Citation Nr: 18148267 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 17-61 891 DATE: November 7, 2018 ORDER Entitlement to at least a compensable, 10 percent, rating for lost flexion of the left hip is granted. Entitlement to at least a compensable, 10 percent, rating for lost abduction or rotation of the left hip is granted. Entitlement to at least a compensable, 10 percent, rating for lost flexion of the right hip is granted. REMANDED Entitlement to a rating in excess of 10 percent for lost flexion of the left hip is remanded. Entitlement to a rating in excess of 10 percent for lost abduction or rotation of the left hip is remanded. Entitlement to a rating in excess of 10 percent for lost flexion of the right hip is remanded. Entitlement to a rating in excess of 10 percent for a back disability is remanded. Entitlement to a rating in excess of 10 percent for left leg radiculopathy is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran has pain with lost motion with flexion of the left hip at all times during the pendency of the appeal. 2. The preponderance of the evidence shows that the Veteran has pain with lost motion with abduction or rotation of the left hip at all times during the pendency of the appeal. 3. The preponderance of the evidence shows that the Veteran has pain with lost motion with flexion of the right hip at all times during the pendency of the appeal. CONCLUSIONS OF LAW 1. The criteria for at least a 10 percent rating for lost flexion of the left hip have been met at all times during the pendency of the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. 2. The criteria for at least a 10 percent rating for lost abduction or rotation of the left hip have been met at all times during the pendency of the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253. 3. The criteria for at least a 10 percent rating for lost flexion of the right hip have been met at all times during the pendency of the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from November 1984 to November 1986. The Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s lost flexion of the left and right hips are rated as non-compensable under 38 C.F.R. § 4.71a, Diagnostic Code 5252 and lost abduction or rotation of the left hip is rated as non-compensable under 38 C.F.R. § 4.71a, Diagnostic Code 5253. Diagnostic Code 5252 provides a 10 percent rating for limitation of thigh flexion to 45 degrees, a 20 percent rating for limitation of thigh flexion to 30 degrees, a 30 percent rating for limitation of thigh flexion to 20 degrees, and a 40 percent rating for limitation of thigh flexion to 10 degrees. Diagnostic Code 5253 provides a 10 percent rating for impairment of the thigh with rotation limited so the claimant cannot toe-out more than 15 degrees and a 20 percent rating for impairment of the thigh with abduction lost beyond 10 degrees. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board finds that the evidence supports assigning at least 10 percent ratings for the Veteran’s lost flexion of the left and right hips under Diagnostic Code 5252 and lost abduction or rotation of the left hip under Diagnostic Code 5253. In this regard, the Board notes that at all times during the pendency of the appeal the Veteran has complained of, in substance, pain with flexion of the left and right hip as well as with abduction or rotation of the left hip. Likewise, both the June 2015 and June 2016 VA examinations provide objective evidence of the Veteran having pain when moving her left and right hip. Specifically, when examined by VA in June 2015 the Veteran reported having problems with bilateral hip pain and decreased mobility. On examination, it was opined that she had abnormal range of motion in both hips as well as pain. Specifically, after repletion, the right hip flexion was reduced at 75 degrees and left hip flexion was reduced at 75 degrees, abduction was reduced at 20 degrees, external rotation was reduced at 35 degrees, and internal rotation was reduced at 20 degrees. (Normal range of the hip is flexion to 125 degrees and abduction to 45 degrees. 38 C.F.R. § 4.71a, Plate II). Similarly, when examined by VA in June 2016 the Veteran reported that she continued to have problems with progressively worsening pain and limitation of movement with flexion of the left and right hip as well as abduction and rotation of the left hip. The examiner thereafter noted that July 2015 hip x-rays for the first time showed she had bilateral osteoarthritis. It was also opined that this arthritis was a progression of the Veteran’s service connected hip strains. On examination, it was once again opined that she had abnormal range of motion in both hips as well as pain. Specifically, after repletion, the right hip flexion was reduced at 95 degrees. The range of motion of the left hip was flexion to 120 degrees, abduction was reduced at 40 degrees, external rotation was reduced at 50 degrees, and internal rotation was reduced at 35 degrees. Similarly, the Board notes that the Veteran’s treatment records document her periodic complaints and treatment for pain with motion of the left and right hip. The Board finds the Veteran complaints of pain with flexion of the left and right hip as well as with abduction or rotation of the left hip both competent and credible because it is something she can feel and it is consistent with the nature of her service-connected disability as well as the findings by the VA examiner. See Davidson, supra. Thus, taking into account 38 C.F.R. §§ 4.40, 4.45 4.59 as well as the Court holding in Burton, supra, the Board finds that the Veteran’s symptoms meet the criteria for at least 10 percent ratings under Diagnostic Code 5252 or Diagnostic Code. See 38 C.F.R. § 4.71a; Owens, supra; Hart, supra. REASONS FOR REMAND Entitlement to ratings in excess of 10 percent for lost flexion of the left and right hips, lost abduction or rotation of the left hip, and a back disability are remanded. The Board granted the above in order to address the issues it could (as the Veteran has been waiting a great deal of time). As to the claims for ratings in excess of 10 percent for lost flexion of the left and right hips, lost abduction or rotation of the left hip, and a back disability, the Board finds that these issues need to be remanded to provide the Veteran with VA examinations because the existing VA examinations, including the June 2016 VA examinations, do not included range of motion testing in both active and passive motion, weight-bearing, and non-weight-bearing situations as well as opinions as to the Veteran’s range of motion during flare-ups and a comparison between the service connected joint with the non service-connected opposite joint. See 38 U.S.C. § 5103A(d); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Given the Veteran’s ongoing treatment at VA, while the appeal is in remand status any outstanding medical records should be obtained and associated with the record on appeal. See 38 U.S.C. § 5107A(b). Entitlement to a rating in excess of 10 percent for left leg radiculopathy and for a TDIU are remanded. Initially, the Board finds that the record raises a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). If this is in error, the Veteran should let us know, in writing. As to the claims for a rating in excess of 10 percent got left leg radiculopathy and for a TDIU, the Board finds that they must ne remanded because their adjudication is inextricably intertwined with the above remanded claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). As to the claim for a TDIU, the Board also finds that while this issue is in remand status the agency of original jurisdiction should provide the Veteran with notice of the laws and regulations governing these claims as well as request that she complete and return to VA a fully executed TDIU claim form. See 38 U.S.C. §§ 5107, 5107A; Dingess v. Nicholson, 19 Vet. App. 473 (2006). These matters are REMANDED for the following actions: 1. Associate with the claims file the Veteran’s contemporaneous VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran herself should submit and new pertinent evidence the Board/VA does not have (if any). 3. Provide the Veteran with notice of the laws and regulations governing TDIU claims. 4. Ask the Veteran to complete and return a fully executed TDIU claim form. 5. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of her lost flexion of the left and right hips, lost abduction or rotation of the left hip, back disability, and left leg radiculopathy. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a review of the claims file, any needed testing, and an examination of the Veteran, the examiner should provide answers to the following questions: (a) The examiner should identify all hip, back, and lower extremity neurological pathology found to be present during the pendency of the appeal. (b) The examiner should conduct all indicated tests and studies, to include range of motion studies. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (c) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (d) The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experiences during a flare-up of symptoms and/or after repeated use over time. (e) Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited left hip flexion, abduction, and rotation; right hip flexion; and back forward flexion, backward extension, left and right lateral flexion, and left and right rotation caused by functional loss during a flare-up and after repeated use over time. (f) If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups and/or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (g) As to the left and right hips the examiner should also state whether the Veteran also has a problem with flail joint and/or an impaired femur and, if she does, the nature, extent, and severity of these other disabilities. (h) As to the back, the examiner should also state the nature, extent, and severity of the left extremity radiculopathy as well as any right extremity radiculopathy. (i) As to the back, the examiner should state the number of weeks of incapacitating episodes in each 12-month period during the pendency of the appeal. (j) As to the back, the examiner should state the nature, extent, and severity of any loss of sphincter and bladder control caused by her service-connected disability. In providing the opinions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. (Continued on the next page)   If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel