Citation Nr: 21041978 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-14 080 DATE: July 10, 2021 REMANDED Entitlement to an initial compensable evaluation for status post left nondisplaced fracture to a femoral head with open reduction internal fixation (ORIF) and degenerative arthritis, with limitation of flexion, from September 9, 2013 until October 1, 2019, is remanded. Entitlement to an evaluation in excess of 10 percent for status post left nondisplaced fracture to a femoral head with ORIF and degenerative arthritis, with limitation of flexion, from October 1, 2019 until March 24, 2021, is remanded. Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from November 1979 to November 1997. This appeal comes to the Board from a January 2015 rating decision. In June 2019, the Board remanded this matter because prior VA examinations did not adequately assess to the likelihood that the Veteran's service-connected hip disabilities including gait disturbances aggravated his back disabilities. The Board also ordered a new VA examination of the left hip to obtain joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The procedural history regarding the Veteran's service-connected hip disability is complicated in this case. In the appealed January 2015 rating decision, the RO granted service connection for status post left nondisplaced fracture to a femoral head with ORIF and degenerative arthritis, with limitation of flexion, and granted a zero percent evaluation as of September 9, 2013. At that time, service connection was also in effect for left hip impairment and limitation of extension disabilities. He limited his appeal in his Notice of Disagreement to the limitation of flexion disability, and the other two hip ratings are not currently on appeal. In an October 2019 rating decision, the RO increased the rating for left hip limitation of flexion to 10 percent, effective October 1, 2019. The coded rating portion of this decision appears to omit mention of the period from September 9, 2013 until October 1, 2019, but the Board presumes that a compensable rating is still sought for this period. Following a left total hip replacement in March 2021, further changes were made to the Veteran's hip ratings in March and April 2021 rating decisions. The underlying left hip impairment disability was recharacterized to a left total hip replacement, with a temporary 100 percent rating assigned as of March 24, 2021 and a 30 percent rating assigned as of August 1, 2021, and the separate zero percent evaluation for limitation of extension was discontinued as of March 24, 2021. As noted above, these ratings were not included in the Notice of Disagreement, and the Board lacks jurisdiction over them. As to the left hip flexion, the matter over which the Board does have jurisdiction, the existing 10 percent rating was discontinued as of March 24, 2021, the date of the left total hip replacement. Accordingly, the left hip issues on appeal have been recharacterized to include: 1) entitlement to an initial compensable evaluation for status post left nondisplaced fracture to a femoral head with ORIF and degenerative arthritis, with limitation of flexion, from September 9, 2013 until October 1, 2019; and 2) entitlement to an evaluation in excess of 10 percent for status post left nondisplaced fracture to a femoral head with ORIF and degenerative arthritis, with limitation of flexion, from October 1, 2019 until March 24, 2021. As recent VA treatment records document replacement surgery on the left hip since the last VA hip examination, VA also should afford the Veteran a current examination of his hips before obtaining the opinion assessing the extent to which the hips aggravate the back. See March 2021 Discharge Summary from Mountain Home VA Healthcare System. The new examination should retrospectively address the left hip limitation of flexion disability during the noted periods on appeal. As the Veteran's representative noted in the June 2021 Written Brief Presentation, the October 2019 VA back examination VA obtained following the remand order does not address the question of aggravation. Therefore, the Board must remand this appeal again to obtain an adequate opinion and ensure VA substantially complies with the Board's remand directives. The opinion should also address concerns in the June 2021 Written Brief Presentation about deficiencies in earlier examinations. The Veteran's representative notes the earlier examinations do not contain adequate discussion of the Veteran's reports of back pain following from a fall in 1980 documented in the Veteran's service records. See, e.g., August 1981 and June 1980 entries in the Veteran's service records (documenting reports of pain and back spasms following a fall). The Board REMANDS these matters for the following actions: 1. VA should contact the Veteran and the current representatives and request their assistance in identifying any outstanding relevant records. VA should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. After associating all outstanding relevant records with the Veteran's claims file, VA shoulder obtain a current examination of the Veteran's left hip disability to assess its severity, including retrospectively during the period from September 9, 2013 to March 24, 2021. All necessary diagnostic testing should be performed. The disability must be examined, and all testing results (including range of motion findings) must be reported. The examiner should address the following concerns based on a review of the claims file and interview and examination of the Veteran. To the extent that these symptoms were present from September 9, 2013 to March 24, 2021, the examiner should so state: (a.) The examiner must describe all impairments of the Veteran's disability; make determinations regarding range of motion, including any additional functional impairment; and identify any related neurological symptoms. (b.) Range of motion measurements MUST be included for active and passive motion, and weight-bearing and non-weight bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. (c.) The examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. (d.) If the Veteran is not having a flare-up during the examination, the examiner should work with the Veteran to estimate functional loss (to include range of motion limitations) during flare-ups by describing and demonstrating typical flare-up symptoms (and measuring these demonstrations with a goniometer). Please note that the Board CANNOT accept a rationale that the Veteran is not having a flare-up at the time of the examination to explain why the range of motion values cannot be provided. 3. After associating all outstanding relevant records with the Veteran's claims file and obtaining a current examination of hips, VA should obtain a medical opinion regarding the Veteran's back and ensure it addresses the following concerns: (a.) The VA examiner should identify all back disabilities that the Veteran experienced during the period at issue. For the purpose of the examination, disabilities include any functional impairment of earning capacity, to include due to the Veteran's credible reports of pain. (b.) In regard to each back disability, the VA examiner should opine whether it is at least as likely as not (at least an approximate balance of negative and positive evidence) the Veteran's back disability first manifested during or was otherwise caused by events during the Veteran's military service, to include a documented fall in 1980. The examiner should provide adequate rationale with reference to the Veteran's competent and credible reports of symptoms including pain. See June 2021 Written Brief Presentation; August 1981 and June 1980 entries in the Veteran's service records (documenting reports of pain and back spasms following a fall). (c.) In regard to arthritis of the spine, the VA examiner should opine whether it is at least as likely as not (at least an approximate balance of negative and positive evidence) that the Veteran's arthritis manifested within one year of the Veteran's separation from active duty. 38 C.F.R. § 3.309(a). (d.) Regarding each back disability, the examiner should opine whether it is at least as likely as not (at least an approximate balance of negative and positive evidence) that the Veteran's service-connected hip disabilities aggravated the Veteran's back. The aggravation does not have to be permanent. Temporary aggravation is sufficient for secondary service connection. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiner should provide adequate rationale with reference to evidence support the Veteran's claim that gait disturbances caused by the hip disabilities aggravate his back. (e.) All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.