Citation Nr: 21028635 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 11-22 112 DATE: May 11, 2021 REMANDED Entitlement to a rating in excess of 10 percent for right thigh limited flexion due to right femur fracture with leg length discrepancy and osteoarthritis of the right hip and pelvis for the period prior to February 13, 2020 is remanded. Entitlement to a compensable rating for right thigh disability with limited adduction, abduction, or rotation for the period prior to February 13, 2020 is remanded. Entitlement to a total disability individual unemployability (TDIU) rating for the period between January 1, 2015 to October 1, 2017 is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1972 to March 1987. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office. This decision denied a rating in excess of 10 percent for a right femur fracture. While pending Board adjudication, the RO issued a September 2017 rating decision increasing the Veteran's 10 percent rating to 20 percent disabling from July 20, 2009 forward. The claim was thereafter recharacterized as entitlement to a rating higher than 20 percent for right femur fracture with leg length discrepancy with osteoarthritis of the right hip and pelvis. The issue was rated under Diagnostic Code (DC) 5255 for impairment of the femur. In February 2018, the Board remanded the issue. While pending return to the Board, the RO issued a May 2019 rating decision awarding separate 10 percent ratings for the Veteran's limited extension and flexion as well as a separate noncompensable rating for limited adduction, abduction, and rotation. These ratings were awarded from July 20, 2009 and their DCs were altered to 5003-5251, 5003-5252, and 5003-5253, respectively. In December 2019, the Board remanded the issues of increase rating for flexion, adduction, abduction, and rotation for further development. While pending return to the Board, in a September 2020 rating decision, the RO granted a separate 40 percent rating for limited flexion and a 20 percent rating for limitation of abduction, adduction, and rotation. Both increases were awarded from February 13, 2020 forward. Finally, in October 2014, February 2018, and April 2020 the Veteran was awarded partial grants for TDIU. Currently he is in receipt of a TDIU for the entire period on appeal except for the period between January 1, 2015 to October 1, 2017. The Veteran has continued appeals and these issues are listed above. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to a rating in excess of 10 percent for right thigh limited flexion prior to February 13, 2020. 2. Entitlement to a compensable rating for right thigh disability with limited adduction, abduction, or rotation prior to February 13, 2020. As stated in the introduction, the Veteran has been awarded increase ratings during the pendency of the appeal. These most recent increases were predicated on a February 13, 2020 VA examination, and were made effective from that date forward. Currently, the record remains unclear as to the severity of the Veteran's condition prior to his February 2020 examination. Specifically, the Board is presently unable to ascertain the date when the Veteran's conditions worsened to the extent listed on 2020 examination. Notwithstanding the above, the record does contain evidence which is suggestive of a worsening prior to the 2020 VA examination such that a remand for a retrospective opinion is warranted. In that regard, the Veteran underwent VA examination in October 2016. This examination which was neither Correia nor Sharp compliant. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); See February 2018 and December 2019 Board Remands. In June 2018, a VA addendum opinion was obtained. In relevant part, the opinion stated that the 2016 VA examination report contained sufficient findings to ascertain the current severity of the Veteran condition without requiring reexamination. To that end, the examiner noted that the Veteran's level of pain and overall disability were indicative of substantial loss and functional impairment such that further evaluation was unnecessary. Passive range of motion was not medical appropriate and may not even be possible with this Veteran. The presence of pain on active non-weight bearing motion with evidence of loss of excursion was sufficient for accurate evaluation of the level of functional impairment without any additional information. Unfortunately, the examiner did not provide an estimation as to the Veteran's loss of range of motion with repeated use over time. Per the provisions of Sharp, an examiner is supposed to attempt to provide an estimate of the degree of additional range of motion loss due to flare-ups or with repeated use over time or provide an adequate rationale why this was not possible. See Sharp, 29 Vet. App. 26, 33 (2017). As stated, the examiner did not provide this information or indicate why such information could not be provided. Given the examiner's statements about the record clearly reflecting the severity of the Veteran's disability, and the holding of Sharp, a retrospective opinion is warranted. Id. While on remand, all outstanding treatment medical records must be obtained and associated with the record. 3. Entitlement to a TDIU for the period between January 1, 2015 to October 1, 2017. As the above remanded issues of entitlement to increase ratings could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. See Henderson v. West, 12 Vet. App. 11, 20 (1998). Per the Henderson, matters are "inextricably intertwined" where action on one matter could have a "significant impact" on the other. Therefore, a remand of the issue of entitlement to a TDIU is also required. In addition, the RO should have the Veteran submit an updated a VA Form 21-8940 addressing his employment status for the period between January 1, 2015 to October 1, 2017. Currently, although an October 2017 VA Form 21-8940 is of record, it is negative for information regarding this period. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. With any necessary assistance from the Veteran, obtain any relevant outstanding private treatment records. 2. Request that the Veteran complete a VA Form 21-8940. Obtain a statement from the Veteran regarding his work history for the period between January 1, 2015 to October 1, 2017. All actions to obtain the requested information should be documented in the claims file. 3. Obtain an addendum retrospective opinion as to the severity of the Veteran's right thigh/hip disability on repeated use and due to flare-ups for the period prior to February 13, 2020. The claims file, to include a copy of this remand must be made available to and be reviewed by an examiner. No additional examination is necessary unless the examiner determines otherwise. The examiner is requested to address the following: (a.) Please provide an opinion describing functional impairment of the Veteran's thigh/hip disability on repeated use and due to 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 for the period prior to February 13, 2020. (b.) If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the Veteran's reported history. The examiner must also address the findings of the October 2016 VA examination and the June 2018 VA addendum. Of note, the VA June 2018 VA examiner opined that the record was sufficient to accurately ascertain the severity of the Veteran's condition. N. NELSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. L. Burroughs, 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.