Facts Of Case
The Veteran served in the Army during the Gulf War Era between 1998 and 2004. He developed hip pain after the rigors of being a paratrooper with over 50 jumps during active duty military service. He dealt with the pain for years, just like many veterans. But in 2018, he finally filed a claim for his hips after he had been officially diagnosed after years of pain. The Veteran filed a claim for his left hip, to include: femoral acetabular impingement syndrome with synovial herniations causing left hip limitation of extension and flexion.
In November of 2018, Appellant underwent a VA medical examination for his left hip. At the time of the examination, Appellant's complaints indicated functional loss due to flares. Appellant reported that "if I have heavy use of my left hip or I step wrong it feels like [my hip] pops out of joint or hits on something. It's just pain." Appellant also reported that he experienced "sharp pain" whenever he "pivoted wrong." Further he reported his pain "increased with activity" including "going up and down ladders." Additionally, Appellant reported that during flares he was unable to "lay on his left side," and that his flares could last up to a week." His pain interfered with his ability to work.
The VA examiner noted that he could not determine whether "pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups" without resorting to "mere speculation." However, the only rationale the examiner provided was that the examination was "not being conducted during a flareup and thus range of motion measurements would be mere speculation."
The VA provided the Veteran with a lowball rating for his left hip, which did not reflect his true limitations. The Veteran appealed his rating to correct the error.
Alex Argued that the VA Examiner Failed to Estimate Functional Loss Due to Flares
The law says that an adequate medical examination requires VA examiners to use the evidence of record to estimate functional loss due to flares or explain why they are unable to estimate functional loss. See Sharp v. Shulkin, 29 Vet.App. 26, 34-35 (2017) (finding a medical examination inadequate because “the VA examiner did not elicit 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 she could not do so”).
Moreover, when an examiner refuses to offer a medical opinion, the refusal must be based on “a lack of knowledge among the ‘medical community at large' and not the insufficient knowledge of the specific examiner.” Sharp, 29 Vet.App. at 36 (quoting Jones v. Shinseki, 23 Vet.App. 382, 390 (2010)).
In Appellant’s November 2018 medical examination, the examiner failed to estimate Appellant’s functional loss due to flares using the evidence of record and therefore failed to satisfy the criteria discussed in Sharp.
VA's Secretary Conceded The Error
The Secretary's representative moved to vacate the Board's decision denying an initial rating for the Veteran's hips in excess of 10 percent and agreed to a Joint Motion for Remand to assess the Veteran's correct ratings when flareups are considered. The Secretary also agreed to allow the Veteran to make further argument that his hips interfered with his ability to work and thus warrants a 100 percent rating based on TDIU (Total Disability Based on Individual Unemployability).
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