Citation Nr: 21031872 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 10-49 398 DATE: May 24, 2021 REMANDED Entitlement to a rating in excess of 50 percent for a left hip arthroplasty from March 1, 2016 is remanded. REASONS FOR REMAND The Veteran served in the U.S. Navy, on active duty from February 1984 to April 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural background, the Board previously remanded this claim in April 2014, November 2016, and January 2018, for additional development. In February 2020, the Board denied the claim. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court granted a Joint Motion for Partial Remand (JMPR) in which the parties agreed that the prior Board decision would be partially vacated, and the above issue returned to the Board for further development, per the orders dictated in the JMPR. The Board notes that the JMPR identified specific duty to assist errors. The Board will address the duty to assist errors at this time, as they must be remedied prior to any further consideration of the claim on the merits. Entitlement to a rating in excess of 50 percent from March 1, 2016 is remanded The Veteran was afforded a VA examination in May 2018 to determine the severity of his service-connected left hip condition. The parties, in the JMPR, have agreed that the examination is inadequate because the examiner reported no functional loss based on pain with range of motion, however, the examiner also concluded that the Veteran's pain would impact his functional ability during flare-ups. While the examiner expects the flare-ups would decrease his range of motion, no estimation of the additional loss was provided. Thus, the examiner failed to fully inform the Board of the exact degree of the Veteran's difficulty with range of motion during a flare-up. Moreover, the parties agreed that the May 2018 VA examination was inadequate because it was not clear whether the examiner conducted range of motion testing as required by 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158, 168-69 (2016). Therefore, the Board will remand this claim for an adequate VA examination which complies with the Court's January 2021 remand. The matters are REMANDED for the following action: 1. Upload all outstanding VA treatment records not currently associated with the Veteran's claims file. Invite the Veteran to submit any additional relevant evidence or arguments in support of his claim. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left hip condition. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluation the Veteran's disability under the rating criteria. This must include full range of motion testing if the examiner finds it is not possible to test range of motion, the examiner is asked to explain their reasoning in detail. The examiner should, to the extent possible, attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, as well as any additional limitation of motion resulting from fatigue and overuse. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Thereafter, readjudicate the claim on appeal in light of all evidence of record. If the benefit sought should remain denied, or not granted to its fullest extent, issue the Veteran and his representative a supplemental statement of the case and afford him adequate time to respond before returning the matter to the Board for further appellate review. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. McDonald