Citation Nr: 18149272 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 14-09 320 DATE: November 9, 2018 ORDER Entitlement to an increased rating of 40 percent, but no higher, for fibrous dysplasia, left ilium with degenerative joint disease left hip from is granted, subject to the law and regulations governing the award of monetary benefits. FINDING OF FACT It is as likely as not that the Veteran’s limitation of hip flexion is limited to approximately 10 degrees during flare-ups, which he reports happen several times a week and last for several days at a time. Ankylosis of the hip is never shown. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, the criteria for an evaluation of 40 percent, but no higher, for fibrous dysplasia, left ilium with degenerative joint disease left hip from April 15, 2010 are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5299-5252. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1983 to July 1984 and from January 1985 to August 1987. The Veteran testified before the undersigned Veterans Law Judge during a December 2016 videoconference hearing; a transcript is of record. The Board previously remanded the issue for further development in January 2018. The case has now been returned to the Board for appellate review. Left hip Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is a guide in the evaluation of disability resulting from all types of diseases and injuries resulting from or incident to military service. 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; 38 C.F.R. § 4.1. Separate ratings can be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s service connected disability is rated under Diagnostic Code (DC) 5299-5253. The Board notes that hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the DC number will be “built-up” as follows: the first two digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved, in this case, the musculoskeletal system, and the last two digits will be “99” for all unlisted conditions. Then, the disability is rated by analogy under a DC to a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. The Board has considered the applicability of other diagnostic codes. As discussed below, Diagnostic Code 5252 also contemplates impairment to the thigh. In this case, given the clinical evidence of record, the symptoms and pathology associated with the Veteran’s service-connected disability, can be most appropriately rated under DC 5252. In this regard, the record shows that the Veteran has never manifested ankylosis of the left hip and examinations performed throughout the claims period have not demonstrated a flail joint or impairment of the femur (to include fractures or malunion). Moreover, the June 2018 VA examiner specifically found that these conditions were not present. Therefore, the Board finds that Diagnostic Codes 5250, 5254, and 5255 are not for application in this case. Normal hip motion is defined as flexion from zero to 125 degrees and abduction from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II. Under DC 5252, ratings for limitation of flexion of the thigh are assigned as follows: flexion limited to 45 degrees warrants a 10 percent evaluation; flexion limited to 30 degrees is 20 percent disabling; flexion limited to 20 degrees warrants a 30 percent evaluation; flexion limited to 10 degrees is 40 percent disabling. 38 C.F.R. § 4.71a, DC 5252. An April 2010 private treatment record from a surgery and sports medicine clinic indicates that the Veteran was referred by a VA doctor to the private doctor for a potential hip replacement and he sought a second opinion. During the session, he reported having constant pain for 24/7. He also reported that he could not walk, run, or do anything active and that he has a leg length discrepancy on the left side and it was getting worse over the years. During this visit, flexion was found to about 8 degrees; internal rotation only 5-10 degrees with significant groin discomfort; external rotation to about 15 to 20 degrees, with groin discomfort; and abduction 20 degrees with pain and groin discomfort. He was about an inch short on that side, compared to the right side. He had some muscle atrophy of that leg because of his constant favoring of that side. This private physician concurred with the recommendation for a hip replacement procedure. At a December 15, 2010 VA examination, the examiner noted that the Veteran’s flare-up involves both hip and lower back as a unit and a 50 percent reduction in functional loss during flare-ups. The Veteran reported 3 weeks of flare-ups in the past year. Stiffness and locking were noted, but no giving way or instability, swelling, or redness was noted. The range of motion testing results for the left hip are as follows: flexion to 60 degrees with pain at 60. Extension 0-15 degrees with pain at 15 degrees, abduction 0-5 degrees with pain at 5 degrees, adduction 0-25 degrees with no pain; internal rotation 0-5 degrees with pain at 5 degrees; external rotation 0-45 degrees with pain at 45 degrees. The Veteran was not able to cross leg. With repetition of all the motions, there was no loss of motion secondary to pain, weakness, or lack of endurance. No ankylosis was found. On examination in December 2013, he reportedly had 80 degrees of flexion. No mention of flare-ups was recorded. At the most recent June 2018 VA examination, the Veteran reported that it was difficult for him to get in and out of a bathtub, dress, and find a comfortable position to sleep during a flare-up. Flare-ups occur 2-3 times per week and each episode lasts for one to three days. A 75 percent reduction in functional loss during flare-ups is reported. The range of motion testing results for the left hip are as follows: flexion to 60 degrees; extension to 10 degrees; abduction to 25 degrees; adduction to 5 degrees. It was noted that he was not having a flare-up at the time of the examination. Moreover, adduction was limited so that the Veteran could not cross legs. The external rotation was to 40 degrees and internal rotation to 40 degrees. The loss in range of motion is inability to cross step, difficulty in climbing stairs due to poor flexion. Pain was noted on exam and causes functional loss in all ranges of motion. There was evidence of pain with weight bearing with localized tenderness or pain on palpation of left iliac wing, but no crepitation was noted. No ankylosis was found. The Veteran sometimes uses a cane to assist walking. Pain was noted in passive range of motion and in non-weight bearing motion. The examiner noted that both hips are damaged, but the right hip is not affected by the dysplasia. When asked if range of motion would fluctuate from 8 to 80 degrees over the span of 3 years, the examiner stated: If an exam conducted during a flare of the left hip condition, it is possible for flexion of the hip to be restricted as such. Based on the evidence summarized above, the Board finds, resolving all reasonable doubts in Veteran’s favor, that the Veteran’s pain on motion and functional loss due to left hip disability as symptomatology of fibrous dysplasia warrants a 40 percent evaluation under Diagnostic Code 5252. It is more likely than not that the Veteran was having a flare-up episode during the April 2010 private evaluation based on his report of constant pain and the opinion provided by the June 2018 examiner. At the VA examinations, the Veteran’s flexion was noted much better than the one in April 2010, but these examinations were conducted when there was no flare-up. In any case, both VA examinations indicate that the functional limitation due to flare-up steadily increased over the years. The occurrence and duration of flare-up episodes seem to have increased as well. The evidence indicates that the Veteran’s hip condition exhibits no improvement over the years since he was suggested for a hip replacement procedure.   An evaluation in excess of 40 percent is not warranted, since the Veteran has no ankylosis, or flail hip joint, or a femur impairment and the diagnostic codes encompass the Veteran’s subjective and objective symptoms, which are manifested as pain, limited range of motion, and functional loss due to pain and decreased range of motion. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel