Citation Nr: 1335134 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-33 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to a rating in excess of 10 percent prior to May 9, 2011, for right ankle sprain, (hereafter referred to as right ankle disability). 2. Entitlement to a rating in excess of 20 percent since May 9, 2011, for right ankle disability. 3. Entitlement to a compensable rating prior to September 28, 2007, for status-post healed stress fracture of the left femoral neck, (hereafter referred to as left hip disability). 4. Entitlement to a rating in excess of 10 percent since September 28, 2007, for left hip disability. 5. Entitlement to a rating in excess of 20 percent since May 9, 2011, for left hip disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Barner, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2004 to January 2005. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. FINDINGS OF FACT 1. Over the course of the appeal, the Veteran's right ankle is manifested by subjective complaints including pain, functional impairment, and instability. Objective findings include limitation of dorsiflexion and plantar flexion, instability, tenderness to palpation, inversion, and laxity. This more nearly approximates marked limitation of motion. There is no evidence of ankylosis. 2. The Veteran's left hip disability was manifested by "slight" limited motion, with hip flexion to 120 degrees with pain and discomfort prior to March 24, 2009. 3. The Veteran's left hip disability was manifested by "moderate" limited motion, with hip flexion limited at most to 80 degrees with pain and tenderness from March 24, 2006, the date of VA treatment showing limited hip motion to 100 degrees. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an initial rating of 20 percent, but no more, prior to May 9, 2011, for right ankle disability have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5271 (2012). 2. The criteria for an initial rating for right ankle disability in excess of 20 percent have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5271 (2012). 3. Resolving reasonable doubt in favor of the Veteran, the criteria for a 10 percent disability evaluation, but no more, for left hip disability prior to September 28, 2007, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5250-5255 (2012). 4. The criteria for a rating in excess of 10 percent for left hip disability from September 28, 2007, to March 23, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5250-5255 (2012). 5. Resolving reasonable doubt in favor of the Veteran, the criteria for a 20 percent disability evaluation, but no more, for left hip disability since March 24, 2009, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5250-5255 (2012). 6. The criteria for a rating in excess of 20 percent since for left hip disability, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5250-5255 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in October 2005 and March 2007 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The claim was most recently readjudicated in August 2012. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. The Veteran was offered the opportunity to have a hearing, although he declined to do so. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. The Board is further satisfied that the RO has substantially complied with the April 2011 remand directives as VA treatment records were obtained and associated with the claims folder, and the Veteran was afforded a VA medical examination in May 2011. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Increased Ratings Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 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. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2012). The factors of disability affecting joints are reduction of normal excursion of movements in different planes, and include consideration of weakened movement, excess fatigability, incoordination, swelling and pain on movement. 38 C.F.R. § 4.45 (2012). The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The words "moderate" and "marked" are not defined in Diagnostic Code 5271. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Ankle The Veteran's right ankle sprain has been evaluated under Diagnostic Code 5271 as 10 percent disabling prior to May 9, 2011, and as 20 percent disabling since May 9, 2011. Under Diagnostic Code 5271, a 10 percent evaluation is assigned when there is moderate limitation of ankle motion. 38 C.F.R. § 4.71. A maximum 20 percent rating is awarded for marked limitation of ankle motion. Id. Normal range of motion for the ankle is dorsiflexion to 20 degrees and plantar flexion to 45 degrees, as set forth at 38 C.F.R. § 4.71, Plate II. In a November 2005 VA examination the Veteran reported experiencing a constant achiness in the right ankle, and a throbbing pain when he was on his feet for prolonged periods of time. The Veteran's gait and posture were normal, and he ambulated without aids. Ankle dorsiflexion was pain free to approximately eight degrees active and passive motion of the right ankle. Upon manipulation of the subtalar joint, there was significant laxity at ten degrees inversion, or two degrees of eversion at the subtalar joint, with some tenderness and subluxation, likely pronaeus brevis. Significant laxity and weakness were displayed with respect to the right ankle subtalar joint area. Radiographs did not reveal significant degenerative joint disease. Functionally, with his work as a carpenter, the Veteran needed to be appropriately braced. Otherwise, it was likely he would further injure his right ankle. At another examination that same month, the Veteran had a snapping right foot due to the extensor tendon snapping over the neck of the talus on the right side. Range of motion testing of the foot revealed dorsiflexion to 20 degrees, plantiflexion to 40 degrees, inversion to 20 degrees, and eversion to 15 degrees. The bones of the ankle appeared normal. VA treatment notes from February 2007 show that the Veteran's right ankle pain affected his gait, such that he often used his cane. March 2007 treatment notes show that the Veteran reported experiencing pain, locking, and a clicking sensation in his right ankle. X-ray showed no evidence of an acute fracture. Assessment was of lateral ankle instability. The Veteran reported that his ankle rolled sometimes, and he was fit with a lace-up type of ankle support with stays and figure-eight straps. The Veteran was afforded another VA examination in April 2007 for his right ankle. The Veteran reported experiencing a pins and needles sensation, with intermittent sharp pressure to his right ankle. The Veteran reported experiencing locking. He denied swelling or redness. The Veteran indicated that symptoms were precipitated by walking more than 200 feet or standing greater than ten minutes, such that they occurred daily. The severity of the pain was at times a nine of ten. Taking weight off of his foot and elevating it were relieving factors. The Veteran ambulated with a cane, and wore a right ankle brace. On examination there was no redness, swelling, or deformity of the right ankle. Range of motion testing showed dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. Muscle strength was a four of five, and deep tendon reflexes were two plus. The Veteran was unable to walk on his heels. An October 2007 treatment note indicated that the Veteran used a cane taking weight off of his right ankle. In December 2007 the Veteran reported that he continued to experience right ankle pain, and his right ankle gave out, twisting inwards frequently. On examination, there was increased supination at the subtalar joint. There was no crepitation or tenderness on range of motion testing of the ankle. There was tenderness with palpation of the medial calcaneal tubercle and side to side compression. There was also tenderness of the posterior lateral malleoulus on the right. The Veteran experienced difficulty with toe raise. In August 2008 the Veteran reported experiencing "immense pain" with his right ankle, as it rolled out and would not hold his weight. He reported that he had lost his brace in a move to North Carolina. He indicated that there was a popping noise with ankle motion. There was no laxity on range of motion testing, which revealed full range, plus more inversion. Another brace for his right ankle was ordered. The examiner observed that there were inconsistencies with the examination. Specifically, he indicated that the Veteran initially sat with his ankle in a normal position, then later volitionally held the right ankle in an inverted position, such that the physical therapist was unable to passively evert it as he had been able to earlier do. The physical therapist opined that the Veteran was not being honest in his presentation for examination. In March 2009 the right ankle was unremarkable. In September 2009 dorsiflexion of the right foot was limited by pain. In March 2011 the Veteran was evaluated as having severe ligamentous laxity, lateral collateral ligament right ankle, with decreased stability. Diagnosis was of a chronic right ankle instability. At his May 2011 VA examination, there was no inflammatory arthritis, deformity, ankle instability, tendon abnormality, or angulation. There was tenderness of the lateral malleolus and heel area. Range of motion testing showed right dorsiflexion was from 0 to 10 degrees, and right plantar flexion was from 0 to 30 degrees. There was objective evidence of pain following repetitive motion; however, there were not additional limitations after three repetitions. The Veteran's gait was antalgic. The Veteran reported that he could walk 200 feet, and stand for 12 hours a day. No ankylosis was present. There was no radiographic abnormality, and no change from the prior study. Diagnosis was of right ankle strain. VA treatment note from October 2011 assessed the Veteran as experiencing ligamentous laxity with secondary ankle instability. In December 2011 treatment records showed that there was ligamentous laxity with subjective ankle instability, and that range of motion was good. There was excessive joint inversion and eversion. A June 2012 private treatment note showed the Veteran's right foot dorsiflexion was to 10 degrees, and plantar flexion to 10 degrees. There was reduced range of motion of the right ankle. There were dislocations of the tendon over the anterior aspect of the right ankle. The Veteran was assessed as having severe limitation in range of motion of the right foot and ankle, and severe limitation in muscle strength of the right foot and ankle. In July 2012 statements from former employers and the Veteran's parents were received. Such statements indicated that the Veteran experienced pain, and experienced difficulty at work from this, and had taken time off for medical leave. The statements are not detailed regarding ankle pain. Competent evidence concerning the nature and extent of the Veteran's right ankle disability has been provided by his reports of symptomatology, including pain, weakness, stiffness, and laxity, and by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated, and consider the reported symptomatology. As such, the Board finds these records to be most probative. In May 2012 the RO awarded a 20 percent rating for marked instability of the right ankle from May 9, 2011. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that such a rating should have been awarded during the entire period on appeal for a right ankle disability evidenced by instability. See Diagnostic Code 5271. Specifically treatment records from 2005 to March 2011 show that the Veteran experienced such symptoms as laxity, tenderness, subluxation, weakness and pain of the ankle. He reported also experiencing locking, and clicking noises in his ankle. He was treated with a brace, and with a lace-up ankle support, and used a cane to walk. On examination there was difficulty with toe raise, lateral ankle instability, tenderness with palpation, and inversion. Dorsiflexion was limited by pain. One treatment note mentioned severe ligamentous laxity with decreased stability and chronic instability. The Board recognizes that there are instances when the Veteran's limited motion did not appear to be as severely disabling as the 20 percent rating suggests, but notes at this juncture that VA will handle cases affected by change in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. See 38 C.F.R. § 3.344(a). In any event, 20 percent is the maximum rating available for marked impairment of the ankle due to limited motion, and the Board finds that a rating by analogy is not appropriate here. See Diagnostic Code 5271. The Veteran's right ankle symptomatology is appropriately evaluated as 20 percent disabling, and it does not more nearly approximate the next higher rating criteria in excess of the 20 percent already assigned at any time. In this regard, the Board observes that 20 percent is the maximum schedular evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5271 for marked limitation of motion of the ankle. Accordingly, in order to assign a higher rating, the record must establish that ankylosis of the ankle is present. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). Here, the Board finds that ankylosis of the right ankle has not been shown. Although the Veteran has complained of pain upon movement during VA examination and in VA medical records, she still demonstrated some range of motion. Even when dorsiflexion was limited to 10 degrees in May 2011 the examiner indicated that no ankylosis was present. Such range of motion is inconsistent with a finding of ankylosis, or "immobility and consolidation" of a joint. Accordingly, the Board finds that the provisions of Diagnostic Code 5270 pertaining to ankylosis are not for application. The Board has also considered other potentially applicable Diagnostic Codes that may provide a basis for separate evaluations for the right ankle. Since ankylosis has not been shown, the provisions of Diagnostic Code 5272, which govern ankylosis of the subastragalar or tarsal joint, are likewise not applicable to the current claim. Additionally, with regard to Diagnostic Code 5273, malunion of the os calcis or astragalus has not been demonstrated. Finally, with regard to Diagnostic Code 5274, the medical evidence is without complaints of or treatment for an astragalectomy of the right ankle, which involves removal of the ankle bone. As such, a rating under this provision is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5274. The remaining potentially applicable diagnostic code is Diagnostic Code 5167 (loss of use of foot), which provides for a 40 percent disability rating. While the Veteran's right ankle disability certainly is productive of limited function, and although he ambulates with a cane for assistance, the medical evidence does not show, nor does he allege, that he has actually lost the use of the foot. He is able to walk and stand, albeit with limitations, and clearly has more function in the foot than would be served with an amputation stump. See 38 C.F.R. § 4.63 (2012). Thus, the Veteran is not entitled to a 40 percent rating under Diagnostic Code 5167. The Veteran has indicated that he has pain of his right right ankle and rolls it multiple times a day, and treatment records show that he experiences severe ligamentous laxity of the lateral collateral ligament of the right ankle, and limited ankle motion. The Board has also considered the Veteran's reports of pain and functional loss, but finds that documented symptoms warranting a rating in excess of 20 percent are not shown. 38 C.F.R. §§ 4.40, 4.45, 4.59 (West 2002 & Supp. 2012); DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, while pain was noted throughout range of motion testing and with repetitive use, there was no indication of any increase in functional loss of the right ankle following repetitive use on examination. Furthermore, the Veteran has not been diagnosed with arthritis of the right ankle, and in any case he is in receipt of a compensable rating under a diagnostic code predicated upon limitation (5271), such that he is not entitled to a separate 10 percent rating under either DC 5003 or 5010. 38 C.F.R. § 4.71a, Diagnostic Code 5010, Note 1. Consequently, the Board concludes that separate, compensable ratings are not provided by the rating schedule under these circumstances. Moreover, there are no schedular provisions to assign a separate rating for instability of the ankle. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). As demonstrated by the evidence outlined above, the Board finds there is an equipoise of the evidence regarding whether there is marked limitation of motion of the ankle prior to May 9, 2011, and resolves reasonable doubt in favor of the Veteran, such that a 20 percent rating is awarded prior to May 9, 2011. The Board, however, finds that the preponderance of the evidence demonstrates that the criteria for a disability rating in excess of 20 percent have not been met at any time, to include since May 9, 2011. The Board has also considered whether staged ratings should be assigned but finds under the circumstances, they are not appropriate. Left Hip The Veteran's left hip is evaluated under Diagnostic Code 5253 as noncompensably disabling prior to September 28, 2007, as 10 percent disabling since September 28, 2007, and as 20 percent disabling since May 9, 2011. The Veteran was also awarded a temporary total rating (100 percent), effective April 4, 2012, based on surgical or other treatment necessitating convalescence for the left hip. See 38 C.F.R. § 4.30 (2012). That period is not at issue. The 20 percent rating for the left hip was re-established from July 1, 2012. Nothing in the ensuing decision affects the 2012 temporary total rating, and this period is not on appeal. The ratings on appeal addressed in this document are for periods when a temporary total rating was not awarded. The Veteran is currently rated under Diagnostic Code 5253, where there is limitation of rotation of the thigh to the point that the claimant cannot toe-out more than 15 degrees, a 10 percent evaluation is assigned. Id. A 10 percent rating is also assigned where there is limitation of abduction to the point at which the claimant cannot cross his legs. Id. A 20 percent rating is assigned where there is limitation of abduction of the thigh, motion lost beyond 10 degrees. Id. Other potentially applicable Diagnostic Codes include 5251 and 5252, providing that where extension of the thigh is limited to 5 degrees, an evaluation of 10 percent is for assignment. See 38 C.F.R. § 4.71a, Diagnostic Code 5251. A 10 percent evaluation requires flexion of the thigh limited to 45 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5252. A 20 percent evaluation requires flexion limited to 30 degrees, while a 30 percent evaluation requires flexion limited to 20 degrees and a 40 percent evaluation requires flexion limited to 10 degrees. Id. Under DC 5254, an 80 percent rating is warranted if there is a flail joint of the hip. See 38 C.F.R. § 4.71a, Diagnostic Code 5254. Under Diagnostic Code 5255, malunion of the femur with slight knee or hip disability warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5255. Malunion of the femur with moderate knee or hip disability warrants a 20 percent evaluation. Id. Malunion of the femur with marked knee or hip disability warrants a 30 percent evaluation. Id. Fracture of surgical neck of the femur, with false joint or fracture of the shaft or anatomical neck of the femur with nonunion, without loose motion, weight bearing preserved with aid of brace warrants a 60 percent evaluation. Id. Fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion, (spiral or oblique fracture) warrants an 80 percent evaluation. Id. Normal hip motion is defined as flexion from zero to 125 degrees and abduction from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II. In a November 2005 VA examination the Veteran reported experiencing a constant pin or pinching sensation in his left thigh on an intermittent basis. He also experienced constant achiness. The Veteran's gait and posture were normal, and he ambulated without aids. In a November 2006 VA examination the Veteran's history of a left proximal femur stress fracture, and benign cyst in the proximal femoral head on the left side were reviewed. The Veteran reported experiencing feelings of discomfort in the left thigh. Hip flexion was to 120 degrees, abduction to 40 degrees, internal rotation to 20 degrees, and external rotation to 40 degrees. There was no snapping in the hip. X-rays revealed a healed stress fracture in the proximal third of the left femur with some thickening of the cortex, no sign of any acute fracture, and a small, less than .5 centimeter cyst in the left femoral head that was well-corticated and appeared benign. The examiner indicated that there was no pain in the hip, and that the Veteran did not use external aids. The examiner indicated that there were no additional limitations from repetitive use. In September 2007 the Veteran experienced a popping sensation in his left hip and excruciating pain such that he was unable to walk normally. On examination, the left hip was tender anterior-laterally. There was pain with passive range of motion to include external and internal rotation. Patrick's test was positive. There was laxity of the joint. By October 2007 hip motion was normal, 30 degrees internal, and 40 degrees external rotation, and from 0 to 120 degrees of flexion. Patrick's test was negative. There was a mild limp on the left, and the Veteran continued to use a cane, albeit it was to take weight off of his right ankle, rather than his left hip. Left hip X-ray was unremarkable. In July 2008 it was indicated that the Veteran was noncompliant in using a brace for his left hip. In January 2008 left hip range of motion testing was 0 to 120 degrees of flexion, 0 to 10 degrees of internal rotation, and 0 to 35 degrees of external rotation. There was an antalgic gait. A left hip magnetic resonance imaging in January 2008 gave impression of no evidence of fracture, osteonecrosis, inflammatory change or other pathology of the hip. There was minimal joint fluid. The joint capsules, labrums, and articular cartilages could not be well seen due to the lack of relative intraarticular fluid. In May 2008 the Veteran experienced left hip tenderness, increased pain with passive rolling, and some tenderness into the lateral surface of the knee. In August 2008 the Veteran reported that he experienced the left hip moving in and out of the socket approximately every three months (chronic dislocations). He indicated that there was a grinding, stiff sensation to his left hip. In September 2008 the Veteran went to the emergency department seeking treatment for "a myriad of complaints" and his history of left hip pain and walking with a cane was reviewed. On March 24, 2009, the Veteran experienced left hip pain at 80 percent of flexion (80 percent of 125 degrees of normal flexion is 100 degrees of flexion). A March 2009 X-ray impression was of a normal left hip. April 2009 X-ray showed calcification of the left femur. In December 2009 the Veteran reported that he had slipped on mud, and his left hip popped out, and he was experiencing pain. On examination, the left hip was painful and tender, with no effusion. Range of motion testing was painful. Diagnosis was of a contusion of the left hip, and the Veteran was given a note excusing him from work for two days. In January 2011 the Veteran tripped, but did not fall, over his daughter's toy and his left hip again popped out of place. Although the Veteran was able to pop it back into place, he indicated that when he walked, he heard a clicking noise. He reported experiencing popping and crackling noises of his left hip with increased pain. He was able to bear weight and ambulate using his cane. On examination there was diffuse tenderness and flexion range of motion was limited by symptoms. Diagnosis was of hip arthralgia with indirect trauma, and the Veteran was treated with a short course of steroids, and provided a work excuse for the day. In March 2011 the Veteran reported that he had recently tripped, and experienced pain when walking. He indicated that it felt as if his left hip popped in and out quickly like a sling shot. The Veteran reported that he had been told he had a bony overgrowth from his hip that cut into his muscle. On examination of the left hip there was good range of motion. Flexion and extension were without complaint. External rotation was full, but internal rotation was only to 15 degrees and caused pain. There was a positive femoral acetabular impingement sign. There was no tenderness to palpation of the hip. The Veteran was referred for an arthrogram and intraarticular cortisone injection of his hip. Other range of motion testing in March 2011 showed left hip flexion to 95 degrees, extension to 20 degrees, abduction to 25 degrees, adduction to 20 degrees, internal rotation to 5 degrees, and external rotation to 20 degrees. Assessment was of acetabular impingement. In April 2011 the Veteran received a left hip corticosteroid injection. At his May 2011 VA examination the Veteran described experiencing sharp pain of the left hip, as if it slingshot in and out. He reported that it felt as if it locked. He treated his left hip with pain medication and injections. He indicated that his pain was a four or five of ten daily, and a nine of ten after working a 12 hour shift. The Veteran indicated that he experienced severe loss of motion and decreased function during flare-ups. The Veteran did not have inflammatory arthritis. The Veteran worked as a correction officer, and reported that he had missed approximately five days of work due to his left hip disability. He reported that he experienced impaired mobility. On examination there was pain with range of motion testing, but no deformity. Left hip flexion was from 0 to 100 degrees; extension from 0 to 10 degrees, abduction was to 0 degrees. The Veteran was able to cross his left leg over the right, and could spread his toes out more than 15 degrees. There were no additional limitations following three repetitions of range of motion. The Veteran's gait was antalgic. The Veteran was limited to walking 200 feet, and could stand for a 12 hour shift. No callosities or unusual shoe wear pattern was present. No ankylosis was present. There was no inflammatory arthritis. A January 2011 X-ray and February 2011 magnetic resonance imaging test showed no evidence of femoral head avascular necrosis or fracture. There was a bony prominence of the femoral head-neck junction bilaterally which could be seen with femoral acetabular impingement. Diagnosis was of a healed femoral neck fracture. Private treatment notes from OrthoCarolina show that in March 2012 the Veteran was scheduled for surgery for his hip pain, and provided a note that he should not return to work until reevaluated. On April 4, 2012, the Veteran underwent left hip arthroscopy and open femoral osteochondroplasty. The Veteran has reported that he was informed that he would experience a numb area the size of a softball due to the muscles and nerves that were cut during this surgery. In July2012 the RO invited the Veteran to submit a separate service connection claim for paresthesia of the left hip if it had not resolved as expected following healing for the surgical procedure. VA treatment records from February 2012 show that the Veteran reported feeling pain primarily in the lateral aspect of the hip requiring him to walk with a cane, and to feel as if he needed to constantly change positions. Range of motion testing showed flexion was to 80 degrees, and that there was pain at the lateral aspect of the hip. No snapping was reproduced with range of motion testing. Assessment was of left hip pain with bony overgrowth of the bilateral hips per magnetic resonance imaging testing with possible impingement. Possible surgery to include arthroscopy for impingement was discussed. In July 2012 statements from the Veteran's former employers and his parents were received. These statements attested to the pain the Veteran experienced on the job and in life in general, to include instances when he missed time from work and was on medical leave. One employer indicated that the Veteran had met with him and discussed seeking other less manual employment. Packaging Corporation of America indicated that the Veteran had been laid off effective March 5, 2012, but that prior to that he had went out on medical leave February 28, 2012, and not returned. Competent evidence concerning the nature and extent of the Veteran's left hip disability has been provided by his reports of symptomatology, including pain and by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated, and consider the reported symptomatology. As such, the Board finds these records to be most probative. The Board observes that the Veteran's disability has been rated alternately under both Diagnostic Code 5255 and diagnostic code 5253 during the course of this appeal. Where, as here, there is X-ray evidence of a healed stress fracture of the femur, and calcification of the left femur, as well as evidence of impaired hip motion, the Board finds that the Veteran is most appropriately rated by analogy according to Diagnostic Code 5255. Although the RO staged the rating based on a September 28, 2007 treatment record, evaluating the hip disability as noncompensable prior to that date, and as 10 percent compensable since then. Resolving reasonable doubt in favor of the Veteran, the Board finds a March 24, 2009 treatment record results in a staged rating of 10 percent, but no higher, prior to such date, which is more favorable to the Veteran. Prior to March 24, 2009, the Veteran exhibited achiness and discomfort of his hip, flexion was limited to 120 degrees, and abduction to 40 degrees. As such, the Board finds that there was "slight" hip impairment, and that a 10 percent rating by analogy under Diagnostic Code 5255 is warranted. The evidence did not, however, approximate a "moderate" impairment of the hip, where the motion was limited only by 5 degrees in flexion and abduction. A greater rating under the other applicable diagnostic codes is not warranted where there was no indication of a flail joint (Diagnostic Code 5254), there was not impairment of the thigh with limited abduction, motion lost beyond 10 degrees (Diagnostic Code 5253). Nor was flexion of the thigh limited to 30 degrees (Diagnostic Code 5252). There was no indication of ankylosis of the hip. (Diagnostic Code 5250). Since March 24, 2009, the evidence is best approximated by a 20 percent rating under Diagnostic Code 5255 for malunion of the femur with "moderate" impairment of the hip, but no higher. On that date the Veteran experienced left hip pain with flexion limited to 80 percent, or 100 degrees. Later treatment notes indicate flexion was limited to 80 degrees. The Veteran continued to experience, pain, locking, clicking, popping and crackling noises, and to use a cane to ambulate. No ankylosis was present. The evidence is against a higher rating where the limited motion did not approximate "marked" limitation. Indeed, the Veteran continued to ambulate, albeit with the use of a cane. The Veteran also is not entitled to a higher rating under other diagnostic codes. There is no indication of flail joint (Diagnostic Code 5254), no higher rating under Diagnostic Code 5253, no limitation of thigh flexion to 20 degrees (Diagnostic Code 5252), and no indication of ankylosis (Diagnostic Code 5250). In sum, where there was an equipoise of the evidence concerning granting a compensable rating prior to September 28, 2007, the Board resolves all reasonable doubt in favor of the Veteran and grants a 10 percent rating for impairment of hip motion rated by analogy under Diagnostic Code 5255. The preponderance of the evidence is against a rating in excess of 10 percent prior to March 24, 2009. Resolving all reasonable doubt in favor of the Veteran., the Board finds a rating of 20 percent since March 24, 2009 is most appropriate for the Veteran's left hip disability. The preponderance of the evidence, however, is against a rating any higher at any time thereafter. Extraschedular Consideration The symptoms presented by the Veteran's right ankle, to include pain and functional limitations, and left hip, to include pain and limited motion, are fully contemplated by the rating schedule. Thus, the Board finds no evidence warranting entitlement to referral for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). The Board has also considered the decision in Rice v. Shinseki, 22 Vet. App. 447 (2011). In Rice, the United States Court of Appeals for Veterans Claims held that a claim for a total rating based on unemployability due to service-connected disability, either expressly raised by the claimant or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Although there is evidence of record suggesting the Veteran has missed work due to his disabilities, discussed less manual employment, and even been on medical leave at the time he was laid off in 2012, the evidence does not suggest that there is an inability to maintain or sustain substantially gainful employment. 38 C.F.R. § 4.16. Indeed, he does not contend otherwise. ORDER Entitlement to a 20 percent rating for right ankle disability prior to May 9, 2011, is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 20 percent for right ankle disability is denied. Entitlement to a 10 percent rating for left hip disability prior to September 28, 2007, is granted subject to the law and regulations governing the award of monetary benefits. Entitlement to a rating for left hip disability in excess of 10 percent from September 28, 2007, to March 23, 2009, is denied. Entitlement to a 20 percent rating for left hip disability since March 24, 2009, is granted subject to the law and regulations governing the award of monetary benefits. Entitlement to a rating for left hip disability in excess of 20 percent is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs