Citation Nr: 22051202 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 13-29 478 DATE: September 8, 2022 REMANDED An initial rating higher than 20 percent for the lumbar spine disability prior to March 17, 2014, is remanded. A rating higher than 40 percent for the lumbar spine disability from March 17, 2014, is remanded. An initial rating higher than 10 percent for right hip bursitis based on limitation of extension is remanded. An initial rating higher than 10 percent for left hip bursitis based on limitation of extension is remanded. An initial compensable rating for right hip bursitis based on limitation of flexion is remanded. An initial compensable rating for left hip bursitis based on limitation of flexion is remanded. REASONS FOR REMAND The Veteran had active duty service from August 2004 to August 2012. These matters come before the Board of Veterans Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in October 2012. A transcript of the Veteran's April 2016 testimony at a videoconference hearing before the undersigned Veterans Law Judge is of record. The claims were remanded by the Board in December 2017 and March 2020. The Board issued a decision in November 2020 which, in pertinent part, granted a 40 percent rating for the lumbar spine disability effective March 17, 2014, and denied the claims for an initial rating higher than 20 percent for the lumbar spine disability prior to March 17, 2014; an initial rating higher than 10 percent for left hip bursitis based on limitation of extension; an initial rating higher than 10 percent for right hip bursitis based on limitation of extension; an initial compensable rating for left hip bursitis based on limitation of flexion; and an initial compensable rating for right hip bursitis based on limitation of flexion. The Veteran appealed the Board's November 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2021 Joint Motion for Partial Remand, the parties requested that the Court vacate the November 2020 Board decision that denied entitlement to an initial rating higher than 20 percent for the lumbar spine disability prior to March 17, 2014; a rating higher than 40 percent for the lumbar spine disability from March 17, 2014; initial ratings higher than 10 percent for left and right hip bursitis based on limitation of extension; and initial compensable ratings for left and right hip bursitis based on limitation of flexion. In a November 2021 Order, the Court granted the Joint Motion. The Board remanded the claims in March 2022. 1. An initial rating higher than 20 percent for the lumbar spine disability prior to March 17, 2014, is remanded. 2. A rating higher than 40 percent for the lumbar spine disability from March 17, 2014, is remanded. 3. An initial rating higher than 10 percent for right hip bursitis based on limitation of extension is remanded. 4. An initial rating higher than 10 percent for left hip bursitis based on limitation of extension is remanded. 5. An initial compensable rating for right hip bursitis based on limitation of flexion is remanded. 6. An initial compensable rating for left hip bursitis based on limitation of flexion is remanded. The examinations requested in the Board's March 2022 remand were scheduled in June 2022 but cancelled at the Veteran's request. Her representative asserts that the Veteran was unable to attend the examinations based on her travel at the time of the scheduled examinations and that she is now ready to attend any scheduled examinations, preferably in Nevada where she is now living. Any updated VA treatment records should also be obtained. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records dated since February 2022 from the facilities in Washington and Nevada. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of her lumbar spine disability. Range of motion testing should be undertaken and should be tested actively and passively, in weight bearing and nonweight-bearing, and after repetitive use. The examiner should state whether there is likely to be additional range of motion loss due to flare-ups and due to pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If any requested testing is determined to be infeasible, the examiner must provide an explanation as to why that determination was made. 3. Schedule the Veteran for a VA examination to determine the current nature and severity of the bilateral hip disabilities. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported. Range of motion testing should be undertaken and should be tested actively and passively, in weight bearing and nonweight-bearing, and after repetitive use. The examiner should state whether there is likely to be additional range of motion loss due to flare-ups and due to pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If any requested testing is determined to be infeasible, the examiner must provide an explanation as to why that determination was made. 4. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Van Wambeke, 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.