Citation Nr: 18153100 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-47 487 DATE: November 27, 2018 ORDER Entitlement to a compensable rating for left hip limitation of extension is denied. Entitlement to a compensable rating for left hip limitation of flexion is denied. Entitlement to a disability rating higher than 10 percent for left hip limitation of adduction and abduction is denied. Entitlement to a compensable rating for right hip limitation of flexion is denied. Entitlement to a compensable rating for right hip limitation of extension is denied. Entitlement to a disability rating higher than 10 percent for right hip limitation of adduction and abduction is denied. FINDINGS OF FACT 1. For the entirety of the appeal period, the Veteran's left hip disability has not been manifested by flexion limited to 45 degrees or less, extension limited to 5 degrees or less, or abduction or adduction limited such that the Veteran could not cross his legs. 2. For the entirety of the appeal period, the Veteran’s right hip disability has not been manifested by flexion limited to 45 degrees or less, extension limited to 5 degrees or less, or abduction or adduction limited such that the Veteran could not cross his legs. 3. The Veteran has left hip has arthritis evidenced by x-ray and some degree of limitation of motion. 4. The Veteran has right hip has arthritis evidenced by x-ray and some degree of limitation of motion. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for a compensable disability rating for left thigh limitation of extension have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5251 (2017). 2. For the entire appeal period, the criteria for a compensable disability rating for left thigh limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5252 (2017). 3. For the entire appeal period, the criteria for a disability rating higher than 10 percent for left thigh limitation of abduction or adduction have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5253 (2017). 4. For the entire appeal period, the criteria for a compensable disability rating for right thigh limitation of extension have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5251 (2017). 5. For the entire appeal period, the criteria for a compensable disability rating for right thigh limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5252 (2017). 6. For the entire appeal period, the criteria for a disability rating higher than 10 percent for right thigh limitation of abduction or adduction have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71a, Diagnostic Code 5253 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1971 to November 1973, May 2006 to August 2007 and from May 2011 to July 2012. Increased Rating Left and Right Hip Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, however, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever 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). Degenerative or traumatic arthritis, established by x-ray findings, is rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. In the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups will warrant a 10 percent rating. Absent limitation of motion, a 20 percent rating is warranted for x-ray evidence of involvement of two or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003, 5010. In the instant case, the RO appears to have previously granted a 10 percent disability rating for each hip in view of painful or limited motion, by analogy to arthritis. The Veteran's left and right hip disabilities are rated under Diagnostic Code 5003 for degenerative arthritis, which in turn is rated under loss of motion of the affected joint, the hip. Under 38 C.F.R. § 4.71a, Diagnostic Code 5252, for limitation of flexion of the thigh, a 10 percent rating is warranted where flexion is limited to 45 degrees; a 20 percent rating where limited to 30 degrees; a 30 percent rating where limited to 20 degrees; and a maximum assignable 40 percent rating, where limited to 10 degrees. Other potentially applicable diagnostic codes include Diagnostic Code 5251, for limitation of extension of the thigh, under which a single 10 percent rating is assignable for extension limited to 5 degrees. Diagnostic Code 5253 also provides for a 10 percent evaluation when there is limitation of abduction of the thigh such that the legs cannot be crossed or there is limitation of rotation such that it is not possible to toe out more than 15 degrees. A 20 percent rating requires limitation of abduction with motion lost beyond 10 degrees. Normal range of motion for the hips consists of flexion to 125 degrees, extension to 0 degrees, and abduction to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The RO initially granted service connection for the Veteran's hip disabilities in a March 2009 rating decision, under Diagnostic Code 5003, as degenerative joint disease, bilateral hips, and assigned a 10 percent rating. In a January 2014 rating decision, the RO rated the Veteran's disability as degenerative joint disease with limited abduction and adduction, right hip, and granted separate evaluations for degenerative joint disease with limited abduction and adduction, left hip, rated as 10 percent disabling, and right and left thigh limitation of extension and flexion, with noncompensable ratings, effective July 31, 2012. In a March 2014 notice of disagreement, the Veteran stated that his right hip was getting worse by the week and that his left hip was beginning to hurt. In his September 2016 VA Form 9, the Veteran stated that he had been advised he needed a right hip replacement and the disability in both hips was more severe than the rating suggested. A review of the Veteran's medical records shows that he has consistently complained of hip pain. Initially, the pain was limited to his right hip. However, as of June 2012, he has noticed pain in his left hip as well. Per VA examinations in September 2013, June 2015, and November 2016 there was no ankylosis, malunion or nonunion of the femur, or flail hip joint. As such, rating under Diagnostic Code 5254 for hip, flail joint, or 5255 for impairment of femur is not indicated. A compensable rating under Diagnostic Code 5252 for limitation of flexion would require flexion limited to 45 degrees or less, while a compensable rating under Diagnostic Code 5251 for limitation of extension would require extension limited to 5 degrees, and a compensable rating under Diagnostic code 5253 would require limitation of abduction of the thigh such that the legs cannot be crossed or limitation of rotation such that it is not possible to toe out more than 15 degrees. None of the VA examinations that included range of motion findings document findings indicative of a compensable rating. The November 2016 VA examination noted right hip flexion to 80 degrees, extension to 15 degrees, abduction to 25 degrees and adduction to 25 degrees. This examination found no loss of motion in the left hip. The June 2015 VA examination noted right hip flexion to 70 degrees, extension to 15 degrees, abduction to 15 degrees, and adduction to 15 degrees. Left hip flexion was noted as 105 degrees, extension as 25 degrees, abduction as 45 degrees, and adduction as 25 degrees. Further at both the November 2016 and June 2015 examinations, neither internal or external rotation were impacted to a compensable degree and the Veteran was able to cross his legs. However, pain on motion was noted at both the November 2016 and June 2015 examinations. The Veteran reported that flare ups occur at both the November 2016 and September 2013 examinations. While the examiner was unable to conduct the examination during a flare up, he stated that the examination was neither consistent nor inconsistent with the Veteran's statements regarding functional loss during a flare up. The examiner further noted that there was no additional functional loss after repetitive use. The September 2013 VA examiner speculated that the additional pain experienced during a flare up may significantly limit the Veteran's functional ability; however, the Veteran stated during the November 2016 VA examination that flare ups only limit his ability to sit longer than two and a half hours. As such, the Veteran does not meet the requirements for a compensable rating for limitation of flexion, extension, or abduction or adduction for either the left or right hip. The Board notes that while the Veteran is rated under three separate diagnostic codes for limitation of movement in the hip, as no disability is compensable, the Veteran’s 10 percent rating is awarded under diagnostic code 5003. Thus, the Veteran is only entitled to a single 10 percent rating for each joint affected, in this case the left and right hip. After reviewing the pertinent evidence, it is found that the preponderance of the evidence is against the Veteran’s claims; as such the benefit of the doubt rule is inapplicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran’s claims must be denied. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Uller, Associate Counsel