Citation Nr: 21032606
Decision Date: 05/27/21	Archive Date: 05/27/21

DOCKET NO. 04-00 199A
DATE: May 27, 2021

REMANDED

The claim for a rating in excess of 50 percent for residuals of a left hip fracture with arthritis, status post hip replacement is remanded. 

The claim for a rating in excess of 20 percent for degenerative disc disease of the lumbar spine is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1975 to April 1976.   

In November 2019, the Board of Veterans' Appeals (Board) remanded the claims for increased ratings for residuals of a left hip fracture and degenerative disc disease of the lumbar spine for VA examinations containing the findings required by Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017).  Such examinations were scheduled, but the Veteran in October 2020 indicated that he would not attend the scheduled examination.  As set forth in an October 2020 Report of Contact, and explained in more detail by the Veteran in a statement received in November 2020, the Veteran declined the VA examinations because they were not to be conducted by an orthopedist or specialist knowledgeable about the service connected hip and lumbar spine disabilities at issue.  

The Veteran emphasized in the November 2020 statement that he would not attend a compensation examination not conducted by an orthopedist or specialist knowledgeable about the service connected hip and lumbar spine disabilities at issue, and his representative requested in his February 2021 brief to the Board that such an examiner conduct examinations to determine the severity of the service connected hip and lumbar spine disabilities at issue.  Also referenced by the Veteran in his November 2020 statement and his representative in his February 2021 brief were reports from chiropractic treatment of the Veteran's lumbar spine through as late as February 2020 that they say need to be obtained as they could potentially demonstrate entitlement to increased compensation for the service connected lumbar spine disability at issue.   

Given the above and in short, the undersigned finds that in order to fulfill the duty to assist in this case, the Veteran must be afforded examinations conducted by an orthopedist or specialist knowledgeable about the service connected hip and lumbar spine disabilities at issue to determine the severity of the Veteran's service connected residuals of a left hip fracture with arthritis, status post hip replacement and degenerative disc disease of the lumbar spine.  The Board will also request that  these examinations obtain the findings required by Correia and Sharp.  The undersigned also finds that the chiropractic treatment reports referenced above must be obtained in order to fulfill the duty to assist.  

For the reasons stated above, this case is REMANDED for the following action:

1. Conduct all appropriate development to obtain records of treatment of the Veteran at Specific Care Chiropractic, 3020 Lee Blvd., Lehigh Acres, FL 33971.

2. Schedule the Veteran for examinations to determine the current nature and severity of his service-connected left hip fracture with arthritis, status post hip replacement and degenerative disc disease of the lumbar spineby an orthopedist or specialist knowledgeable about the service connected hip and lumbar spine disabilities at issuethat include the range of motion findings required by Correia and the findings with respect to flare-ups required by Sharp. 

 

 

MARJORIE A. AUER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Andrew Ahlberg, 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.