Citation Nr: 22014341 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 12-16 906 DATE: March 12, 2022 REMANDED Entitlement to an increased rating for right hip strain associated with mechanical low back condition with degenerative disc disease (rated at 20 percent prior to November 16, 2011, and at 10 percent thereafter), to include the propriety of the rating reduction from 20 to 10 percent effective November 16, 2011, is remanded. Entitlement to an increased rating above 10 percent for left hip strain status post stress fracture of the left pelvis is remanded. REASONS FOR REMAND The Veteran had qualifying service from November 1990 to May 1993. This appeal originates from a November 2011 Rating Decision that decreased the right hip rating and denied an increased rating for the left hip rating. In February 2017, the Veteran testified at a Board Videoconference Hearing before the undersigned Veterans Law Judge. In a March 2018 Decision, the Board remanded the issues herein for further development. 1. Entitlement to an increased rating for right hip strain, to include the propriety of the rating reduction from 20 to 10 percent effective November 16, 2011 After the March 2018 Board Decision, the Agency of Original Jurisdiction (AOJ) afforded the Veteran hip examinations in September 2018 and December 2020; however, neither examination contains adequate findings. Throughout the record, the Veteran has consistently contended flare-ups of the bilateral hips (see September 1997 Statement; June 2011 VA examination; October 2016 VA hip and thigh examination); however, the September 2018 and December 2020 examiners, without explanation, indicated that the Veteran had no flare-ups and, as such, did not attempt to estimate any additional functional loss due to flare-ups, as required by the holding in Sharp. Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (examiner must attempt to elicit information regarding the severity, frequency, duration, and functional loss during flare-ups before determining that additional range of motion loss due to flare-ups cannot be estimated). Additionally, the September 2018 and December 2020 examiners opined that the Veteran's functional loss was due to factors other than her bilateral hip conditions. The September 2018 examiner wrote that the hip disabilities had no functional impact and that all of the range of motion abnormalities were not due to any hip condition, but, rather, to her other service-connected low back and radiculopathy conditions, deconditioning, and morbid obesity. The December 2020 examiner also found no functional impact from the hip disabilities but noted atrophy of disuse (described as "obesity and being sedentary"), noted reduced muscle strength of the bilateral hips due to the back condition, and suggested somatization and/or malingering after the Veteran "resisted" testing but was able to stand, sit, and lay on the examination table (although the examiner then stated that he had the Veteran stand and perform different ranges of motion which "appeared" to be completed in full but "were not measured"). For the Board to assign proper ratings, and avoid prohibited pyramiding, medical clarification is also warranted to: (a) explain whether the symptoms and functional loss from the bilateral hip conditions are clearly separable from the symptoms and functional loss from the service-connected back and radiculopathy conditions and, if not, which set of diagnostic criteria allows the better assessment of overall impaired functioning given the overlap; and (b) obtain proper range of motion measurements through use of a goniometer, rather than whether there "appeared" to be full range of motion. 38 C.F.R. § 4.14 (the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating service-connected disabilities); 38 C.F.R. § 4.46 (the use of a goniometer in the measurement of limitation of motion is indispensable in examinations conducted within VA). 2. Entitlement to an increased rating above 10 percent for left hip strain status post stress fracture of the left pelvis This issue is remanded for the same reasons discussed above. The matters are REMANDED for the following action: 1. Examine the current severity of the bilateral hip disabilities. The examiner is advised that the Veteran has consistently contended flare-ups of the bilateral hips (see September 1997 Statement; June 2011 VA examination; October 2016 VA hip and thigh examination), so the findings must be consistent with the holding in Sharp (examiner must attempt to estimate additional range of motion loss during flare-ups or must elicit information regarding the severity, frequency, duration, and functional loss during flare-ups before determining that additional range of motion loss due to flare-ups cannot be estimated). The examiner should explain whether the symptoms and functional loss from the bilateral hip conditions are clearly separable from the symptoms and functional loss from the service-connected back and radiculopathy conditions and, if not, which set of diagnostic criteria allows the better assessment of overall impaired functioning due to the overlapping conditions. See September 2018 examination (the examiner opined that the Veteran's functional loss was due to factors other than her bilateral hip conditions and wrote that the hip disabilities had no functional impact and that all of the range of motion abnormalities were not due to any hip condition, but, rather, to her other service-connected low back and radiculopathy conditions, deconditioning, and morbid obesity); see also December 2020 examination (the examiner opined that the Veteran's functional loss was due to factors other than her bilateral hip conditions, finding no functional impact from the hip disabilities but noting atrophy of disuse [described as "obesity and being sedentary"] and reduced muscle strength of the bilateral hips due to the back condition). The examiner is reminded that the use of a goniometer in the measurement of limitation of motion is indispensable. See December 2020 examination (the examiner suggested somatization and/or malingering after the Veteran "resisted" testing but was able to stand, sit, and lay on the examination table [although the examiner then stated that he had the Veteran stand and perform different ranges of motion which "appeared" to be completed in full but "were not measured"]). (Continued on the next page) 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, 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.