Citation Nr: 22044503 Decision Date: 08/04/22 Archive Date: 08/04/22 DOCKET NO. 17-48 590 DATE: August 4, 2022 REMANDED A compensable rating for a right hip disability with thigh impairment prior to September 28, 2016, and in excess of 10 percent thereafter, is denied. A higher rating in excess of 10 percent for degenerative joint disease of the right hip with limitation of flexion is denied. An initial compensable rating for limitation of extension of the right hip is denied. Service connection for hearing loss, to include under the provisions set forth in 38 U.S.C. § 1151. A higher rating in excess of 10 percent for service-connected status post cholecystectomy and its residuals. A compensable rating for status post open cholecystectomy scar. A total disability rating based on individual unemployability (TDIU) prior to March 29, 2019. Special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(k), on the basis of deafness of both ears, is denied. SMC pursuant to 38 U.S.C. § 1114(l), on the basis of regular need for aid and attendance, is denied. SMC pursuant to 38 U.S.C. § 1114(s), either statutorily or on the basis or housebound status, is denied. REASONS FOR REMAND The Veteran served on active duty from May 1974 to May 1977, from March 2004 to May 2005, and from May 2010 to October 2010. The Veteran had additional service with the Louisiana Army National Guard until October 2015. The case is on appeal from June 2014, October 2014, October 2016, August 2017, and August 2020 rating decisions. The case was most recently before the Board in July 2019. At that time, the Board denied a higher rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) for the period prior to March 28, 2019, and granted a 70 percent rating for PTSD thereafter. The Veteran did not appeal the Board's decision and the decision became final. 38 C.F.R. § 20.1100. The Board also remanded the claims for increase ratings for right hip disabilities and the issue of a TDIU for further development and adjudication. While on remand status, in an August 2020 rating decision, the RO granted entitlement to a TDIU effective March 29, 2019. As the effective date corresponds only to part of the appeal period for the underlying increase claims, the issue of a TDIU for an earlier period remains on appeal. Harper v. Wilkie, 30 Vet. App. 356 (2018). REASONS FOR REMAND 1. A compensable rating for a right hip disability with thigh impairment prior to September 28, 2016, and in excess of 10 percent thereafter, is denied. 2. A higher rating in excess of 10 percent for degenerative joint disease of the right hip with limitation of flexion is denied. 3. An initial compensable rating for limitation of extension of the right hip is denied. Issues 1-3 are remanded for a new VA examination. The last VA examination for these disabilities was conducted in February 2020. Thereafter, additional VA medical records were added to the file. Those records indicate that the Veteran's disability may have undergone a material worsening since the last VA examination. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of right hip disabilities. 4. Service connection for hearing loss, to include under the provisions set forth in 38 U.S.C. § 1151. 5. A higher rating in excess of 10 percent for service-connected status post cholecystectomy and its residuals. 6. A compensable rating for status post open cholecystectomy scar. 7. A total TDIU prior to March 29, 2019. 8. SMC on the basis of deafness of both ears. 9. SMC on the basis of regular need for aid and attendance. 10. SMC on the basis or housebound status. In March 2022, the Board sent a letter to the Veteran indicating that subsequent to a March 2020 SOC, additional records were associated with his claims file. The Board informed the Veteran that as this evidence was not previously considered in the first instance by the RO, prior to a Board decision, he had the right to request an initial review of such evidence by the RO or waive this right for the Board to consider this evidence in the first instance. In an April 2022 response, the Veteran elected to have his appeal returned to the RO for consideration of this evidence in the first instance. The Veteran specifically elected the option indicating to "remand [his] case back to the [RO] for review of the additional evidence that was submitted in [his] appeal." See April 4, 2022 Additional Evidence Response Form. As a result, the Board will remand the claims to the RO to consider the new evidence. See 38 C.F.R. § 20.1304 (c). With respect to the claim for a TDIU, as previously noted, the issue of a TDIU prior to March 29, 2019, remains on appeal pursuant to Harper, 30 Vet. App. 356. The Board notes that prior to March 29, 2019, the Veteran does not meet the schedular criteria for a TDIU under to 38 C.F.R. § 4.16(a) (one disability alone rated at 60 percent or two or more disabilities with a combined rating of 70 percent, with at least one disability rated at 40 percent). Notwithstanding, as the Board is remanding to the RO the increase rating claims for status post cholecystectomy and associated scar for initial consideration of evidence received subsequent to the March 2020 SOC, and since the readjudication of those claims could potentially affect the issue of a TDIU, the claim is inextricably intertwined with those being remanded. Accordingly, the issue of a TDIU prior to March 29, 2019, must be remanded as well prior to its adjudication on the merits. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following actions: (Continued on the next page) 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right hip disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 2. Readjudicate the Veteran's all remanded claims, including those involving service connection for hearing loss, increase rating claims for residuals of status post cholecystectomy, to include its associated scar, SMC claims and a TDIU prior to March 29, 2019, with full consideration of all evidence received since the March 2020 statement of the case (SOC). If the benefits sought are not granted in full, issue an SSOC and return the case to the Board for further appellate consideration, if in order. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan, Associate 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.