Citation Nr: 21031935 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 18-48 401 DATE: May 25, 2021 REMANDED Entitlement to a rating in excess of 20 percent for status post open reduction-internal fixation of fracture of left hip with limitation of flexion (left hip flexion limitation) is remanded. Entitlement to a compensable rating for status post open reduction-internal fixation of fracture of left hip with painful extension (left hip painful extension) is remanded. Entitlement to a compensable rating for the period prior to February 17, 2021 and a rating in excess of 10 percent for the period thereafter for status post open reduction-internal fixation of fracture of left hip with painful abduction and adduction (left hip painful abduction and adduction) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1989 to March 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In an August 2019 decision, the Board denied the Veteran's claim for a rating in excess of 20 percent for status post open reduction-internal fixation of fracture of left hip with limitation of flexion (left hip flexion limitation), a compensable rating for status post open reduction-internal fixation of fracture of left hip with painful extension (left hip painful extension), and a compensable rating for status post open reduction-internal fixation of fracture of left hip with painful abduction(left hip painful abduction). The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court granted a Joint Motion for Remand (JMR) by the Veteran's attorney and the VA General Counsel. In October 2020, the Board remanded the claim for development consistent with the JMR. 1. Entitlement to a rating in excess of 20 percent for status post open reduction-internal fixation of fracture of left hip with limitation of flexion (left hip flexion limitation) is remanded. 2. Entitlement to a compensable rating for status post open reduction-internal fixation of fracture of left hip with painful extension (left hip painful extension) is remanded. 3. Entitlement to a compensable rating for the period prior to February 17, 2021 and a rating in excess of 10 percent for the period thereafter for status post open reduction-internal fixation of fracture of left hip with painful abduction and adduction (left hip painful abduction and adduction) is remanded. Although the additional delay is regrettable, the Board finds an additional remand is required as there has not been substantial compliance with the October 2020 Board remand. A remand by the Board confers on the Veteran, as a matter of law, a right to substantial compliance with remand instructions, and imposes upon VA a concomitant duty to ensure substantial compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). If the Board proceeds with final disposition of an appeal, and the Agency of Original Jurisdiction (AOJ) has not substantially followed the remand orders, the Board itself errs in not ensuring substantial compliance. Id. In the October 2020 remand order, the Board directed the AOJ to schedule the Veteran for a VA examination to determine the current severity of her left hip condition if outstanding private treatment records were obtained. The examiner was asked to report all signs and symptoms necessary for evaluating the Veteran's left hip condition including, in particular, providing range of motion test results (in degrees) for the Veteran's left hip on active motion, passive motion, weight-bearing, and nonweight-bearing. However, in the subsequent February 2021 VA examination, the examiner only provided range of motion tests results, in degrees, for active motion; he did not provide range of motion tests in degrees results for passive motion, weight-bearing, or nonweight-bearing. Therefore, remand is required to ensure substantial compliance with the above prior remand directives. Stegall, 11 Vet. App. 271. The matters are REMANDED for the following action: Schedule the Veteran for an examination to determine the severity of her left hip condition. The examiner should report all signs and symptoms necessary for evaluation of the Veteran's left hip condition under the rating criteria. In particular, the examiner should provide range of motion test results (in degrees) for the Veteran's left hip 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 left 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 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. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Jiggetts 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.