Citation Nr: 18154023 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 13-21 490 DATE: November 28, 2018 ORDER Entitlement to an initial increased rating for limitation of extension of the thigh due to degenerative joint disease of the left hip associated with degenerative joint disease, left hip, in excess of 10 percent, effective January 25, 2016, is denied. FINDING OF FACT The Veteran is already in receipt of the maximum rating assignable for limitation of extension (i.e. 10 percent) of the left hip. CONCLUSION OF LAW The criteria for an initial increased rating for limitation of extension of the thigh due to degenerative joint disease of the left hip associated with degenerative joint disease, left hip, in excess of 10 percent, effective January 25, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1953 to February 1956. The Veteran appeals a June 2013 rating decision from the Department of Veteran Affairs (VA) Regional Office (RO) in Los Angeles, California. This case arises from an April 2018 Board remand order. The April 2018 Board remand order requested that the RO re-adjudicate the Veteran’s initial increased rating claim for limitation of extension of the thigh due to degenerative joint disease of the left hip associated with degenerative joint disease, left hip, in excess of 10 percent. The RO re-adjudicated the issue because of new VA examinations in February 2016 and May 2017. Subsequently, the RO issued a supplemental statement of the case in October 2018. The Veteran declined a Board hearing in his June 2013 VA Form 9. The Board notes that an October 2018 rating decision granted the Veteran’s claim for total disability for individual unemployability. Increased Rating The Veteran contends that he is warranted to an initial increased rating in excess of 10 percent for limitation of extension of the thigh due to degenerative joint disease of the left hip associated with degenerative joint disease, left hip. Disability evaluations are determined by comparing the Veteran’s present symptomatology with the criteria set forth in the VA’s Schedule for Ratings Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial increased rating for limitation of extension of the thigh due to degenerative joint disease of the left hip associated with degenerative joint disease, left hip, in excess of 10 percent, effective January 25, 2016 The Veteran’s limitation of extension of the thigh due to degenerative joint disease of the left hip associated with degenerative joint disease, left hip is rated under Diagnostic Code 5251. Under Diagnostic Code 5251, 10 percent is the maximum rating assignable for a limitation of extension to 5 degrees. The Board notes that November and March 2014 Board decisions determined that the July 2014, and November 2012 VA examinations were inadequate for rating purposes. As such, only the February 2016 and May 2017 are adequate for rating purposes. The Veteran underwent a VA examination in February 2016. The Veteran reported that his flare-ups in his left hip cause pain in his right and left hips with pain in his left thigh. The Veteran stated that his flare ups prevent the Veteran from taking long walks. The VA examiner observed the following initial range of movement (ROM) limitations for the Veteran’s left hip: flexion – 55; extension – 30; abduction – 20; adduction – 10; external rotation – 25; internal rotation – 20. The Veteran’s limited adduction does not result in inability to cross legs. The Veteran’s ROM limits the Veteran’s ability to jump, and run. Pain was noted to cause a functional loss in all movements, and there was evidence of pain with weight bearing. The VA examiner noted no additional loss of function or ROM after three repetitions. The Veteran’s pain, fatigue, and lack of endurance significantly limit functional ability. The VA examiner noted full muscle strength, no muscle atrophy, ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. Finally, the Veteran must constantly use a cane. The Veteran was afforded another VA examination in May 2017. The Veteran reported that his flare-ups in his left hip cause a shooting pain down his left leg, back, and hips. The Veteran’s flare-ups limit his ability to walk. The VA examiner observed the following initial ROM limitations for the Veteran’s left hip: flexion – 90; extension – 20; abduction – 30; adduction – 15; external rotation – 15; internal rotation – 10. The Veteran cannot cross legs due to adduction. The Veteran’s ROM limits the Veteran’s ability to jump. Pain was noted to cause a functional loss in all movements, and there was evidence of pain with weight bearing. The VA examiner noted objective evidence of localized tenderness, pain on palpation of the joint, and severe sharp pain anteriorly. The VA examiner noted no additional loss of function or ROM after three repetitions. The Veteran had less movement than normal, and disturbance of locomotion. The VA examiner noted full muscle strength, no muscle atrophy, ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. Finally, the Veteran must constantly use a cane. Based on the above, the Board finds that an initial increased rating in excess of 10 percent for limitation of extension of the thigh due to degenerative joint disease of the left hip associated with degenerative joint disease, left hip is rated under Diagnostic Code 5251, is not warranted. The Veteran’s extension of left hip is currently rated at 10 percent. Under Diagnostic Code 5251, a 10 percent rating is the maximum rating assignable for limitation of extension to 5 degrees. As such, a rating in excess of 10 percent is not permitted. The Board notes that the Veteran’s left hip is already rated under Diagnostic Codes 5253, and 5252. The February 2016 and May 2017 VA examinations noted that the Veteran did not have ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. As such, a rating under Diagnostic Codes 5250, 5254, or 5255 is not warranted. Finally, the Board’s findings do not, in any way, suggests the Veteran does not have problems with his limitation of extension of the thigh due to degenerative joint disease of the left hip associated with degenerative joint disease, left hip. It is important for the Veteran to understand that a disability rating at any level will cause the Veteran problems. The only question is the degree of the problems based on the criteria above. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Timothy A. Campbell, Associate Counsel