Citation Nr: 21042791 Decision Date: 07/14/21 Archive Date: 07/13/21 DOCKET NO. 20-07 429 DATE: July 14, 2021 REMANDED Entitlement to an increased rating in excess of 10 percent prior to October 23, 2019, and in excess of 20 percent thereafter, for post open reduction, internal fixation (ORIF) left thigh, (flexion) is remanded. Entitlement to a compensable rating prior to October 23, 2019, and in excess of 20 percent thereafter, for left hip/thigh impairment (abduction/adduction) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy June 1953 to January 1962. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision by the Cleveland, Ohio Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a July 2020 decision, the Board denied these claims for increased evaluations and remanded claims for entitlement to service connection for a cervical spine disability, right upper extremity radiculopathy, asbestosis, and chronic obstructive pulmonary disease. The Veteran appealed the portion of the July 2020 Board decision which denied increased evaluations for ORIF left thigh and for left hip/thigh impairment to the United States Court of Appeals for Veterans Claims (Court). In March 2021, on the basis of a Joint Motion for Partial Remand (JMPR), that portion of the Board's decision which denied increased ratings for the Veteran's left lower extremity disabilities was vacated and remanded for further action. Upon review of the JMPR and other evidence of record, the Board finds remand is warranted to ensure compliance with the Court's decision in Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). The Veteran underwent a VA hip and thigh examination in October 2019. The VA examiner stated that he was unable to say without speculation whether pain, weakness, fatigability, or incoordination limits functional ability with repeated use over time because the Veteran was not "examined over time." The VA examiner similarly stated that he was unable to say without speculation whether pain, weakness, fatigability, or incoordination limits functional ability during flare ups because it would be "speculation" as the Veteran was not examined during a flare up. However, the parties noted that the VA examiner failed to explain whether he attempted to elicit information from the Veteran or other sources. As such, the parties agreed that is was not clear that the VA examiner had "considered all procurable and assembled data" and that his inability to provide a nonspeculative opinion "reflect[s] the limitation of knowledge in the medical community at large and not a limitation whether based on lack of expertise, insufficient information or unprocured testing of the individual examiner." Sharp, 29, Vet. App. 33 (quoting Jones, 23 Vet. App. at 390). The parties agreed that a retrospective opinion is required to address whether the Veteran's functional ability was limited with repetitive use and during flare ups, prior to October 23, 2019. The parties agreed that the examiner should address that additional loss of functional ability in terms of range of motion, if possible and, if not possible, the examiner should provide an adequate statement explaining why. Therefore, on remand, to comply with the JMPR, a retrospective opinion is needed as to the limitation of functional ability the Veteran experiences due to pain, weakness, fatigability, or incoordination, with repeated use over time and with flare ups prior to October 23, 2019. Updated medical findings will also be helpful in resolving the claims. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA hip and thigh examination; the claims folder must be reviewed in conjunction with the examination. 2. The examiner must describe in detail the current status and functional limitations related to the Veteran's left hip and thigh disability, to include description of functional capacity with repeated movement and on flare-up, and with and without weight bearing." Additionally, the examiner must provide a retrospective medical opinion regarding the severity of the Veteran's left hip disabilities at the time of the December 2015, August 2018 and October 2019 VA hip and thigh examinations. The examination reports of record together with all other evidence pertaining to the severity of the Veteran's left hip/thigh the period prior to October 23, 2019, should be discussed. The examiner should render, if possible without resorting to mere speculation, a retrospective opinion that estimates the ranges of motion of the Veteran's left hip in active motion, passive motion, weightbearing, non-weightbearing (including accounting for functional impairment due to pain) and the additional functional impairment on repeated use or during flare-ups, at each time the hips were examined with range of motion testing for rating purposes. If an such an opinion cannot be provided, the examiner should provide an explanation as to why this is so and what, if any, additional evidence would permit such an opinion to be provided. 2. Upon completion of the above readjudicate the remanded issues. If the benefits sought remain denied, the Veteran and his representative should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger 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.