HYPERHIDROSIS

MICHAEL PAPPAS · 2019 · Case ID: A19003581

MIXED

Summary

The veteran, who served from February 1986 to November 2007, appeals the denial of service connection for an acquired psychiatric disorder (anxiety and depression) and a right hip disability, as well as the initial compensable evaluation for hyperhidrosis and left hip conditions. The Board granted a 30% rating for hyperhidrosis, finding the veteran's condition, as described in competent lay statements and private medical records, met the criteria for this rating due to excessive moisture affecting his ability to handle tools and paper, and unresponsiveness to therapy. The Board noted the evidence was in relative equipoise, resolving doubt in the veteran's favor for this specific issue. However, the claims for psychiatric disorder and right hip disability were remanded for additional development. The Board found that the VA had not adequately fulfilled its duty to assist by obtaining necessary VA examinations for these conditions. Specifically, for the psychiatric claim, the Board noted conflicting findings between prior VA decisions regarding anxiety and the need for a comprehensive psychiatric examination. For the right hip claim, the Board found the agent's argument for a positive nexus, aggravated by other service-connected conditions, warranted further development via a VA examination. The left hip conditions were also remanded for a VA examination to determine the current severity of impairment following surgery and to address functional loss during flare-ups, as per established legal standards.

Rationale

Evidence of record shows worsening hyperhidrosis.; Veteran's lay statements and private medical records describe difficulty handling tools and paper.; Condition unresponsive to therapy.; Evidence in relative equipoise, doubt resolved in veteran's favor.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

190524-9318

Full Decision Text

Citation Nr: A19003581
Decision Date: 12/16/19 Archive Date: 12/16/19

DOCKET NO. 190524-9318
DATE: December 16, 2019

ISSUES

1. Entitlement to an initial compensable evaluation for hyperhidrosis.

2. Entitlement to service connection for an acquired psychiatric disorder, variously claimed as anxiety and depression.

3. Entitlement to service connection for a right hip disability, variously claimed as secondary to service-connected left hip, toes, lower back, and bilateral leg disability.

4. Entitlement to a compensable evaluation for thigh, limitation of extension, left hip.

5. Entitlement to an increased rating in excess of 10 percent for thigh, impairment of, left hip.

6. Entitlement to a compensable evaluation for degenerative joint disease (DJD), left hip, with femoroacetabular impingement, and limitation of flexion.

ORDER

Entitlement to a 30 percent initial rating for hyperhidrosis, but no higher, is granted.

REMANDED

Entitlement to service connection for an acquired psychiatric disorder, variously claimed as anxiety and depression is remanded.

Entitlement to service connection for a right hip disability, variously claimed as secondary to service-connected left hip, toes, lower back, and bilateral leg disability is remanded.

Entitlement to a compensable evaluation for thigh, limitation of extension, left hip is remanded.

Entitlement to an increased rating in excess of 10 percent for thigh, impairment of, left hip is remanded.

Entitlement to a compensable evaluation for degenerative joint disease (DJD), left hip, with femoroacetabular impingement, and limitation of flexion is remanded.

FINDING OF FACT

Hyperhidrosis is manifested by excessive moisture making it difficult to grasp and manipulate hand tools, write and work with pens, pencils, and paper, and unresponsiveness to therapy.

CONCLUSION OF LAW

The criteria for an initial 30 percent rating for hyperhidrosis, but no higher, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.118, 4.3 Diagnostic Code 7832 (2018).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 1986 to November 2007.

This matter is before the Board of Veterans Appeals (Board) on appeal from a May 2019 Appeals Modernization Act (AMA) rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The rating decision considered the evidence of record on that date. The Veteran timely appealed this decision to the Board by requesting the AMA Direct Review lane for a reevaluation of the evidence considered by the Agency of Original Jurisdiction (AOJ).

In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. The Board has recharacterized the appeal as encompassing the issue regarding claimed anxiety and depression on the title page. There has been no prejudice to the Veteran in this regard.

By way of procedural history, as a result of the enactment of the Veterans Appeals Improvement and Modernization Act of 2017 (Public Law 115-55), the Department of Veterans Affairs is required to change its current appeals process. Under the authority of Public Law 115-55, VA created the Rapid Appeals Modernization Program (RAMP) to provide Veterans with the earliest possible resolution of their claims. On September 7, 2018, the Veteran elected the modernized review system by selecting the supplemental claim review option. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). In the AMA rating decisions, the AOJ found several favorable findings. The Board is bound by these favorable findings. See 84 Fed. Reg. 138, 167 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.104(c)).

Next, on February 14, 2019, the Veteran through his agent elected “Higher-Level Review” based upon the evidence of the record at the time of the prior decision.

Months later, on May 24, 2019, the Veteran through his attorney submitted a VA Form 10182, Decision Review Request: Board Appeal
at 38 C.F.R. § 19.2(d)). In the AMA rating decisions, the AOJ found several favorable findings. The Board is bound by these favorable findings. See 84 Fed. Reg. 138, 167 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 3.104(c)).

Next, on February 14, 2019, the Veteran through his agent elected “Higher-Level Review” based upon the evidence of the record at the time of the prior decision.

Months later, on May 24, 2019, the Veteran through his attorney submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). By way of this document and its provisions, this case is now before the Board. The Veteran through his agent elected “Direct Review” review by the Board. The Board may only review those issues properly on appeal and the related evidence from before the Veteran elected higher level review. The Veteran declined a Board hearing.

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018).

The Veteran through is agent raised several duty to assist errors, namely in obtaining VA examinations after he submitted private medical evidence demonstrating their necessity. This is discussed in more detail below as it pertains to each issue on appeal.

The Veteran in this case has not referred to any other deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

Entitlement to an initial compensable evaluation for hyperhidrosis

Hyperhidrosis is currently assigned a noncompensable evaluation pursuant to the schedule of ratings for the skin. 38 C.F.R. § 4.118, DC 7832 (2018).

Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment
.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21.

Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability rating has not been previously staged. As discussed below, a uniform evaluation is still warranted.

Under DC 7832, hyperhidrosis is assigned a noncompensable rating if the Veteran is able to handle paper or tools after therapy. A 30 percent rating is appropriate if the Veteran is unable to handle paper or tools because of moisture, and is unresponsive to therapy. 38 C.F.R. § 4.118, DC 7832 (2018).

The Veteran contends that he is entitled to an initial compensable evaluation for hyperhidrosis.

By way of background, on July 9, 2018 VA received private treatment records dated July 3, 2018 from Dermatology Consultants. They show impressions of dripping sweat that is affecting work. Upon clinical examination there was an impression of excessive perspiration – glistening or dripping sweat on the face, palms, and soles.

Next, on July 17, 2018, the Veteran was afforded a VA dermatological examination. Hyperhidrosis was identified. The Veteran reported that he is unable to use hand tools and that writing on paper is very hard. Notably, the Veteran had not been treated with oral or topical medications within the past 12 months. However, the VA examiner indicated that the Veteran would be able to handle paper or tools after treatment. The VA examiner opined that the skin conditions do not impact the Veteran’s ability to work.

Two days later, on July 19, 2018, VA received a lay statement from the Veteran concerning hyperhidrosis. It shows that the condition is getting worse. The Veteran works at a school, and when he is finished correcting papers, the paperwork is saturated from his sweaty palms. He is unable to work with hand tools because his sweaty palms make it nearly impossible to use them properly. He can’t even use a simple screwdriver because the sweaty palms make it impossible to turn. His feet are just as bad. He continuously changes his socks because of his wet feet. This is causing foot problems with the bottom of his feet, in addition to ruining his shoes.

On October 5, 2018, VA received a Notice of Disagreement (NOD) from the Veteran’s agent. It specifies that a 30 percent evaluation for hyperhidrosis was being sought. The agent attached new medical evidence and avers that the evidence is in relative equipoise. He argues that he should be afforded reasonable doubt under 38 C.F.R. § 3.102.

Also on October 5, 2018, VA received an October 2, 2018 private treatment record from Dermatology Consultants. It shows impressions of dripping sweat, with an effect on the Veteran’s work and social life. It is very difficult to work with the degree of sweat. The Veteran had difficulty working with paper and writing with pens and pencils due to excessive moisture. He is using glycopyrrolate with no response. He tried iontophoresis in the past. The impression shows that hyperhidrosis is “worsening.” The physician described, “This degree of sweating causes great difficulty working with hands on a daily basis. Excessive moisture makes it difficult to grasp and manipulate hand tools, write and work with pens, pencils, and paper. Unresponsive previously prescribed/typical therapies. Currently major effect on quality of life and daily functioning.”

On
effect on the Veteran’s work and social life. It is very difficult to work with the degree of sweat. The Veteran had difficulty working with paper and writing with pens and pencils due to excessive moisture. He is using glycopyrrolate with no response. He tried iontophoresis in the past. The impression shows that hyperhidrosis is “worsening.” The physician described, “This degree of sweating causes great difficulty working with hands on a daily basis. Excessive moisture makes it difficult to grasp and manipulate hand tools, write and work with pens, pencils, and paper. Unresponsive previously prescribed/typical therapies. Currently major effect on quality of life and daily functioning.”

On May 24, 2019, the Veteran through his agent filed his VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) for the issues currently before the Board. He selected the “Direct Review” docket. He avers that two “testimonials” submitted on February 26, 2019 should also be favorably considered. However, as explained in the May 22, 2019 rating decision:

Please note: The evidentiary record closed upon receipt of your election for higher-level review. VA received additional evidence after your election that was not considered as part of this decision. If you would like VA to consider this evidence, you may submit a supplemental claim at any time; however, VA must receive your application within one year of the date of notice of this decision to preserve your right to receive the maximum possible benefit.

Therefore, no further discussion of any evidence received after this election date for higher level review on February 14, 2019 is warranted.

The Veteran asserts that he is entitled to an increased rating for hyperhidrosis, which is currently assigned a noncompensable rating under Diagnostic Code 38 C.F.R. § 4.118, DC 7832 (2018). Hyperhidrosis is assigned a noncompensable percent rating. The noncompensable evaluation contemplates the ability to handle paper and the ability to handle tools. In order to have a higher evaluation, the Veteran must be unable to handle paper or tools because of moisture, and unresponsive to therapy. As described below, the most probative evidence shows that the Veteran experiences more severe impairment that is most closely summarized by an increased evaluation of 30 percent.

The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report symptoms of sweating, inability to grip pens and tools, and whether therapeutic medications have alleviated the excessive moisture on his palms and feet. The Veteran is also competent to report his medical history, including what he has been told by his physician. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Here, the most probative evidence are the private treatment records from October 2018, presenting a detailed picture of the Veteran’s hyperhidrosis. They show that it is worsening. He has difficulty working with tools, pens, paper, and pencils. It is affecting his work. Hyperhidrosis has been unresponsive to therapy. Taken individually, there may be some question whether there is significant impairment or total impairment of the use of any tool or writing implement. However, considering the evidence collectively, the clinical assessments from the private physician and lay statement from the Veteran demonstrate an increase in severity. The Veteran’s disability picture for hyperhidrosis is most closely approximated by an increased 30 percent rating based upon excessive moisture making it difficult to grasp and manipulate hand tools, write and work with pens, pencils, and paper, and unresponsiveness to therapy. See 38 C.F.R. § 4.118, DC 7832 (2018). Indeed, the Veteran’s July 19, 2018 lay statements are competent and consistent with these findings. He describes difficulty completing his duties in his career as a high school teacher, in addition to an inability to use tools,
However, considering the evidence collectively, the clinical assessments from the private physician and lay statement from the Veteran demonstrate an increase in severity. The Veteran’s disability picture for hyperhidrosis is most closely approximated by an increased 30 percent rating based upon excessive moisture making it difficult to grasp and manipulate hand tools, write and work with pens, pencils, and paper, and unresponsiveness to therapy. See 38 C.F.R. § 4.118, DC 7832 (2018). Indeed, the Veteran’s July 19, 2018 lay statements are competent and consistent with these findings. He describes difficulty completing his duties in his career as a high school teacher, in addition to an inability to use tools, such as a screwdriver.

Turning to the July 17, 2018 VA examination results, to the extent they show that this does not affect the Veteran’s ability to use tools or work, this stands in contrast to the weight of the Veteran’s competent lay reports regarding such difficulty. The examination also does not acknowledge any therapy or related medications. The later private treatment records clearly show that therapies have been attempted and the condition was unresponsive. This is one of the enumerated criteria for an increased rating. Furthermore, we note that the October 5, 2018 private treatment record shows the possibility of a referral for surgery if the worsening persists and it remains unresponsive to treatment.

At the very least, the evidence of record is in relative equipoise as to the severity of the Veteran’s hyperhidrosis. The Veteran, his agent, and the private physician have all unambiguously described a “worsening.” The degree of worsening and resulting impairment is the remaining issue in question. The Veteran has consistently reported ongoing impairment holding writing utensils and tools, and the treatment records show unresponsiveness to treatment. The Board has no reason to doubt the accuracy of his assertions. Indeed, even if any doubt exists, the benefit accrues to the Veteran. See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The evidence demonstrates that hyperhidrosis is manifested by such symptoms as excessive moisture making it difficult to grasp and manipulate hand tools, write and work with pens, pencils, and paper, and unresponsiveness to therapy. Therefore, we find that an increased initial evaluation of 30 percent, but no higher, for hyperhidrosis is warranted. As the Veteran’s authorized representative stated in the October 5, 2018 Notice of Disagreement that a 30 percent rating was the percentage evaluation sought, this is considered a full grant of the benefit being sought, and consideration of a higher rating is not for application.

Neither the Veteran nor his agent has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

REASONS FOR REMAND

A remand is necessary for additional development based on VA’s duty to assist prior to the AOJ decision.

1. Entitlement to service connection for an acquired psychiatric disorder, variously claimed as anxiety and depression is remanded.

The Board incorporates its discussion from the sections above by reference.

As a threshold matter, the RO issued a favorable finding in the February 2019 rating decision that shows that “Service Treatment Records show an examination conducted on June 25, 2007, noting you reported anxiety at times with sweating palms.” The May 2019 findings also include, “You have been diagnosed with a disability. Dr. [B.] note dated August 13, 2008 confirms a mental health diagnosis.”

By way of procedural history, the June 19, 2018 NOD shows that the Veteran should have been afforded a comprehensive VA psychiatric examination. The need for this examination should have been based in part on an opinion by a treating physician, and because of the Veteran’s own lay reported feelings of depression and anxiety.

Next, the Veteran submitted a February 14, 2019 Brief to the RO as part of his request for higher level review under RAMP. It shows that the Veteran previously argued in the June 19, 2018 NOD that the Veteran be afforded a VA examination. His agent avers that the potential nexus has never adequately been developed per the VA C.F.R. and VCAA duty to assist.

The May 24, 2019 Brief echoes these same duty to assist arguments, and his agent repeated his request
comprehensive VA psychiatric examination. The need for this examination should have been based in part on an opinion by a treating physician, and because of the Veteran’s own lay reported feelings of depression and anxiety.

The May 24, 2019 Brief echoes these same duty to assist arguments, and his agent repeated his request for a VA psychiatric examination. He concludes, “In summation, it is this POA’s opinion that this decision was nothing more than a DROC ‘rubber stamp’ of denials that were not properly reviewed, developed and decided.”

Indeed, the AMA provides that remands are warranted based on VA’s duty to assist prior to the AOJ decision. Pub. L. No. 115-55, § 2(d)(2). The AMA structure allows remand only where VA has committed error in the duty-to-assist (DTA) prior to the decision on appeal. After a thorough review of the record, the Board finds the arguments of the Veteran’s agent to be compelling. In requesting additional development on remand in this case, the Board notes that the basis for this remand arises from deficiencies in the record existing prior to the appealed AMA decision. The Board additionally observes the Veteran is competent to report feelings of anxiety and low mood. Here, the Agency of Original Jurisdiction (AOJ) had evidence of disability and should afford the Veteran a VA psychiatric examination. Therefore, a remand is necessary to ensure due process is followed and so that there is a complete record upon which to decide the Veteran’s claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

Lastly, the Board observes that the February 2019 and May 2019 rating decisions vary in their assessments. The May 2019 higher level review rating decision shows no diagnosis of or treatment for anxiety in the in the Service Treatment Records (STRs). In contrast, the February 2019 rating decision had found that a June 25, 2007 examination in the STRs shows reports of anxiety at times with sweating palms. Nevertheless, the May 2019 rating decision shows a favorable finding of a subsequent mental health diagnosis. The Board highlights this for the RO’s consideration.

2. Entitlement to service connection for a right hip disability, variously claimed as secondary to service-connected left hip, toes, lower back, and bilateral leg disability is remanded.

The Board incorporates its discussion from the sections above by reference.

Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310 (b).

By way of background, the February 14, 2019 Brief shows that the Veteran’s agent contends that there is a positive nexus for the right hip. He explains, “Specifically, the right hip is at least as likely as not aggravated per over compensating for the left hip, toes, low back and bilateral leg condition. Also the irregular gait has aggravated the right hip. VA should allow for a CP exam for an as likely as not nexus.”

The Board observes private treatment records from Health Partners Clinic were received by VA on May 4, 2018. Imaging dated March 27, 2018 shows an impression of, “Mild degenerative changes of the right hip. No fracture or dislocation.” Additional private treatment records show evidence of right hip disability. The issue remains a nexus.

The May 2019 rating decision shows evidence of a right hip disability. It shows, “You have been diagnosed with a disability. Dr. [W.] note dated July 2, 2018 confirms the diagnosis of a right hip condition.” It does not show a consideration of secondary service connection.

The May 24, 2019 Brief shows in part, “Per the argument made in my AMA higher level review (HLR) dated 2/14/19, it is reiterated that the VARO should
8 shows an impression of, “Mild degenerative changes of the right hip. No fracture or dislocation.” Additional private treatment records show evidence of right hip disability. The issue remains a nexus.

The May 24, 2019 Brief shows in part, “Per the argument made in my AMA higher level review (HLR) dated 2/14/19, it is reiterated that the VARO should have developed further w/a CP exam/opinion for the reasons given and the noted medical new/relevant evidence should have been medically reconciled by a CP examiner. A specific plausible and yet to be reconciled nexus was argued, which has yet to be addressed by the VARO.”

Once again, the Board observes the AMA provides that remands are warranted based on VA’s duty to assist prior to the AOJ decision. Pub. L. No. 115-55, § 2(d)(2). The AMA structure allows remand only where VA has committed error in the duty-to-assist (DTA) prior to the decision on appeal. After a thorough review of the record, the Board finds the arguments of the Veteran’s agent to be compelling, notably given the evidence of a disability and the medical complexity of the additional secondary service connection theory of entitlement. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Therefore, a remand for the requested VA examination is necessary to ensure due process is followed and that there is a complete record upon which to decide the Veteran’s claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

3. Entitlement to a compensable evaluation for thigh, limitation of extension, left hip is remanded.

4. Entitlement to an increased rating in excess of 10 percent for thigh, impairment of, left hip is remanded.

5. Entitlement to a compensable evaluation for degenerative joint disease (DJD), left hip, with femoroacetabular impingement, and limitation of flexion is remanded.

The Board incorporates its discussion from the sections above by reference.

The most recent May 2019 higher level review rating decision shows favorable findings that include, “You have been diagnosed with a disability. VA examination dated March 28, 2018 confirms the diagnosis of a left hip condition.” It also lists several ongoing private treatment records confirming the diagnosis of a left hip disability. The issue before us concerns the severity of left hip impairment rather than just the diagnosis, so we will focus on the Veteran’s specific contentions on appeal.

First, a March 28, 2018 VA Non-Degenerative Arthritis and Dysbaric Osteonecrosis Disability Benefits Questionnaire (DBQ) shows a finding of degenerative arthritis. A contemporaneous VA Hip and Thigh DBQ shows an impression of, “Degenerative joint disease, left hip, with femoroacetubular impingement.” Regarding repeated use over time, the VA examiner indicated that, “The examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time.” Regarding whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time, the VA examiner was unable to say without mere speculation. The VA examiner described, “It is not possible to determine, without resorting to mere speculation, to estimate loss of range of motion, because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions.”

On January 23, 2019, VA received additional private treatment records status post December 26, 2018 left hip total arthroplasty. There was an impression of left hip pain.

In the February 14, 2019 Brief, the Veteran’s agent asserts, “Left hip condition including the left thigh, limited extension and DJD. The VSR failed to recognize and reconcile new/relevant medical evidence that was sent to the VA and as noted in VBMS in June 2018 w/the NOD, July 2018 and late January 2019. As also claimed, was the left hip surgery and potential temporary 100%.”

The Veteran reiterated these same arguments in the May 24, 2019 Brief attached to the VA Form
received additional private treatment records status post December 26, 2018 left hip total arthroplasty. There was an impression of left hip pain.

The Veteran reiterated these same arguments in the May 24, 2019 Brief attached to the VA Form 10182. It shows in part, “[T]he DRO did not fully reconcile all the medical evidence submitted to the VA and also, all medical evidence was not fully medically reconciled by a physician via CP exam. It is requested that the ALJ determine that based on the evidence of record along w/the surgery that entailed, a higher rating is warranted.”

Here, there is medical evidence of a significant change in the Veteran’s disability picture as it relates to the left hip disability during the appeals period, prior to the February 14, 2019 RAMP request for higher level review under the AMA. The Veteran contends in part that, “all medical evidence was not fully medically reconciled by a physician via CP exam.” The AMA provides that remands are warranted based on VA’s duty to assist prior to the AOJ decision. Pub. L. No. 115-55, § 2(d)(2). This is also a subject requiring medical expertise, as highlighted by the Veteran’s agent. See Colvin, supra. Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect. 38 C.F.R. § 3.327. Therefore, a VA examination to determine the current severity of his left hip disability is warranted to ensure due process is followed and that there is a complete record upon which to decide the Veteran’s claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

Second, with respect to the March 28, 2018 VA examination, the Board observes that Sharp v. Shulkin, 29 Vet. App. 26 (2017) addressed the adequacy of a VA examiner’s opinion concerning additional functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner must “[E]licit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why [he or] she c[an] not do so.” Sharp, 29 Vet. App. at 35. On remand, all necessary information required by Sharp should be considered.

Lastly, the Board observes that the evidentiary record closed upon receipt of the Veteran’s election for higher-level review. If the Veteran would like VA to consider additional evidence from after this election that was not considered as part of the original rating decision, he may submit a supplemental claim.

The matters are REMANDED for the following action:

1. Please schedule the Veteran for a VA examination to determine the nature and etiology of any acquired psychiatric disorder, variously claimed as anxiety and depression. The claims file should be made available to the VA examiner.

For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service.

The examiner should provide a rationale for all opinions expressed.

2. Please schedule the Veteran for a VA examination to determine the nature and etiology of any right hip disability. The claims file should be made available to the VA examiner.

The VA examiner should also opine whether any diagnosed right hip disability is proximately
to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran’s active military service.

The examiner should provide a rationale for all opinions expressed.

2. Please schedule the Veteran for a VA examination to determine the nature and etiology of any right hip disability. The claims file should be made available to the VA examiner.

The VA examiner should also opine whether any diagnosed right hip disability is proximately due to, the result of, or aggravated by the Veteran’s service-connected disabilities, including any aggravation by over compensating for the left hip, toes, low back, and bilateral leg conditions.

The examiner should provide a rationale for all opinions expressed.

3. Please schedule the Veteran for a VA examination by an appropriate examiner to determine the current degree of severity of his service-connected thigh, limitation of extension, left hip; thigh, impairment of, left hip; and degenerative joint disease (DJD), left hip, with femoroacetabular impingement, and limitation of flexion.

Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner should record the results of range-of motion testing for pain, in degrees, on both active and passive motion and in weight-bearing and non-weight bearing for the left hip. If any, the extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner.

Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner must also attempt to elicit information from the Veteran regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the hip disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living.

Attention is invited to private treatment records received on January 23, 2019 showing status post December 26, 2018 left hip total arthroplasty. To the extent possible, please comment on any changes in the severity of impairment surrounding this surgery.

A complete rationale should be provided for all opinions expressed.

Michael A. Pappas

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board B. Bodi, 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.

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