Citation Nr: 21032649 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-39 793 DATE: May 27, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a left hip disability prior to October 28, 2016 is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1980 to September 1983 and from August 1985 to August 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision. In August 2018, the Veteran testified at a hearing held before the undersigned. In April 2019 and November 2020, the Board remanded the claim for additional development. Here, the Veteran filed an April 2011 claim seeking an increased rating for her service connected left hip disability. At that time, her left hip condition was identified as left hip strain and rated by analogy to bursitis. A 10 percent rating was applied under diagnostic code (DC) 5019. Subsequently, VA hip conditions examinations were provided in April 2012 and in February 2013. Left hip osteoarthritis was diagnosed. An August 2013 rating decision identified the left hip condition as limitation of extension of the left thigh and continued the existing 10 percent rating under DC 5003-5251. An additional noncompensable rating for limitation of flexion of the left hip was provided under DC 5003-5252. The Veteran appealed, seeking a higher rating for her left hip condition. On October 28, 2016, during the pendency of this appeal, the Veteran underwent a left hip arthroplasty. An April 2017 rating decision allowed an increased rating for the left hip disability. The left hip condition was then identified as left total hip arthroplasty. A 100 percent temporary total rating was applied for the first year after surgery and a 30 percent rating was applied thereafter under DC 5054. During the August 2018 hearing before the Board, the Veteran withdrew her claim for a rating in excess of 30 percent for residuals of a left hip arthroplasty. Her representative explained the Veteran did not believe her current symptomatology met the criteria for a rating higher than 30 percent. In April 2019, the Board accepted the withdrawal of this issue. The claim seeking an increased rating for residuals of a left total hip arthroplasty (performed on October 28, 2016) was dismissed. Thereafter, the only issue remaining in appellate status was whether a rating in excess of 10 percent was warranted prior to the October 28, 2016 surgery. In April 2019 and November 2020, the Board identified the remaining issue as entitlement to an initial compensable rating for limitation of flexion the left thigh and remanded the claim for additional development. This characterization of the issue was inaccurate. Now, for clarity and accuracy, the remaining claim is identified as entitlement to an increased left hip rating prior to October 28, 2016. This better reflects the Veteran's contention as documented in the August 2018 hearing transcript and in August 2020 and April 2021 informal hearing presentations submitted by her representative. Entitlement to a rating in excess of 10 percent for a left hip disability prior to October 28, 2016 is remanded. A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In November 2020, the Board remanded the claim so that a retrospective opinion, evaluating the Veteran's left hip disability between April 2011 and October 2016, could be obtained. In January 2021, a VA hip conditions examination, evaluating the Veteran's current left hip condition, was provided. No retrospective opinion was obtained. There has not been substantial compliance with the Board's prior directives. The claim must be remanded to obtain the retrospective opinion. Id. The matters are REMANDED for the following action: Obtain a medical opinion regarding the severity of the Veteran's left hip condition during the period from April 2011 to October 2016, prior to her left hip arthroplasty. The Veteran should only be scheduled for a new examination if deemed necessary by the selected examiner. For this period, the examiner should provide an opinion as to whether there was any additional functional loss attributable to pain, weakness, fatigue, or incoordination associated with the left hip after repetitive use or during flare-ups. Using the February 2013 VA examination report, available medical records, and the Veteran's statements as a guide, the examiner should attempt to express the additional functional limitation, if any, after repetitive use or during flare-ups in terms of the degree of additional limitation of motion prior to October 28, 2016. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The fact that her report of symptoms is not corroborated by contemporaneous medical treatment records is not, by itself, a sufficient reason to reject the Veteran's report of symptoms capable of lay observation. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.