Entitlement to an initial rating in excess of 10 percent prior to January 8, 2018, for the service-connected left hip disability, is remanded.

Citation Nr: 26001453 Decision Date: 01/30/26 Archive Date: 01/30/26 DOCKET NO. 13-26 636 DATE: January 30, 2026 REMANDED Entitlement to an initial rating in excess of 10 percent prior to January 8, 2018, for the service-connected left hip disability, is remanded. Entitlement to an initial rating in excess of 10 percent prior to January 8, 2018, for the service-connected right hip disability, is remanded. REASONS FOR REMAND The Veteran had active service from September 1990 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. The Board notes the extensive procedural history of the present issues, including a February 2023 Order from the United States Court of Appeals for Veterans Claims (Court), which granted the parties' Joint Motion for Remand (JMR), thereby vacating the Board's September 2022 decision. Following the Board's additional remand of the issues in September 2023, the claims were again denied in an October 2024 decision. The Veteran appealed that decision resulting in the most recent order from the Court in August 2025. The Court granted another JMR of the parties, remanding the matter to the Board for action consistent with the terms of the JMR. Increased Initial Ratings - Bilateral Hip Disabilities In the most recent JMR, the parties agreed that the Board's October 2024 decision failed to provide an adequate statement of reasons and bases in denying the claims for increase, citing to the Veteran's assertion that his claims should be referred for possible extraschedular evaluation and finding that the Board failed to address such argument. See August 2025, JMR. The JMR referenced the Veteran's written correspondence from September 2024 as raising such claim. To be certain, the Veteran provided two statements, one typed, one hand-written, both dated September 11, 2024 (the former of the two dated September 11, 2024, but uploaded on the 12th). In both writings, the Veteran asserts that a referral to the Director of Compensation Services was warranted based upon interference with employment. See September 2024, Correspondence. The Board notes that entitlement to a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), and an extra-schedular rating under 38 C.F.R. § 3.321(b)(1), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. Although the JMR is equivocal in this regard, the Board finds that the Veteran's assertions raise an argument pursuant to Rice, for consideration of a total disability rating based upon individual unemployability (TDIU) See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). To the extent that the JMR found that the Board erred concerning extraschedular referral pursuant to § 4.16(b), it is noted that such referral is no longer required, as the Court recently issued the decision in Witkowski v. Collins, overturning Bowling v. Principi, the precedential case which precluded such first-in-time adjudication. See Witkowski v. Collins, No. 24-0640, 2025 (Vet. App. Oct. 21, 2025) (overruling Bowling v. Principi, 15 Vet. App. 1 (2001)). It is also noted, however, that the Veteran's assertions reveal several discrepancies within the claims file that must be resolved prior to either the Board or the RO addressing the issue of entitlement to TDIU. For example, during a September 2010 VA examination, the Veteran reported that he had been on disability since 1998 due to his bilateral hip condition. To the contrary, a Social Security Administration (SSA) determination from July 2010, confirms that he had been denied SSA benefits, based upon the findings from a vocational rehabilitation report which expressed that the Veteran was capable of working in a skilled level of light duty employment. See July 2010, SSA Decision. That decision was provided in records from SSA in March 2019. An additional inquiry was made with the SSA in December 2019, again demonstrating that the Veteran was not, at that time, receiving SSA benefits. However, it appears that there have not been any further requests for updated information from SSA since that time, which may be pertinent to the Veteran's claim. In addition, the Veteran's records confirm a conviction in 2015, for which he served a period of incarceration of approximately three years. The record does not, however, reflect that any medical records from that period-which includes part of the period on appeal-have been requested or obtained despite their relevance to the instant claims. Nevertheless, upon remand from the Court, the Veteran has also asserted an argument that his disability warrants consideration for the functional equivalent of ankylosis. See October 2025, Appellate Brief. In the case of Chavis v. McDonough, the Court held that a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1, 11 (2021). The Board finds that such a determination requires obtaining a medical opinion, as the Board's analysis of the Veteran's functional limitations and their equivalency to a medical state, calls for speculative lay opinion of a medical determination. While the Board notes that this would be an expansion of the holding set forth in the Chavis v. McDonough case (which addressed a claim for a spine disability), as a remand is necessary to obtain additional records as indicated above, the Board will also request a VA opinion, based upon a review of the records, that provides a medical opinion as to any functional equivalency to ankylosis. See, e.g., Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA, SSA, and private treatment records and associate them with the claims file, including any records from the Veteran's period of incarceration, requesting any necessary release forms from the Veteran. 2. Obtain a medical opinion, based upon a review of the records, from an appropriate VA clinician, which provides an opinion as to whether the severity of the functional limitations presented by the bilateral hip disabilities were equivalent to ankylosis for the period on appeal prior to January 2018. A complete and detailed rationale must be provided for all opinions expressed. 3. Confirm that the VA examination report and any medical opinions provided comport with this remand, and undertake any other development found to be warranted. (Continued on the next page.) 4. Then, readjudicate the claim on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sutherell, E. 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.