Citation Nr: 18149336 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 06-28 161A DATE: November 9, 2018 ORDER Entitlement to a rating greater than 10 percent for a right hip disorder based on limitation of extension from November 23, 2015 to January 30, 2018 is denied. Entitlement to a 10 percent rating for a right hip disorder based on limitation of extension from January 31, 2018 is granted. Entitlement to compensable rating for a right hip disorder based on limitation of flexion is denied. Entitlement to compensable rating for a right hip disorder based on impairment of the thigh from November 23, 2015 to January 30, 2018 is denied. Entitlement to rating greater than 10 percent for a right hip disorder based on impairment of the thigh from January 31, 2018 is denied. Entitlement to a rating greater than 10 percent for a right knee disorder based on limitation of flexion is denied. Entitlement to a rating greater than 10 percent for a right knee disorder based on subluxation is denied. Entitlement to a compensable rating for a right knee disorder based on limitation of extension is denied. Entitlement to a rating greater than 10 percent for a left knee disorder based on limitation of flexion is denied. Entitlement to a separate compensable rating for abdominal scars is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s right hip disorder has been manifested throughout this appeal by flexion limited to no less than 85 degrees and extension limited to no less than 20 degrees. Also, there is no competent evidence of ankylosis, a flail joint, or impairment of the femur associated with this disability. 2. As of January 31, 2018, the Veteran cannot cross her legs because of the adduction her right hip disorder causes. 3. The Veteran’s right knee disorder has been manifested throughout this appeal by flexion limited to no less than 110 degrees and extension limited to no less than 0 degrees. 4. The Veteran’s right knee disorder has been manifested throughout this appeal by no more than slight, recurrent subluxation. 5. The Veteran’s left knee disorder has been manifested throughout this appeal by flexion limited to no less than 100 degrees. 6. The Veteran's service-connected abdominal scars are not painful, unstable, or measure an area greater than 6 square inches. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent for a right hip disorder based on limitation of extension from November 23, 2015 to January 30, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5251. 2. The criteria for a rating of 10 percent for a right hip disorder based on limitation of extension from January 31, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5251. 3. The criteria for a compensable rating for a right hip disorder based on limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5252. 4. The criteria for a compensable rating for a right hip disorder based on impairment of the thigh from November 23, 2015 to January 30, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5253. 5. The criteria for a rating greater than 10 percent for a right hip disorder based on impairment of the thigh from January 31, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5253. 6. The criteria for a rating greater than 10 percent for right knee and left knee disorders based on limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5260. 7. The criteria for a rating greater than 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 8. The criteria for a compensable rating greater for a right knee disorder based on limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5261. 9. The criteria for a compensable evaluation for abdominal scars have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118 including Diagnostic Codes 7800-7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from April 1980 to April 1983, October 1990 to July 1991, and from January 2004 to December 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of October 2015, July 2016, and March 2017 of a Regional Office (RO) of the Department of Veterans Affairs (VA). Increased Rating Disability ratings are determined by applying the criteria set forth in the Rating Schedule. 38 C.F.R. Part 4 (2018). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). 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 these elements. The 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 innervations, 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. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. As such, the Veteran’s reports of pain have been considered in conjunction with the Board’s review of the limitation of motion diagnostic codes. Issue 1: Entitlement to a rating greater than 10 percent for a right hip strain based on limitation of extension from November 23, 2015 to January 30, 2018. Issue 2: Entitlement to a compensable rating for a right hip strain based on limitation of extension from January 31, 2018. Issue 3: Entitlement to compensable rating for a right hip strain based on limitation of flexion. Issue 4: Entitlement to compensable rating for a right hip strain based on impairment of the thigh from November 23, 2015 to January 30, 2018. Issue 5: Entitlement to rating greater than 10 percent for a right hip strain based on impairment of the thigh from January 31, 2018. Right Hip The provisions of 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5250 to 5255 provide the criteria for rating hip and thigh disabilities. Full hip range of motion is defined as 0 to 125 degrees in hip flexion, 0 to 30 degrees in hip extension, and 0 to 25 degrees in hip adduction. See 38 C.F.R. § 4.71, Plate II. VA has assigned the Veteran’s hip disorder separate ratings for limitation of extension, flexion, and adduction. VA has rated the limitation of extension as 10 percent disabling under DC 5251 from November 23, 2015 to January 30, 2018, and as noncompensable from January 31, 2018. VA has rated the limitation of flexion as noncompensable under DC 5252. VA has rated the limitation of adduction as noncompensable under DC 5253 from November 23, 2015 to January 30, 2018, and as 10 percent disabling from January 31, 2018. VA examined the Veteran three times for compensation purposes during the 12-year pendency of her appeal – August 2015, June 2016, and January 2018. The Veteran’s extension measured 25 degrees in 2015, 30 degrees in 2016, and 30 degrees in 2018. After repetitive use testing, extension measured 25 degrees in 2015, 20 degrees in 2016, and 30 degrees in 2018. Thus, of the three examinations, there was only a functional loss due to pain in 2016. The Veteran's flexion measured 100 degrees in 2015, 90 degrees in 2016, and 90 degrees in 2018. After repetitive use testing, flexion measured 90 degrees in 2015, 85 degrees in 2016, and 90 degrees in 2018. Thus, of the three examinations, there was functional loss due to pain in 2015 and 2016, but not 2018. The Veteran’s adduction measured 25 degrees in 2015, 25 degrees in 2016, and 20 degrees in 2018. After repetitive use testing, adduction measured 25 degrees in 2015, 20 degrees in 2016, and 20 degrees in 2018. Thus, of the three examinations, there was only functional loss due to pain in 2016. Considering the above measurements and the criteria of DCs 5251, 5252, and 5253, the Veteran does not merit increased ratings. The ratings for extension and adduction are intertwined. For extension, although the Veteran did not meet the criteria required for a 10 percent rating under DC 5251 (extension limited to 5 degrees), VA assigned a 10 percent rating from November 23, 2015 to January 30, 2018 because of her painful motion under DC 5024. VA reduced the Veteran's rating to noncompensable on January 31, 2018 a) because her extension improved, and b) because it increased her adduction rating because it prevented her from crossing her legs (the criterion for a 10 percent rating under DC 5253). Notwithstanding the marginal improvement in the Veteran's extension, the basis for VA's initial 10 percent rating did not change over the three examinations, so VA erred in reducing the rating. Increasing the Veteran's adduction rating does not mean that her extension rating must correspondingly be reduced. The undersigned will restore the 10 percent rating for extension, the maximum rating available under DC 5251. For adduction, there is no indication – either in VA examinations or treatment records – that the Veteran's adduction prevented her from crossing her legs prior to the 2018 examination. Additionally, there is no indication – either in VA examinations or treatment records – that the Veteran has limitation of abduction such that motion is lost beyond 10 degrees during the pendency of the appeal. Therefore, she is not entitled to the next highest rating under DC 5253. For flexion, a 10 percent rating is merited under DC 5252 if flexion is limited to 45 degrees. The Veteran's flexion measured – at worst – 85 degrees with pain during the pendency of the appeal, so she does not merit a compensable rating. Finally, DCs 5250, 5254, and 5255 do not apply because there is no competent medical or lay evidence that the Veteran has ankylosis or a flail hip joint, nor is there competent evidence of any fracture or malunion of the Veteran’s right femur. Issue 6: Entitlement to a rating greater than 10 percent for a right knee disorder based on limitation of flexion. Issue 7: Entitlement to a rating greater than 10 percent for a right knee disorder based on subluxation. Issue 8: Entitlement to a compensable rating for a right knee disorder based on limitation of extension. Issue 9: Entitlement to a rating greater than 10 percent for a left knee disorder based on limitation of flexion. Bilateral Knee Disorders Normal range of knee motion is from 0 degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71, Plate II. VA has assigned the Veteran’s right knee disorder separate ratings for limitation of flexion, subluxation, and limitation of extension. VA has rated the limitation of flexion as 10 percent disabling under DC 5260. VA has rated the subluxation as 10 percent disabling under DC 5257. VA has rated the limitation of extension as noncompensable under DC 5261. As with the right knee, VA has rated the limitation of flexion in the Veteran's left knee as 10 percent disabling under DC 5260. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate codes for the specific joint or joints involved (here, Diagnostic Codes 5260 or 5261 for the knees). If the limitation of motion is noncompensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5257, a 10 percent disability rating is assigned for slight recurrent subluxation or lateral instability. A 20 percent disability rating is warranted when there is moderate recurrent subluxation or lateral instability, and a 30 percent disability rating requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5258 provides that a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5260, limitation of flexion of the leg at the knee is rated at 10 percent if limited to 45 degrees, at 20 percent if limited to 30 degrees, and at 30 percent, which is the maximum evaluation available, if limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, limitation of extension of the leg at the knee is rated at 0 percent if limited to 5 degrees, at 10 percent if limited to 10 degrees, 20 percent if limited to 15 degrees, at 30 percent if limited to 20 degrees, at 40 percent if limited to 30 degrees, and at 50 percent if extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. VA examined the Veteran four times for compensation purposes during the 12-year pendency of her appeal – March 2007, December 2010, August 2015, and January 2018. Unfortunately, the first two of these examinations are inadequate for rating purposes because they fail to comply with Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the United States Court of Appeals for Veterans Claims held that the final sentence of 38 C.F.R. § 4.59 requires that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Specifically, examinations should report all ranges of motion in terms of the Veteran’s active motion, passive motion, weight-bearing motion, and non-weight-bearing motion. In 2015, range of motion testing in the right knee indicated flexion to 125 degrees and extension to 0 degrees. The examiner indicated less movement than normal and evidence of pain on movement, but that the "pain noted on exam... does not result in / cause functional loss." However, after repetitive motion testing, the Veteran had functional loss due to pain, resulting in flexion measuring 120 degrees and extension 0 degrees. In 2015, range of motion testing in the left knee noted flexion to 125 degrees. As with the right knee, the examiner indicated less movement than normal and evidence of pain on movement, but that the "pain noted on exam... does not result in / cause functional loss." However, after repetitive motion testing, the Veteran had functional loss due to pain, resulting in flexion measuring 120 degrees and extension 0 degrees. In 2018, range of motion testing in the right knee indicated flexion to 110 degrees and extension to 0 degrees. The examiner indicated less movement than normal and evidence of pain on movement, but that the "pain noted on exam ... does not result in / cause functional loss." After repetitive motion testing, the Veteran's flexion and extension measurements did not change, and the examiner reported no functional loss. In 2018, range of motion testing in the left knee noted flexion to 100 degrees. As with the right knee, the examiner indicated less movement than normal and evidence of pain on movement, but that the pain noted on exam... does not result in / cause functional loss." The Veteran refused to perform repetitive motion testing for her left knee because of "fear of pain." The examiners in 2015 and 2018 conducted joint stability tests. Both found joint stability normal; however, in 2018 the examiner noted the Veteran had a history of slight subluxation. The Veteran denied having any meniscal conditions or surgical procedures for a meniscal condition. Treatment records do not contravene the findings of the VA examiners. Based on the evidence discussed above, the undersigned finds the Veteran does not merit higher ratings for his bilateral knee disorders. First, at no point during this period has the Veteran been found to have limitation of flexion of either knee to 60 degrees. Notwithstanding this, VA assigned a 10 percent rating bilaterally because of her painful motion. Even accounting for this painful motion, however, the Veteran's flexion does not approach limitation to 30 degrees, which is required for a 20 percent rating under Diagnostic Code 5260. Second, at no point during the appeal has the Veteran been found to have more than slight, recurrent subluxation in her right knee. A finding of moderate subluxation is required for a 20 percent rating under Diagnostic Code 5257. Third, at no point during the appeal has the Veteran been found to have limitation of extension to 10 degrees, which is required for a 10 percent rating under Diagnostic Code 5261. The undersigned has considered Diagnostic Codes 5256, 5262, and 5263, but they do not apply because there is no evidence of ankylosis, tibia and fibula impairment, or genu recurvatum at any point during the appeal. Additionally, Diagnostic Code 5259 does not apply as there is no evidence of removal of semilunar cartilage. Issue 10: Entitlement to a separate compensable rating for abdominal scars. VA has rated the Veteran's abdominal scars as noncompensable under 38 C.F.R. § 4.118, Diagnostic Code 7805, since it granted service connection in 2013. Diagnostic Code 7805 requires disabling effects of scars not considered under Diagnostic Codes 7800-7804 to be rated under an appropriate diagnostic code. VA examined the Veteran in 2015. The examiner noted 11 abdominal scars. They measured, on average 1-3 centimeters. They were not painful, were superficial, and they had no signs of inflammation or skin breakdown. They had no keloid formation, and they had “no other disabling effects,” including “no scarring to impair” range of motion. Indeed, the Veteran confirmed in a February 2018 statement that the "scars are not painful because they have no feeling in them because they have so much scar tissue [she] can pinch and pock them and there is no feeling." The undersigned has considered other Diagnostic Codes, but the undersigned finds they do not apply. Specifically, Diagnostic Code 7800 concerns scars of the face, head, or neck, but the Veteran's scars are on her abdomen. Diagnostic Code 7801 does not apply because the Veteran’s scars are superficial. Diagnostic Code 7802 does not apply because the Veteran’s scars measure an area less than 144 square inches. Diagnostic Code 7804 does not apply because the Veteran's scars are neither painful nor unstable. Simply put, because there are "no disabling effects" of these scars, the undersigned can find no Diagnostic Code under which compensation can be awarded. The undersigned notes that VA's scar regulations changed for claims, such as the Veteran's, pending before the agency on August 13, 2018. The undersigned has reviewed the amended regulations but finds that they will not provide a more favorable result. Even if the Veteran's scars could be found to have "soft tissue damage" under revised Diagnostic Code 7801, the Veteran's scars do not measure the minimum area for a compensable rating. REASONS FOR REMAND The Social Security Administration (SSA) has judged the Veteran to be disabled. VA has obtained most, but not all, of the records underlying SSA's decision. Specifically, the while records show a primary diagnosis of "osteoarthrosis and allied disorders" and a secondary diagnosis of "obesity," SSA's adjudication document is not included in these records. The Board would find this instructive to explain the "allied disorders," so remand is warranted to attempt to obtain it. The matter is REMANDED for the following action: Attempt to obtain SSA's decisional document which explains the basis upon which SSA awarded the Veteran disability compensation. Please note that this document is NOT included in the documents VA obtained from SSA in February 2018. Record all attempts to obtain this document in the claims file. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sopko