Citation Nr: A25035189 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240725-460709 DATE: April 16, 2025 ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for left hip arthritis. 2. Entitlement to an initial disability rating in excess of 10 percent for right hip arthritis. 3. Entitlement to an initial disability rating in excess of 10 percent for left hip limitation of flexion. 4. Entitlement to an initial disability rating in excess of 10 percent for right hip limitation of flexion. 5. Entitlement to an initial compensable disability rating for left hip limitation of extension. 6. Entitlement to an initial compensable disability rating for right hip limitation of extension. REMAND ORDER Entitlement to an initial disability rating in excess of 10 percent for left hip arthritis is REMANDED. Entitlement to an initial disability rating in excess of 10 percent for right hip arthritis is REMANDED. Entitlement to an initial disability rating in excess of 10 percent for left hip limitation of flexion is REMANDED. Entitlement to an initial disability rating in excess of 10 percent for right hip limitation of flexion is REMANDED. Entitlement to an initial compensable disability rating for left hip limitation of extension is REMANDED. Entitlement to an initial compensable disability rating for right hip limitation of extension is REMANDED. FACTUAL AND PROCEDURAL HISTORY The Veteran served on active duty in the Armed Forces from December 1965 until December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2024 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In the July 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. On August 12, 2024, a notification letter was sent to the Veteran advising that a hearing was scheduled. On October 30, 2024, the hearing was withdrawn by the Veteran's representative. Therefore, the Board may only consider the evidence of record at the time of the March 2024 rating decision on appeal, as well as any evidence submitted by the Appellant within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the RO issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801. However, because the Board is remanding the claims, any evidence the Board could not consider will be considered by the RO in the readjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). The Board has reviewed all evidence of record regardless of whether it is discussed in detail in the Decision. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (holding the Board must only discuss the evidence which is relevant to the issues on appeal). REASONS FOR REMAND I. Bilateral Hip Arthritis and Limitation of Motion The Veteran seeks an increased rating for his bilateral hip disabilities. Currently, for each hip, he is in receipt of three separate ratings: a 10 percent rating for arthritis; a 10 rating for limitation of flexion; and a noncompensable rating for limitation of extension. During the relevant appeal period, the Veteran was afforded a single VA examination in February 2024. At that time, his diagnosis of bilateral hip osteoarthritis was confirmed, and he reported current symptoms of pain and limited range of motion in his hips bilaterally. He stated that he treated his symptoms with meloxicam, topical ointment, and injections every four to five months. He reported flare ups daily while getting out of bed with moderate pain until his medications took effect. The Veteran described functional impairment during a flare up and with repeated use over time, consisting of difficulty crossing legs, stooping, squatting, bending at the waist, and an inability to walk more than three hundred yards. The examiner provided initial range of motion measurements and found that pain was noted on examination which would cause functional loss in flexion, extension, abduction, adduction, and external and internal rotation. The examiner also found with repeated use over time or during a flare up, limitation in adduction would prevent the Veteran from crossing his legs. Despite the Veteran's statements about increased functional impairment with repeated use over time and during a flare up, and the finding by the examiner that the Veteran would be unable to cross his legs during a flare-up due to limitation in adduction, the examiner found that the procured evidence did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination would limit functional ability with repeated use over time. The examiner did not provide any estimations of range of motion limitations with repeated use over time or during a flare up. There was no explanation given by the examiner which would have supported the omission. The Board finds that the February 2024 VA examination is inadequate for rating purposes, as it is internally inconsistent and does not provide an estimation of range of motion limitations during a flare-up or with repeated use over time. See Sharp v. Shulkin, 26 Vet. App. 26 (2017) (holding that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss during flare-ups in terms of degrees could not be given). Remand is necessary to obtain a VA examination sufficient for rating purposes that clarifies whether the Veteran experiences loss of range of motion during flare-ups or with repeated use over time based on his lay statements of limitations with repeated use over time. Sharp, 29 Vet. App. at 34-36; Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Additionally, despite the Veteran's statements regarding an inability to cross his legs, and an inability to walk far due to his hips during flare-ups, the examiner found no evidence of ankylosis. In Chavis v. McDonough, 34 Vet. App. 1 (2021), the Court held that the application of 38 C.F.R. §§ 4.40 and 4.45 permits consideration of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis, in other words, "if it is the functional equivalent of ankylosis." Thus, there remains a medical ambiguity as to whether the Veteran's functional limitations as found in the record are the functional equivalent of ankylosis and the RO should have clarified this ambiguity prior to issuing a final rating decision, a pre-decisional duty-to-assist error. Remand is, therefore, appropriate to correct these errors. 38 C.F.R. § 20.802(a). While the Board is remanding this matter to obtain adequate VA opinions, the Board is mindful of the holding in Smith v. Wilkie, 32 Vet. App. 332 (2020) and the impact of implicit credibility determinations within remand orders. The Board does not at this time make any determinations regarding the credibility of any evidence currently of record, to include those described in this remand. The matter is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with an appropriate clinician to clarify the severity of his service-connected bilateral hip disabilities during the period on appeal. The entire claims file, and this remand decision, should be made available to, and reviewed by, the examiner. Any indicated studies should be performed. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's bilateral hip disability under the rating criteria. To the extent possible, the examiner should test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly state and explain why. The examiner should estimate any functional loss in terms of additional degrees of limited motion experienced during flare-ups and after repetitive use over time, based on the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time, or explain why they cannot. In so doing, the examiner must review past examination reports and other relevant evidence in the file as well as attempt to elicit information from the Veteran regarding his functional limitations, to include any functional loss on repetitive motion or during flare-ups and opine on whether the described functional loss is the functional equivalent of ankylosis. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Thorough rationales should be provided for any opinion or explanation rendered. STEVEN V. ADLER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.