Citation Nr: 1804701	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  15-14 879	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUE

Entitlement to an initial compensable rating for degenerative joint disease of the right hip, limitation of extension.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Martha R. Luboch, Associate Counsel



INTRODUCTION

The Veteran had active duty service from April 1957 to November 1982.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional office (RO) in Providence, Rhode Island.

As previously noted, in July 2016, the Board denied entitlement to an initial compensable rating for degenerative joint disease of the right hip, limitation of extension, and entitlement to an initial compensable rating for bilateral hearing loss.  The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court).  The Veteran waived any appeal as to the issue of entitlement to an initial compensable rating for bilateral hearing loss.  In March 2017, the Court granted a Joint Motion for Remand (JMR), which vacated the July 2016 Board decision with regard to the issue of entitlement to a compensable initial rating for degenerative joint disease of the right hip, limitation of extension, and remanded the matter back to the Board for further consideration consistent with the terms of the JMR.

In June 2017, the Board remanded the Veteran's appeal for further development.  A review of the record reveals that the Veteran was afforded a VA examination for his right hip in July 2017.  As such, the Board finds that there has been substantial compliance with its prior remand directives.  See Stegall v. West, 11 Vet. App. 265 (1998). 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).



FINDING OF FACT

When considering functional impairment caused by factors such as pain, weakness, fatigability, incoordination or pain on movement, as well as flare-ups, the Veteran's right hip disability more nearly approximates limitation of extension to 5 degrees or less.


CONCLUSION OF LAW

For the entire appeal period, the criteria for assignment of a 10 percent rating for limitation of extension of the right hip have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.71a, Diagnostic Codes 5250-5255 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Neither the Veteran nor his representative has raised any issues with regard to VA's duty to notify or assist.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Increased Rating - Right Hip, Limitation of Extension

The Veteran seeks entitlement to an initial compensable rating for limitation of extension of the right hip.  As noted above, he has been assigned separate 10 percent ratings for limitation of flexion and limitation of adduction of the right hip.  Neither of these ratings is on appeal at this time.  Therefore, the Board will only consider whether an increased rating is warranted for limitation of extension.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10 (2017).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).  When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2017).

When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination.  38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995).  The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion.  Johnson v. Brown, 9 Vet. App. 7 (1996). 

Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59 (2017).  Where functional loss is alleged due to pain upon motion, the function of the musculoskeletal system and movements of joints must still be analyzed.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant.  Johnston v. Brown, 10 Vet. App. 80 (1997).  Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion.  However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance.  Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

The regulations preclude the assignment of separate ratings for the same manifestations under different diagnoses.  The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions.  38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259 (1995).

Diagnostic Codes 5010 is used for rating traumatic arthritis and provides that arthritis due to trauma that is substantiated by x-ray findings is to be rated as degenerative arthritis, under DC 5003.  In the case at hand, the Veteran's right hip disability has already been assigned multiple 10 percent ratings based on limitation of motion.  Therefore, the provisions pertaining to the assignment of at least a minimal compensable rating for limitation of motion of the right hip have already been applied and are no longer for consideration in this case.

Limitation of extension of the hip is rated as limitation of extension of the thigh under 38 C.F.R. § 4.71a, Diagnostic Code 5251.  This diagnostic code provides a maximum rating of 10 percent for limitation of extension of the hip to 5 degrees.  This is the only diagnostic code that specifically rates limitation of extension of the hip.

Turning to the evidence of record, the Veteran underwent VA hip examinations in September 2014, March 2016, and July 2017.

The September 2014 examination report notes that the Veteran's extension was to greater than five degrees, and there was objective evidence of painful motion at five degrees.  On VA examination in March 2016, the Veteran had hip extension from 0 to 15 degrees.  It was noted that pain on examination, including extension, resulted in functional loss.  Extension after three repetitions was from 0 to 15 degrees, and functional loss was due to pain, fatigue, weakness, lack of endurance, and incoordination.  The Veteran reported having hip flare-ups three to four times per week during which his hip pain went from 8 to 10 in pain.  He reported having functional loss or functional impairment, specifically noting that his hips are very painful when he is getting up from his chair and getting out of his car.  The Veteran was afforded another VA examination in July 2017.  On examination, the Veteran reported flare-ups, in which his pain was "worse with cold, rainy weather, and when he is standing for a while. . .  He has difficulty getting up from a chair and standing for long periods of time."  On examination, the Veteran had right hip extension from 0 to 15 degrees, with functional loss due to pain.  Objective evidence of pain during active and passive range of motion testing was noted.  There was also objective evidence of pain when the joint was used in non-weightbearing.

Simply put, here, the record is clear that the Veteran has not objectively demonstrated on VA examination that he had extension limited to five degrees.  Thus, facially, the criteria for a higher initial rating based upon limitation of extension under DC 5251 have not been met. 

However, the Board must also consider additional functional loss due to symptoms such as pain, repetitive motion, and flare-ups.  38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell, 25 Vet. App. at 44; Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017).  At worst, the Veteran objectively demonstrated loss of extension in the right hip greater than five degrees with objective evidence of painful motion at 5 degrees.  The Veteran has provided competent and credible reports regarding limited ability to stand for long periods of time and difficulty getting up from his chair.  None of the VA examiners have provided an estimated motion loss for periods of flare-ups from increased activity.  Sharp, supra.  

The Board acknowledges that it cannot be stated with certainty as to the precise limitation of motion experienced during flare-up periods.  However, the record is reasonably clear that the Veteran experiences additional motion loss in his hips during certain times, to include when the weather is rainy or cold.  Specifically, getting up from a chair requires thrusting of the hips forward.  This suggests that extension is more limited than noted on examination.  Thus, to account for additional motion loss during periods of activity or flare-ups, the Board grants an additional 10 percent rating under DC 5251 for estimated loss of extension during flare-up periods.  

The Board recognizes that the Veteran has been assigned a 10 percent rating based on limitation of flexion of the hip as a result of painful motion.  However, here, the Board is not granting a separate 10 percent rating under DC 5251 based on pain.  Instead, the Board is granting a separate 10 percent rating because the Veteran has reported flare-ups that result in actual loss of motion.  Therefore, assigning this additional rating does not constitute pyramiding.  

There is no higher rating for limitation of extension.  As a result, this decision represents a full grant of the benefit sought on appeal for this specific rating.  As noted above, the Veteran is also separately rated for right hip based on limitation of adduction and flexion.  These issues are not currently before the Board as the Veteran limited his appeal.  As such, a 10 percent rating for limitation of extension of the right hip is warranted.  


ORDER

Entitlement to an initial 10 percent rating for degenerative joint disease of the right hip, limitation of extension, is granted.



____________________________________________
H.M. WALKER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs