Citation Nr: 1752223	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  14-06 660	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to an increased rating for lumbar spine degenerative arthritis (low back disability), rated as 10 percent disabling from October 9, 2008, and 20 percent from November 25, 2014.

2.  Entitlement to an initial compensable rating for left hip bursitis and degenerative arthritis (left hip disability).


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Roya Bahrami, Counsel


INTRODUCTION

The Veteran had active service from April 1973 to May 1974.

This appeal to the Board of Veterans' Appeals (Board) arose from a September 2012 rating decision in which the Regional Office (RO) in Roanoke, Virginia continued a 10 percent rating for low back disability, as well as a zero percent rating for left hip disability.

In an October 2015 rating decision, the RO assigned a 20 percent rating for low back disability, effective November 25, 2014. The Veteran has not withdrawn his appeal for higher ratings before or after the effective date of the increased rating.  See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).

The October 2015 rating decision also granted service connection for hip limitation of extension and left hip impairment of adduction and assigned 10 percent ratings effective November 25, 2014. As the Veteran has not disagreed with the disability ratings or effective date assigned, such issues are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection).  See also 38 C.F.R. § 19.35 (2017) (certification is used for administrative purposes and does not confer or deprive the Board of jurisdiction over an issue).

In May 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ), and a copy of the hearing transcript is of record.  During the hearing, the Veteran submitted additional evidence directly to the Board, and expressly waived initial AOJ consideration.


FINDINGS OF FACT

1.  Prior to November 25, 2014, the evidence is at least evenly balanced as to whether symptoms of the Veteran's lumbar spine degenerative arthritis have most nearly approximated forward flexion to 60 degrees; or muscle spasm severe enough to result in an abnormal gait and/or scoliosis.

2.  From November 25, 2014, the evidence is at least evenly balanced as to whether symptoms of the Veteran's lumbar spine degenerative arthritis have most nearly approximated forward flexion to 30 degrees, but there was no ankylosis or incapacitating episodes due to intervertebral disc syndrome.

3.  Throughout the appeal period, the Veteran's left hip bursitis and degenerative arthritis has been manifested by pain on motion, but symptoms have not at any time more nearly approximated flexion limited to 30 degrees.


CONCLUSIONS OF LAW

1.  Prior to November 25, 2014, the criteria or a rating of 20 percent, but no higher, for lumbar spine degenerative arthritis have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.20, 4.27, 4.71a, Diagnostic Code (DC) 5242 (2017).

2.  From November 25, 2014, the criteria for a rating of 40 percent, but no higher, for lumbar spine degenerative arthritis have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.20, 4.27, 4.71a, Diagnostic Codes (DCs) 5242 (2017).
3.  The criteria for a rating of 10 percent, but no higher, for left hip bursitis and degenerative arthritis have been met throughout the appeal period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.20, 4.27, 4.71a, Diagnostic Codes (DCs) 5010-5252 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with regard to VA's duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

II.  Law and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should 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.

Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous. . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.  

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995).

Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45.

The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40.

When considering separate ratings under different diagnostic codes generally, VA must avoid pyramiding, i.e., evaluating the same disability under different diagnostic codes or evaluating the same manifestation under different diagnostic codes. 38 C.F.R. § 4.14.

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.A. § 5107 (b); 38 C.F.R. § 4.3.

III.  Low Back Disability

The Veteran's low back disability (lumbar spine degenerative arthritis) is currently rated under 38 C.F.R. §§ 4.71a, DC 5242, which permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a.

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, DC 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1.

Under the General Rating Formula, a 10 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The only higher schedular ratings under the general rating formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine.

Normal ranges of motion for the lumbar spine are 90 degrees flexion, and 30 degrees extension, lateral flexion, and rotation. 38 C.F.R. § 4.71a , Plate V (2017).

Historically, service connection for lumbar spine degenerative arthritis was granted in a March 2012 rating decision and an initial 10 percent rating was assigned effective October 9, 2008. The Veteran disagreed with the initial 10 percent rating. In an October 2015 rating decision, the RO assigned a 20 percent rating effective November 25, 2014.

Turning to the pertinent evidence of record, a September 2008 letter from the Veteran's treating physician noted that the Veteran currently suffered from degenerative hip and back disease, and the hip and back disabilities manifested in pain and decreased mobility.

A December 2008 letter from the Veteran's chiropractor indicated that the Veteran walked with an altered gait due to pain in his knees and hip. This altered gait placed biomechanical stress on his lumbar spine, resulting in pain and muscle spasm.

On August 2009 VA back examination, the Veteran reported shooting pains up the back. He would get restless and could not sleep well. He woke up "no less than 6 times a night." Getting comfortable was difficult. He saw a provider, and medication was offered but the Veteran declined. Currently there was no treatment for back condition. Other symptoms included stiffness, weakness, spasms, and pain. Standing and walking provoked pain. He described pain as "pressure." Pain was severe, constant, and daily. He reported daily severe flare-ups, lasting hours. Flare-ups were precipitated by walking or standing and alleviated by sitting back down. He used a cane. He was able to walk one quarter of a mile. There was no history of incapacitating episodes. Physical examination revealed a normal gait and spinal curvature. There was no thoracolumbar spine ankylosis. There was radiographic evidence of scoliosis. Range of motion testing revealed active flexion limited to 90 degrees. Extension, bilateral lateral flexion, and bilateral lateral rotation were all limited to 30 degrees. There was no objective evidence of pain on active range of motion; however, there was objective evidence of pain following repetitive motion. There was no additional limitation after three repetitions of range of motion. The examiner noted that the Veteran was employed full time, had not lost time from work during the last 12 months, and the Veteran's back condition resulted in no functional impairments and did not significant effects on usual occupation.

In his October 2009 notice of disagreement (NOD), the Veteran took issue with the August 2009 VA examination. He stated that he did not have a normal gait and could not get up from his chair without support. He walked with a limp and had difficulty putting on and taking off socks and shoes.

On April 2012 VA back examination, the Veteran reported that "as time went along I had problems getting around." He reported going to a chiropractor for back pain. The chiropractor did x-rays and found scoliosis and arthritis. Treatment for this pain has primarily been medications and topical cream; he denied injections or surgery. The Veteran endorsed flare-ups, reporting that his back hurt anytime he stood or walked. Range of motion testing revealed forward flexion to 90 degrees, with no objective evidence of pain. Extension was limited to 25 degrees, with objective evidence of pain beginning at 15 degrees. Bilateral lateral flexion was limited to 30 degrees, with objective evidence of pain beginning at 20 degrees. Bilateral lateral rotation was limited to 30 degrees, with no objective evidence of pain. Following repetitive-use testing, forward flexion was limited to 90 degrees, extension was limited to 25 degrees, and bilateral lateral flexion and rotation were limited to 30 degrees. There was no additional limitation in range of motion of the spine following repetitive-use testing. There was no localized tenderness or pain to palpation for joints and/or soft tissue of the back. There was no guarding or muscle spasm of the back. The Veteran did not have IVDS of the thoracolumbar spine. He did not use any assistive devices as a normal mode of locomotion.

A March 2013 letter from president of the Veteran's company indicated that the Veteran had been an employee since 1995. His duties as a sales representative/finance manager required a substantial amount of mobility and walking throughout the workweek. The president noted that he had witnessed the Veteran's physical abilities decline over the years, and particularly the past three years. In September [2012], he purchased a golf cart, primarily for the Veteran's use to go from the office to vehicles on the display lot.

A July 2014 VA nursing note indicated that the Veteran was complaining of back pain. Symptoms had worsened over the last 3 to 4 months. 

A November 2014 Disability Benefits Questionnaire noted that the Veteran had difficulty moving about the exam room and great difficulty donning and doffing his shoes and socks. Low back showed diffuse tenderness, left side more so than the right, with muscle tightness along lumbar paraspinal and latissimus dorsi muscles. Range of motion testing revealed flexion limited to 70 degrees, with objective evidence of pain beginning at 55 degrees. Extension was limited to 4 degrees, with objective evidence of pain beginning at 0 degrees. Right lateral flexion was limited to 20 degrees, with objective evidence of pain beginning at 10 degrees. Left lateral flexion was limited to 5 degrees, with objective evidence of pain beginning at 0 degrees. Bilateral lateral rotation was limited to 10 degrees, with objective evidence of pain beginning at 0 degrees. The Veteran had additional limitation in range of motion of the thoracolumbar spine following repetitive use testing. The Veteran had sacroiliac joint and low back tenderness. He also had guarding or muscle spasm severe enough to result in abnormal gait.

On November 2016 VA back examination, the Veteran described his functional impairment as increased back pain with prolonged weightbearing activity. Range of motion testing revealed flexion limited to 70 degrees, extension limited to 5 degrees, right lateral flexion limited to 20 degrees, left lateral flexion limited to 10 degrees, right lateral rotation limited to 15 degrees, and left lateral rotation limited to 10 degrees. Pain was noted on exam and caused functional loss. There was evidence of pain with weightbearing. There was no evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. There was no ankylosis of the spine. The Veteran did not have IVDS of the thoracolumbar spine. He used a brace and a cane as normal modes of locomotion. The examiner found that pain, weakness, fatigability, incoordination did not significantly limit functionability in moderate to sedentary or prolonged repetitive physical activities. 

During the May 2017 Board hearing, the Veteran testified that he always has back pain. He becomes fatigued with standing. He cannot do home remodeling, and has to hire everything out. As a car salesman, it has been difficult for him to meet and greet customers. He uses a VA-prescribed walker. He cannot reach, lift, or carry things. He is unable to bend over. He has muscle spasms where he feels like his back is tightening up. He avoids stairs. He has flare-ups after standing for 5 minutes. He has lost time from work due to his disabilities. 

A May 2017 private treatment record indicated that range of motion of the lumbar spine was limited to 60 degrees of flexion, 15 degrees of extension, and 25 degrees of bilateral lateral flexion and rotation. There was pain and stiffness in all planes. Fixation was revealed in the sacral and thoracic. Difficulty walking and standing to walk were notably difficult. Myofascial pain and tenderness was present in in the lumbosacral region. The examiner noted that they had treated the Veteran since September 2014, and the Veteran reported experiencing several days of relief following each visit, but the pain returns.

Based on the foregoing, the Board finds that higher ratings for lumbar spine degenerative arthritis are warranted throughout the appeal period. Prior to November 25, 2014, a higher, 20 percent rating is warranted. Since November 25, 2014, a higher, 40 percent rating is warranted. 

The Board has considered whether an increased schedular rating is warranted for the Veteran's low back disability based on functional loss due to pain, weakness, excess fatigability, incoordination and flare-ups, pursuant to 38 C.F.R. §§ 4.40, 4.45, and the Court's holding in DeLuca v. Brown, supra.

Prior to November 25, 2014, forward flexion of the spine was noted to be normal (90 degrees). However, the August 2009 VA examiner did not indicate the degree to which the Veteran's spine was limited after repetitive testing, and neither examiner addressed additional limitation of the spine during the Veteran's reported flare-ups. Moreover, the evidence of record reflects that the Veteran had an antalgic gait and muscle spasm in his spine, and that he had scoliosis. As such, and resolving reasoned doubt in the Veteran's favor, the Board finds that a 20 percent rating for the Veteran's lumbar spine disability is warranted prior to November 25, 2014. The Board further finds that a rating in excess of 20 percent is not warranted prior to November 25, 2014. The evidence during this period, to include VA treatment records and VA examination reports, does not show that the Veteran had forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  The evidence does not reflect that the additional loss of motion from flare-ups would result in such significant loss of motion from flexion to 90 degrees that the symptoms would more nearly approximate flexion to 30 degrees or less warranting a higher, 40 percent rating.  Further, the Veteran has not been shown to have ankylosis or incapacitating episodes resulting from the low back disability.

From November 25, 2014, forward flexion was noted to be, at most, limited to 55 degrees with pain. However, in light of the Veteran's testimony that he was unable to bend over, and in consideration of his reports of severe flare-ups of lumbar spine symptoms, the Board finds that the Veteran's service-connected lumbar spine disability most nearly approximates the flexion to 30 degrees or less required for a 40 percent disability rating from November 25, 2014.  The Board further finds that a rating in excess of 40 percent is not warranted from November 25, 2014. Neither the reports of examination or treatment records indicate that there was unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. Rather, these documents contain either specific findings of no ankylosis or findings reflecting that there is no ankylosis. The lay statements similarly do not indicate that there has been ankylosis. Moreover, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40 , 4.45, this rule does not apply where, as here, the Board has awarded the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).

For the foregoing reasons, a 20 percent rating, but no higher, is warranted for lumbar spine degenerative arthritis prior to November 25, 2014, and a 40 percent rating is warranted thereafter. As the preponderance of the evidence is against higher ratings than those granted above, the benefit of the doubt doctrine is not for application and the claims for ratings higher than those assigned herein must be denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 4.3.

IV.  Left hip disability

Service connection for left hip bursitis and degenerative arthritis was granted in a March 2012 rating decision and an initial noncompensable rating was assigned effective October 9, 2008. This rating was assigned under 38 C.F.R. § 4.71a, Diagnostic Codes 5010 to 5252, for degenerative arthritis and limitation of flexion of the thigh. As noted in the Introduction, effective November 25, 2014, the Veteran is also in receipt of separate 10 percent ratings for limitation of extension and limitation of adduction.

Arthritis is addressed under DC 5010 and is rated under DC 5003 on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved.  38 C.F.R. § 4.27. Specifically, this diagnostic code allows compensation of arthritis established by x-ray findings to be rated either based on the limitation of motion of the affected joint or based on x-ray findings. 38 C.F.R. § 4.471a, DC 5003. If noncompensable limitation of motion is shown, a 10 percent rating is warranted. Ratings based on x-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, DC 5003, Note 1.

Under DC 5252, limitation of flexion of the thigh, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent is assignable if flexion is limited to 30 degrees. A 30 percent rating is assignable if flexion is limited to 20 degrees, and a 40 percent rating is assignable if flexion is limited to 10 degrees.

Additional applicable diagnostic codes regarding limitation of motion of the thigh include DC's 5251 and 5253. Under DC 5251, a 10 percent rating is the maximum rating assignable for limitation of extension to 5 degrees. Under DC 5253, impairment of the thigh, the criteria for a 10 percent rating is the inability to cross the legs or external rotation limited to 15 degrees. The criterion for the next higher rating, 20 percent, is adduction limited to 10 degrees.

Normal range of motion of the hip is from 0 to 125 degrees of flexion and 0 to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II.

Turning to the pertinent evidence of record, a September 2008 letter from the Veteran's physician indicated that the Veteran currently suffered from degenerative hip and back disease. His hip and back disabilities manifested in pain and decreased mobility.

A December 2008 letter from the Veteran's chiropractor indicated that the Veteran walked with an altered gait due to pain in his knees and hip.

On August 2009 VA examination, the Veteran reported having a lot of left hip pain. Resting at night was difficult. He did not receive care currently. Joint symptoms included pain, stiffness, weakness, swelling, and tenderness. Flare-ups were severe, occurred daily and lasted for "hours." Flare-ups were precipitated by standing or walking and alleviated by staying off his feet. He described his functional limitations as being unable to stand for more than a few minutes. He was able to walk a quarter of a mile. He frequently used a cane for ambulation. Gait was normal. There was no evidence of abnormal weight bearing. Range of motion testing revealed flexion limited to 125 degrees. Extension was limited to 30 degrees, and adduction to 45. He could cross his left leg over right and he could toe out greater than 15 degrees. There was no objective evidence of pain with active motion. There was no objective evidence of pain following repetitive motion. There was no additional limitations after 3 repetitions of range of motion. X-rays did not reveal evidence of a left hip joint condition.

On April 2012 VA examination, the Veteran stated that he had not realized that any problems existed with the hip, but he developed pain. He walked a lot as a used car salesman. Around 2006 he had an x-ray of the left hip revealing arthritis. The Veteran denied injections, surgery, or physical therapy for hip pain; treatment had primarily been oral medications. He reported flare-ups, noting that there were days when the hip pain would be constant, while other days it would be less. Range of motion testing revealed left hip flexion limited to 115 degrees with no objective evidence of pain. Extension was greater than 5 degrees, with no objective evidence of pain. Abduction was not lost beyond 10 degrees. The Veteran was able to cross his legs and toe-out more than 15 degrees. The Veteran was able to perform repetitive-use testing with 3 repetitions, with no additional limitation of range of motion. Hip strength was normal. There was no ankylosis, malunion or nonunion of femur, flair hip joint or leg length discrepancy.

A November 2014 Disability Benefits Questionnaire indicated that left hip flexion was limited to 80 degrees, with pain beginning at 60 degrees. Extension was limited to 0 degrees. Abduction was lost not beyond 10 degrees. Adduction was limited, such that the Veteran could not cross his legs. The Veteran could toe out more than 15 degrees. Pain was noted on extremes of hip motion in all planes. The Veteran had additional limitation in range of motion of the hip and thigh following repetitive use testing. Functional loss was described as less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing. The Veteran regularly used a cane.

On December 2016 VA hip and thigh examination, the Veteran reported flare-ups of increased pain in both hips, left greater than right, precipitated by stairs, prolonged standing, and walking. Range of motion was limited to 110 degrees of flexion, 10 degrees of extension, 25 degrees of abduction, and adduction limited such that the Veteran could not cross his legs. Pain was exhibited in flexion, extension, and adduction. There was evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions. On repetitive-use testing, adduction was limited to 3 degrees. Muscle strength was reduced in flexion, extension, and abduction. There was no ankylosis, malunion or nonunion of femur, flail joint or leg length discrepancy. The Veteran used a brace regularly and a cane constantly for normal modes of locomotion.

A May 2017 private treatment record noted that the Veteran rated the intensity of his pain/symptoms as a 7 out of 10. At its worst it was an 8. Pain was described as shooting, radiating, sharp, and stiff. The Veteran related that the symptoms were aggravated by activities involving standing, walking, sleeping, squatting, twisting, lying down, driving, riding, and rising from sitting.

Based on the foregoing, the Board finds that an initial 10 percent rating, but no higher, is warranted for degenerative arthritis and bursitis of the left hip, throughout the entire appeal period.

Prior to November 25, 2014, the Board acknowledges that there is no range of motion testing of record evidencing compensable limitation of motion. Despite this, the Veteran has consistently reported painful motion and flare-ups of left hip symptoms. The Veteran is both competent and credible in reporting the functional impact of his hip disability, including painful motion and additional related social and occupational effects. Given that the Veteran has arthritis of the left hip, and considering the evidence of functional impairment and additional associated symptomatology including an altered gait, pain, stiffness, weakness, swelling, and tenderness, the Board finds that the criteria for a 10 percent rating pursuant to 38 C.F.R. § 4.59 is warranted, given that the disability is rated under DC 5252, which contains a 10 percent rating.  See Sowers v. McDonald, 27 Vet. App. 472, 480 (2016); Petitti v. McDonald, 27 Vet. App. 415, 428-29 (2015) (a compensable rating is warranted for joint pain pursuant to 38 C.F.R. § 4.59 for orthopedic disabilities rated under diagnostic codes containing a compensable rating, and the criteria for such a rating can be satisfied with lay and other non-medical evidence).

Moreover, while flexion has been more limited from November 25, 2014, the symptoms have not at any time more nearly approximated the 30 degrees flexion required for a 20 percent rating under DC 5252.  The November 2014 Disability Benefits Questionnaire indicated that the Veteran's limitation of flexion was limited to 60 degrees with pain.  The evidence as to severity of flare-ups, including the Veteran's statements, do not reflect that they are so significant as to limit motion to result in symptoms more nearly approximating the 30 degrees of flexion required for a 20 percent rating under DC 5252 at any time during the appeal period, to include since November 25, 2014.

As noted in the Introduction, the RO has assigned separate 10 percent ratings for limitation of extension and adduction, effective November 25, 2014. Thus, the Veteran is in receipt of three separate 10 percent ratings for disabilities related to the left hip. The Board is cognizant that the assignment of multiple ratings based on the same symptoms or manifestations constitutes prohibited pyramiding. 38 C.F.R. § 4.14. However, here, the Board finds that the assignment of separate ratings based on limitation of extension, flexion, and adduction of the left hip under DC 5251, 5252, and 5253 would not amount to pyramiding under 38 C.F.R. § 4.14. In this regard, separate ratings under different diagnostic codes may be assigned where "none of the symptomatology for any of [the] conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions." Esteban v. Brown, 6 Vet. App. 259 (1994). Here this key consideration has been met, in that limitation of extension, flexion, and adduction concern excursions of movements in different planes, and these limitations therefore constitute different bases for rating the hip. 38 C.F.R. § 4.45. If these limitations are demonstrated, they must be rated separately to adequately compensate for functional loss associated with the service-connected left hip disability.  Cf. VAOPGCPREC 9-2004 (providing that separate ratings may be assigned for disability of the same joint where Veteran has both limitation of flexion and limitation of extension of same leg); see also Yonek v. Shinseki, 722 F.3d 1355 (2013) (finding separate ratings are not warranted for limitation of motion in different planes of the shoulder because they are not warranted under the applicable diagnostic codes, but that diagnostic codes addressing joints other than the shoulder assign different codes to limitation of motion in different planes, or to limitation of motion in different directions within a single plane, for example, DCs 5252 and 5253 with regard to the thigh).

As for other potentially applicable diagnostic codes pertaining to the hip, the record does not contain evidence of ankylosis of the left hip or evidence that his left hip osteoarthritis is manifested by pathology such as femur fracture or flail joint; therefore, ratings under DCs 5250, 5254, or 5255 are not appropriate at any time during the rating period. 38 C.F.R. § 4.71a.

For the foregoing reasons, a 10 percent rating is warranted for degenerative arthritis of the left hip throughout the time period on appeal.  As the preponderance of the evidence is against any higher rating than the one granted above, the benefit of the doubt doctrine is not for application and the claim for a rating higher than that assigned herein must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.

V.  Additional Considerations

The Board has considered whether the Veteran's low back and left hip disabilities present an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321 (b)(1) (2017); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). Such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms, i.e., marked interference with employment and frequent hospitalization. If the disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. 

The discussion above reflects that the symptoms are fully contemplated by the applicable rating criteria. The Veteran's service-connected low back disability and left hip disability are manifested by symptoms of pain, stiffness, weakness, and muscle spasm, which impact his ability to walk, sit or stand for prolonged periods of time. These symptoms and their resulting effects are fully contemplated by the rating schedule, which provides disability ratings on the basis of musculoskeletal deformity and contemplate a wide variety of manifestations of functional loss. Moreover, pain is contemplated in the rating criteria for all musculoskeletal disabilities, and therefore it does not need to be identified in each individual code to indicate its inclusion. 38 C.F.R. § 4.59 (2016); see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that § 4.59 applies to "joint pain in general" and is not limited to joint pain due to arthritis); see also 38 C.F.R. §§ 4.40, 4.45 (2016). The difficulty in walking and standing are consequences of the symptom of pain and not separate symptoms. As the criteria contemplate the symptoms, the Board need not consider whether the low back and left hip disabilities cause marked interference with employment for purposes of an extraschedular rating.

In Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that "[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities." Here, however, the issue has not been argued by the Veteran or reasonably raised by the evidence of record. The Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities"). The Board will therefore not address the issue further.

Finally, the Board has also considered a total rating based on individual unemployability due to service-connected disability (TDIU), pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, absent any indication or allegation that the appellant is unemployable as a result of his service-connected disabilities, consideration of a TDIU is not warranted. There is competent and credible evidence that the Veteran is employed. There is no evidence that the position is not substantially gainful. Thus, the record does not reasonably raise the issue of TDIU at this time. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).

ORDER

Prior to November 25, 2014, entitlement to a rating of 20 percent, but no higher, for lumbar spine degenerative arthritis is granted, subject to controlling regulations governing the payment of monetary awards.

From November 25, 2014, entitlement to a rating of 40 percent, but no higher, for lumbar spine degenerative arthritis is granted, subject to controlling regulations governing the payment of monetary awards.

Entitlement to a rating of 10 percent, but no higher, for left hip bursitis and degenerative arthritis is granted, subject to controlling regulations governing the payment of monetary awards.




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Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs