Citation Nr: 1802677 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 08-13 188A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable rating for residuals of a right pelvis stress fracture. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Vuong, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2000 to October 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board previously remanded this matter for additional development in May 2012, June 2014, December 2015, and in March 2017. FINDING OF FACT For the entire appeal period, the Veteran's residuals of a right pelvis stress fracture has manifested by pain and flexion limited to no less than 60 degrees, even with consideration of functional loss due to pain, weakness, incoordination, and fatigue. CONCLUSION OF LAW The criteria for a compensable rating for residuals of a right pelvis stress fracture have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5252 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 should be considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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. Id. 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, restricted or excess movement of the joint, pain on movement, and weakness. Id. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. § 4.40 (2017). 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. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Regulation also specifies that when testing joints, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 (2017). Furthermore, the Court has held that VA examinations must comply with Section 4.59 to be adequate. Correia v. McDonald, 28 Vet. App. 158, 168-169 (2016). The Veteran's service-connected residuals of right pelvis stress fracture are currently rated as noncompensable under Diagnostic Code 5252. Diagnostic Code 5252 provides evaluation of hip disabilities based on limitation of flexion. A 10 percent disability rating is warranted for limitation of flexion of the thigh to 45 degrees; a 20 percent rating is warranted for limitation of flexion of the thigh to 30 degrees; a 30 percent rating is warranted for limitation of flexion of the thigh to 20 degrees; and a 40 percent rating is warranted for limitation of flexion of the thigh to 10 degrees. 38 C.F.R. § 4.71a. Normal ranges of motion of the hip are hip flexion from 0 to 125 degrees, and hip abduction from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II. The Veteran underwent a VA examination in March 2008. The examiner reviewed the treatment records back to 2003, noting that they are silent for right hip and right pelvic complaints. At the examination, the Veteran reported an inability to walk straight and pain in right hip and right pelvic area, with severe flares weekly. The Veteran further indicated that right hip pain radiated to the right leg and knee after prolonged sitting or driving; he is able to stand 3 to 8 hours with short rest periods; and he is able to walk a quarter mile to one mile. Upon examination, the examiner noted abnormal range of motion in the right hip with flexion from 0 to110 degrees, extension from 0 to 20 degrees, and abduction from 0 to 35 degrees. The examiner indicated that the Veteran was able to cross his right leg over left and can toe-out more than 15 degrees. The examiner observed objective evidence of pain following repetitive motion but no additional limitations was noted. The examiner noted the Veteran's antalgic gait. The examiner also noted that the March 2008 imaging was within normal limits. No ankylosis was present. The examiner gave a diagnosis of right hip strain, unrelated to the Veteran's right pelvis stress fracture. The Veteran was provided another VA examination in September 2008. At the examination, the Veteran reported constant pain from the right groin radiating along the anterior aspect of the right thigh down to the knee region. The Veteran reported flares resulting from prolonged sitting, standing, walking more than half a mile, and bending or stooping, resulting in limitation of motion. The examiner noted that prior imaging results of the pelvis were normal; X-rays taken on the date of the examination were normal. The examiner observed use of a lumbar corset and cane, and a grotesque limp on the right side. Right hip examination showed no swelling or deformity. The examiner further observed tenderness over the right groin and medial upper thigh. Upon examination, the range of motion of the hip was limited in flexion to 60 degrees with pain; external rotation to 30 degrees; internal rotation to 20 degrees; and abduction to 40 degrees with pain in the last 10 degrees of motion. Pursuant to the Board's May 2012 Remand, the Veteran was provided another VA examination in May 2012. The Veteran reported pain in his right hip when he walks more than 3 blocks, use of pain medication, use of a cane and physical therapy. Upon physical examination, the examiner noted joint abnormality of the right hip with abnormal motion, limitation and pain. The examiner denied flail joint or false flail joint. The Veteran was unable to perform repetitive use testing with three repetitions and refused testing due to pain. Nonetheless, the examiner noted less movement and weakened movement after repetitive use with contributing factors of pain, locomotion disturbance, and interference with sitting, standing or weight bearing. The examiner indicated an inability to test for hip extension as the Veteran refused. The Veteran also refused to perform testing for abduction, adduction, and external rotation due to severe pain. The examiner noted localized tenderness, pain on palpation of right hip, and abnormal muscle strength (4 out of 5). The examiner found no ankylosis, malunion or nonunion of the joint. The examiner further noted that review of treatment records revealed normal X-rays and that the Veteran has not been evaluated or treated for residual pelvic stress fracture at a VA facility. The examiner gave a diagnosis of healed right pelvic stress fracture with significant effects such as difficulty traveling, walking, and effect on activities of daily living. As a result of the June 2014 Board Remand, the Veteran underwent another examination in August 2014. The examiner conducted an in-person examination and reviewed the claims file. The examiner noted a diagnosis of residuals of right pelvis stress fracture. At the examination, the Veteran reported symptoms of constant pain with aggravation of sharp pain by prolonged weight-bearing activities. The Veteran further reported flares that result in limitations on running, and prolonged walking or standing. Upon examination, the examiner noted that range of motion in flexion ended at 115 degrees, with objective evidence of painful motion at 115 degrees. The examiner further noted that extension ended at 5 degrees, with objective evidence of painful motion at 5 degrees. The examiner noted that abduction was not lost beyond 10 degrees; the Veteran was not limited from crossing legs; and rotation was not limited such that Veteran cannot toe-out more than 15 degrees. Repetitive use testing with 3 repetitions was performed resulting in abnormal range of motion. Additional limitation in range of motion was not noted after repetitive use testing. The examiner did note functional loss with less movement than normal in the right hip and thigh after repetitive use. The examiner also observed localized tenderness, pain on palpation, and normal muscle strength. The examiner found no ankylosis, malunion or nonunion of bones. The examiner noted no bony abnormality from an August 2014 imaging and did not provide an estimation of range of motion during a flare. The examiner indicated that there were no other pertinent physical findings. Pursuant to the December 2015 Board Remand, a new examination was ordered to assess the symptomatology of the Veteran's condition and reconcile the conflicting evidence regarding the residuals of the stress fracture. As such, the Veteran underwent another VA examination in November 2016. The examiner conducted an in-person examination and review of records. The examiner indicated that the Veteran does not have a current diagnosis associated with right hip or pelvis. At the examination, the Veteran reported pain in the right inguinal area and groin that has gradually worsened since onset in 2000. The Veteran further reported decreased strength and difficulty with prolonged walking, carrying heavy equipment, and participation in contact sports. The examiner noted occasional use of a cane. Ultimately, the examiner was unable to obtain results from range of motion testing, noting that the Veteran gave inconsistent effort demonstrating more range of motion when ambulating and sitting than during formal testing. The examiner further noted an inability to do repetitive use testing due to psychological, behavior, and motivation issues. The examiner denied pain with weight bearing, localized tenderness, pain on palpation, and objective evidence of pain upon examination. No atrophy, ankylosis, other pertinent physical findings or scars were noted. The examiner indicated that he was unable to determine effect of flares without resort to speculation. Upon review of treatment records, the examiner noted an in-service June 2000 stress fracture of the inferior pubic ramus with normal subsequent X-rays in March 2008, September 2008, and August 2014. The examiner also noted normal MRIs of the pelvis and bilateral thighs in August 2017, and a normal EMG in April 2015. The examiner explained that the type of fracture shown on the original, in-service X-ray is stable and almost always heals without sequela; subsequent radiological studies show no abnormal residual findings. The examiner indicated there was a discrepancy in gait without explanation and that the Veteran exerted minimal effort in testing. Based on the evaluation, the examiner opined that the Veteran's right hip complaints were completely or almost entirely psychogenic with strong behavioral and motivational influences. The examiner concluded there was no objective evidence of residual of right pelvis stress fracture. In a March 2017 Remand, the Board found that the November 2016 examination report did not show adequate consideration of the evidence requested in the prior Board Remand. A VA Disability Benefit Questionnaire was completed in May 2017. The examiner conducted an in-person examination and review of the entire claims file. The examiner diagnosed status post right pelvic stress fracture. At the examination, the Veteran reported flares involving a hot burning pinching sensation, pain, and stiffness. The examiner noted functional loss related to radiculopathy, resulting in difficulty walking and standing for long periods of time. Testing revealed abnormal range of motion. Initial testing showed range of motion in flexion from 0 to 100 degrees, extension from 0 to 25 degrees, abduction from 0 to 40 degrees, adduction from 0 to 20 degrees, external rotation from 0 to 55 degrees, and internal rotation from 0 to 35 degrees. Pain was noted on all ranges of motion, but did not result in functional limitation. Repetitive use testing was performed with additional loss of range of motion. Flexion was from 0 to 90 degrees, extension from 0 to 20 degrees, abduction from 0 to 35 degrees, adduction from 0 to 15 degrees. Further consideration of the Veteran's reports of flares resulted in an estimated range of motion in flexion from 0 to 80 degrees, extension from 0 to 13 degrees, abduction from 0 to 25 degrees, adduction from 0 to 8 degrees, external rotation from 0 to 35 degrees, and internal rotation from 0 to 20 degrees. The examiner estimated that with repeated use over time, the range of motion would be: in flexion from 0 to 85 degrees, extension from 0 to 15 degrees, abduction from 0 to 30 degrees, adduction from 0 to 10 degrees, external rotation from 0 to 40 degrees, and internal rotation from 0 to 25 degrees. The examiner noted the Veteran's ability to cross his legs. There was no objective evidence of localized tenderness or pain on palpation. The examiner noted no evidence of pain on passive range of motion, non-weight bearing testing; there was evidence of pain with weight-bearing motion. The examiner denied muscle reduction, atrophy, ankylosis, malunion or nonunion of bones, scars, or other pertinent physical findings. In a separate report May 2017 report, the examiner noted review of the claims files. In particular, the examiner noted the original imaging which diagnosed a right pelvic fracture and subsequent testing and VA examinations. Upon review of the conflicting medical evidence and physical examination, the examiner indicated that the Veteran has decreased range of motion; pain with weight bearing as well as non-weight bearing was noted. While the examiner noted weakened movement, the examiner offered that there are no objective muscular or neurological symptoms. VA treatment records show findings of decreased range of motion. See VA treatment records from April 2015 (noting decreased pelvic rotation); August 2013 (noting guarded range of motion without functional limitation); and July 2008 (noting hip range of motion while sitting to 90 degrees in flexion with decrease in flexibility). Imaging has not shown further abnormality. See VA treatment records from December 2015 (normal EMG); August 2013 (normal pelvic X-rays from September 2008 and March 2008, and normal thigh MRI from August 2007)); and August 2014 (normal EMG). After reviewing the evidence of record, the Board finds that a compensable rating for the Veteran's right pelvis stress fracture is not warranted as there is no evidence that flexion was ever limited to, or more nearly approximated, 45 degrees so as to warrant assignment of a 10 percent rating under Diagnostic Code 5252. In all the VA examinations and treatment records, pain was noted but no loss of range of motion beyond 60 degrees flexion was observed. Collectively, testing results showed limitations which account for pain, flares and repetitive use. The VA examinations and reports from March 2008, September 2008, and August 2014 evidenced no loss of range of motion beyond 60 degrees in flexion after accounting for active or passive range of motion, loss due to weakness, lack of endurance, incoordination or instability, and repetitive use. Furthermore, the May 2017 examination evidenced no loss of range of motion beyond 80 degrees in flexion after accounting for active or passive range of motion, loss due to weakness, lack of endurance, incoordination or instability, repetitive use and the Veteran's report of flares. The Board is cognizant of the Veteran's competency and credibility to report pain and other observed symptomatology. However, even considering additional functional loss due to pain, there is no evidence that flexion was ever limited to, or more nearly approximated, 45 degrees so as to warrant a compensable assignment of 10 percent rating under Diagnostic Code 5252. In fact, flexion was never found to be limited to 60 degrees or less in the right thigh. The rating criteria require flexion limited to at least 45 degrees for a 10 percent rating. The current non-compensable evaluation contemplates the Veteran's reported functional loss due to painful movement. As demonstrated, the range of motion findings considered here, and the non-compensable evaluation currently assigned, already account for functional loss due to painful movement. The Board has considered the Veteran's lay statements, including the September 2017 VA 21-4138. In that statement, the Veteran reported that the April 2017 examiner did not thoroughly test the Veteran's range of motion; did not use a goniometer; and did not adequately assess the Veteran's disability. The Board finds there is no indication that the examiner lacked the necessary training and qualifications to provide an adequate examination and opinion. More importantly, the examination and report appear adequate in order to evaluate the Veteran's service-connected disability as the April 2017 report includes an interview with the Veteran, review of conflicting treatment records, and full examination results addressing the relevant rating criteria. The Veteran further indicated that an August 2017 treatment record supports a compensable rating. The Veteran submitted the August 2017 treatment record along with his statement along with a waiver. See 38 C.F.R. § 20.1304. After reviewing the treatment record in question, the Board does not agree with the Veteran's assertion. In the August 2017 treatment record, the Veteran presented with reports of acute onset of severe, constant hip and pelvic pain exacerbated by weight bearing and movement of thigh. Upon examination, the clinician noted no tenderness, palpation, or erythema. The clinician noted no restriction of motion or obvious deformities. The clinician did note pain was elicited with raising of the hip joint 10 degrees. The straight leg raise test results does not equate to limitation of motion. This test was performed to evaluate the presence of nerve impairment. The clinician offered an assessment of pain possibly from sciatica or lumbosacral radiculopathy, again noting no obvious restriction of motion upon examination. As the May 2017 VA examiner already has determined that the Veteran does not have any nerve impairment from his service-connected hip fracture, this treatment record does not support a compensable rating. The Board has considered the applicability of other potential diagnostic codes for higher or separate ratings. The Veteran is already in receipt of separate ratings for limitation of extension under Diagnostic Code 5251 and impairment of the thigh rotation in adduction, abduction under Diagnostic Code 5253. There are no other diagnostic codes which would provide higher or separate ratings for the Veteran's residuals of the right pelvis fracture. As the evidence of record fails to demonstrate ankylosis, flail joint, or impairment of the femur, the Veteran is not entitled to a higher or separate rating under Diagnostic Codes 5250, 5254, or 5255, respectively. The Board acknowledges that in advancing this appeal, the Veteran, believes that his disability is more severe than the assigned disability rating reflects. However, in circumstances like this, the Board accords more probative value to medical clinicians trained to perform testing and interpret testing results in relation to the severity of a disability. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Ultimately, there is no competent evidence that support a compensable rating in this case. Further, the level of disability has been consistent throughout the appeal and a staged rating is not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). There are no additional expressly or reasonably raised issues presented on the record. ORDER A compensable rating for residuals of right pelvis fracture is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs