Citation Nr: 22015501 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 18-35 001 DATE: March 17, 2022 REMANDED Entitlement to an initial compensable rating for limitation of flexion from left hip strain is remanded. Entitlement to an initial compensable rating for limitation of extension from left hip strain is remanded. Entitlement to special monthly compensation based on the need for aid and attendance due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1968 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision of a Department of Veterans Affairs Regional Office (RO) which, in pertinent part, granted service connection for left hip strain and assigned noncompensable ratings for flexion and extension of the left hip. In July 2019, the Board, in pertinent part, denied compensable ratings for limitation of flexion and extension of the left hip and earlier effective dates for limitation of flexion and extension of the left hip. The Veteran appealed the Board's July 2019 decision to the United States Court for Veterans Claims (Court) and, in a subsequent December 2020 memorandum decision, the Court vacated and remanded that part of the Board's decision that denied compensable disability ratings for the service-connected flexion and extension of his left hip. Specifically, the Court stated that the Board failed to adequately explain whether the January 2018 VA examination complied with the holding in Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). The remainder of the Board's decision remained undisturbed. In June 2021, the Board remanded the issues on appeal for further development consistent with the terms of the December 2020 memorandum decision. Increased Rating Claims In the June 2021 remand, the Board remanded the Veteran's claims for increased ratings for his service-connected left hip strain so that he could be afforded a new VA examination to address the current nature and severity of his disability consistent with the terms of the December 2020 memorandum decision. In particular, both the December 2020 memorandum decision and the June 2021 remand determined that the January 2018 VA examination report was insufficient to adjudicate the Veteran's claims because the examiner did not include assessments as to whether additional functional loss during flare-ups and after repeated use over time could be determined in degrees of range of motion. Although the Veteran was afforded a VA examination in November 2021, the Board finds that there has not been substantial compliance with the previous remand directives, and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In particular, although the examiner indicated that the Veteran denied flare-ups during the examination, such is inconsistent with the other evidence of record, and the examiner did not provide any explanation for this inconsistency. As noted above, during the January 2018 VA examinations, he reported flare-ups in his left hip disability, and proper evaluation of the Veteran's disability during flare-ups formed the basis of the December 2020 memorandum decision and the June 2021 remand. Therefore, to ensure compliance with the December 2020 memorandum decision and the June 2021 remand, and to ensure an adequate record upon which to decide the Veteran's claim, a remand is necessary so that he can be afforded a VA examination addressing the nature and severity of his left hip strain. On remand, the AOJ should associate with the record any updated VA treatment records that are not currently associated with the claims file. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent evidence. Special Monthly Compensation With regard to his claim for special monthly compensation, the Board finds that this issue is inextricably intertwined with his increased rating claims on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on the claim for the second issue). As such, the Board will defer consideration of that issue at this time. The matters are REMANDED for the following action: 1. Associate with the Veteran's claims file any VA treatment records dated from July 16, 2021, to the present. 2. Give the Veteran an additional opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 3. After obtaining all outstanding records, the Veteran should be scheduled for an appropriate VA examination to determine the current nature and severity of his service-connected left hip strain. The entire record must be made available to, and be reviewed by, the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. The examiner should take a history from the Veteran as to the progression of his disability. The examiner must address each of the following: a) The examiner should describe all symptoms associated with the Veteran's service-connected left hip strain. b) The examiner should conduct range of motion testing (expressed in degrees) in active motion, passive motion, weight-bearing, and nonweight-bearing. If pain is noted on range-of-motion testing, the examiner must specify at what point the Veteran's loss of range of motion was due to pain and at what point the evidence of pain ended. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary or feasible in this case, he or she should clearly explain why that is so. c) The examiner should ask the Veteran to report any range of motion loss during flare-ups or following repeated use. He should be asked to identify: (1) the frequency of flare-ups; (2) the duration of flare-ups; (3) any precipitating factors; and (4) any alleviating factors. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to flare ups and ask him to describe the additional functional loss include loss of range of motion, if any, he suffers during flare-ups or following repeated use. If the Veteran denies flare-ups, the examiner should reconcile this denial with the fact that he reported flare-ups during the January 2018 VA examination. d) If the examination does not occur during a flare-up or following repetitive use, based upon the evidence of record and the information elicited on examination, the examiner should estimate range of motion loss during a flare-up and/or after repetitive use, if any. If an estimate cannot be provided based on the information provided by the Veteran and the medical evidence available, the examiner should state so clearly and provide a detailed explanation as to whether such estimates would be unknowable to the medical community to any degree of medical certainty, in spite of such evidence. In addressing such inquiries, the examiner should take into consideration all of the evidence of record, to include medical records, the Veteran's lay statements, accepted medical principles, and objective medical findings. All examination findings/testing results, along with a complete, clearly stated rationale must be provided. 4. Thereafter, readjudicate the issues on appeal. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beach, Julia M. 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.