings including with regard to active motion, passive motion, weight-bearing and non-weight-bearing, during flare-ups and with repeated use over time, must be address not only for each ankle and the right hip, but also for the left hip, as the contralateral joint, to adequately compare functioning. The examiner must also document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. To the extent feasible, the current examiner should attempt to distinguish disability intrinsic to the right hip and each ankle from that due to other causes. Furthermore, an opinion must be given as to whether any pain associated with the Veteran's disabilities of the right hip, right thigh, and each ankle could significantly limit functional ability during flare-ups or during periods of repeated use. For the right hip and each ankle, the examiner should approximate the degree of additional range of motion loss due to pain on use or during flare-ups. Notably, 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 flare-ups or with repetitive use over time, and if so, the examiner must estimate range of motion of each hip and each ankle during flare-ups or with repetitive use over time based upon relevant information elicited from the Veteran, review of the claims file, and the current examination results pertaining to the frequency, duration, characteristics, severity, and functional loss during flare-ups and with repetitive use over time. The examiner should address the likely impact, separately, of the Veteran's right hip disability, right thigh disability, and disability of each ankle, on his ability to work. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1. 7. Obtain an examination to address the nature and etiology of the Veteran's fibromyalgia. The claims file should be reviewed, including findings from past VA examinations and past treatment records. Any necessary tests or studies should be obtained, with the results reported in detail. The examiner must also document and consider the Veteran's own statements regarding his disability, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. If the examiner has reason based on other evidence of record or medical knowledge to question the Veteran's self-reported history, the examiner should so state and provide a complete explanation why this is so. The examiner must address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's fibromyalgia developed in service or is otherwise causally related to service? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's fibromyalgia was caused by one or more of his service-connected disabilities, which include a right shoulder condition, a right hip disability, a right thigh impairment, a right ankle disability, a left ankle disability, a right knee disability, a left knee disability, a low back disability, carpal tunnel syndrome of the right wrist, carpal tunnel syndrome of the left wrist, tension headaches, bilateral hearing loss, tinnitus, a left eye disability, ocular allergies, pterygium of the left eye, left testicular cyst, residuals of left inguinal hernia, genital herpes, nummular eczema, and lichen simplex chronicus? This should include consideration of being caused by treatment, including medication management, for these disabilities. (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's fibromyalgia was aggravated (worsened) by one or more of his service-connected disabilities, which include a right shoulder condition, a right hip disability, a right thigh impairment, a right ankle disability, a left ankle disability, a right knee disability, a left knee disability, a low back disability, carpal tunnel syndrome of the right wrist, carpal tunnel syndrome of the left wrist, tension headaches, bilateral hearing loss, tinnitus, a left eye disability, ocular allergies, pterygium of the left eye, left testicular cyst, residuals of left inguinal hernia, genital herpes, nummular eczema, and lichen simplex chronicus? This should include consideration of being aggravated by treatment, including medication management, for these disabilities. The examiner must provide separate opinions for causation and aggravation. Aggravation does not require that there be "permanent" worsening of the nonservice connected disability. The examiner must provide a complete explanation for each opinion provided. If the examiner is unable to provide the required opinions, including whether diagnoses may be assigned to claimed disability, he or she should explain why. 8. Thereafter, readjudicate the appealed issues. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.