Citation Nr: 18154799 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 10-28 690 DATE: November 30, 2018 ORDER A rating in excess of 10 percent for right hip limitation of flexion with painful motion is denied before June 30, 2017. A rating of 10 percent for right hip limitation of external rotation is granted for the period from April 4, 2011 to June 29, 2017. An increased rating of 100 percent for a right hip disability status post total hip arthroplasty is granted from June 30, 2017 to June 30, 2018. An increased rating of 50 percent for a right hip disability status post total hip arthroplasty is granted from July 1, 2018. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a neck disability is remanded. VETERAN’S CONTENTIONS The Veteran’s right hip disability is currently rated as 10 percent disabling before July 17, 2017 and 30 percent disabling thereafter. He contends that these ratings do not accurately reflect the severity of his disability. The Veteran is also seeking service connection for disabilities of the neck and low back. He contends that his neck and low back disabilities were caused by an injury he sustained during a basketball game while on active duty. FINDINGS OF FACT 1. Before June 30, 2017, the Veteran’s right hip limitation of flexion manifested in no more than limitation of flexion with painful motion. See VA Examinations dated September 2008, April 2011. 2. From April 4, 2011 to June 29, 2017, the Veteran’s right hip disability manifested in external rotation limited to around 10 degrees. See April 2011 VA Examination. 3. The Veteran underwent a right hip total arthroplasty at the end of June 2017. See July 2017 Private Treatment Record; November 2017 VA Examination. 4. From July 1, 2018, the Veteran’s right hip disability, status post total arthroplasty, has manifested in residuals of pain and stiffness, with limitation of motion. See November 2017 VA Examination. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right hip limitation of flexion with painful motion are not met before June 30, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5252–5010. 2. The criteria for a separate rating of 10 percent for right hip limitation of external rotation are met from April 4, 2011 to June 29, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5253. 3. The criteria for an increased rating of 100 percent for a right hip disability status post total arthroplasty are met from June 30, 2017 to June 30, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5054. 4. The criteria for an increased rating of 50 percent are met from July 1, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5054. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from October 1974 to October 1978 and in May 1991. This case is before the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Board remanded the claims for additional development in August 2017. Entitlement to Increased Ratings for a Right Hip Disability Before June 30, 2017 Before the Veteran’s right hip total arthroplasty at the end of June 2017, his service-connected right hip disability was rated based on limitation of flexion with painful motion, under diagnostic codes (DC) 5252–5010. 38 C.F.R. §§ 4.59, 4.71a; see Burton v. Shinseki, 25 Vet. App. 1 (2011). Under DC 5252, a rating in excess of 10 percent requires flexion limited to 45 degrees or less. There is no evidence at any point in the claim period of flexion limited to more than 110 degrees. See VA Examinations dated September 2008, April 2011, November 2017. Therefore, a rating in excess of 10 percent is not warranted for right hip limitation of flexion, even considering the effects of pain and use. However, as noted in the above findings of fact and conclusions of law, a separate compensable rating is warranted for limitation of external rotation to less than 15 degrees, from April 4, 2011 to June 29, 2017. See April 2011 VA Examination (noting external rotation limited to around 10 degrees). The Board has also considered whether separate compensable ratings may be awarded under other applicable diagnostic codes. However, the Veteran’s hip disability has not manifested in ankylosis, extension limited to 5 degrees, abduction limited to 10 degrees, adduction preventing the legs from crossing, flail joint, or fracture or malunion of the femur. See DCs 5250, 5251, 5253, 5254, 5255. Moreover, there is no evidence throughout the claim period of pain on extension, abduction, adduction, or external rotation. Therefore, separate compensable ratings are not warranted under these codes. From June 30, 2017 Under DC 5054, a hip disability status post hip replacement (total hip arthroplasty) is rated as 100 percent disabling for one year following the implantation of the prosthetic joint. The Veteran’s medical records indicate that he underwent a right hip total arthroplasty at the end of June 2017. See June 2017 VA Treatment Record; July 2017 Private Treatment Record. Therefore, an increased rating of 100 percent is warranted from June 30, 2017 to June 30, 2018. Under DC 5054, a minimum rating of 30 percent is warranted after the first year following surgery. An increased rating of 50 percent requires moderately severe residuals of weakness, pain, or limitation of motion. At a November 2017 VA examination, although the examiner noted no residuals of surgery, he nevertheless noted “pain and stiffness,” as well as limitation of external and internal rotation. Therefore, an increased rating of 50 percent is warranted for residuals of pain and limitation of motion. A rating in excess of 50 percent requires markedly severe residual weakness, pain, or limitation of motion. There is no evidence following the Veteran’s right hip total arthroplasty of markedly severe pain and stiffness, or limitation of motion more than internal rotation limited to 20 degrees and external rotation limited to 30 degrees. The Board notes in this regard the November 2017 examiner’s judgment that this level of impairment amounted to “no residuals” of surgery. In addition, the examiner noted no pain on motion or with weightbearing. Therefore, the Board finds that a rating in excess of 50 percent from July 1, 2018 is not warranted. To the extent that the VA examinations cited above failed to test passive range of motion and range of motion in non-weight-bearing conditions, the Board finds that the examinations nevertheless are adequate for VA rating purposes. Passive range of motion is the amount of motion possible when an examiner moves a body part with no assistance from the individual being evaluated. It is usually greater than active range of motion because the integrity of the soft tissue structures does not dictate the limits of movement. Comparisons between passive range of motion and active range of motion provide information about the amount of motion permitted by the associated joint structures (passive range of motion) relative to the individual’s ability to produce motion at a joint (active range of motion). Cynthia Norkin & D. Joyce White, Measurement of Joint Motion: A Guide to Goniometry 8-9 (2016). Testing the joint under weight-bearing conditions involves movement of the body against gravity. J. Randy Jinkins, et. al., Upright, Weight-bearing, Dynamic-kinetic Magnetic Resonance Imaging of the Spine: Initial Results, 15 J. Eur. Radiol. 1815-25 (2005). When evaluating range of motion, it is preferable to test in weight-bearing conditions because testing in non-weight-bearing conditions underestimates the degree of pathology present. Id. at 1823. Because there is no indication that the structural integrity of the Veteran’s right hip is compromised, such that passive range of motion in this case would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to test for limitation of motion on passive range of motion and in non-weight-bearing is not prejudicial. The Board has therefore evaluated the Veteran’s range of motion using the available findings of active range of motion. REASONS FOR REMAND Entitlement to Service Connection for a Neck Disability and a Low Back Disability Is Remanded The Veteran has been afforded two VA examinations on his claim for service connection for a low back disability, and one on his claim for a neck disability. At an April 2011 VA examination, the examiner diagnosed degenerative joint disease of the lumbar spine, but did not render a nexus opinion. At a November 2017 VA examination, the examiner diagnosed degenerative arthritis of the spine, and opined that neither the Veteran’s low back nor his neck disability were related to his active duty service. However, the November 2017 examiner failed to provide an adequate rationale for his opinion, stating only that the Veteran’s current disability was unrelated to his service due to the “long interval without evaluation, imaging, or treatment.” Significantly, the examiner failed to discuss the Veteran’s lay statements, in particular his statement that his conditions began in service and “are considered chronic.” See December 2008 Notice of Disagreement. When VA undertakes to provide an examination for a claim for service connection, even if not statutorily obliged to do so, it must provide an adequate one or, at minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, a remand is necessary to provide the Veteran with an adequate VA examination and opinion on his neck and low back claims. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. After completing the development outlined in Item 1., schedule the Veteran for a VA examination and opinion on his claims for service connection for disabilities of the neck and low back. Upon physical examination of the Veteran and a complete review of the claims file, the examiner should respond to the following: Is it at least as likely as not (50 percent probability or more) that the Veteran’s current low back disability had its onset in or is otherwise related to his active duty service, to include an injury sustained during an in-service basketball game? Is it at least as likely as not that the Veteran’s current neck disability had its onset in or is otherwise related to his active duty service, to include an injury sustained during an in-service basketball game? The examiner must provide a fully articulated medical rational for each opinion, citing to peer-reviewed medical literature referenced in formulating it, if any. The rationale should take account of and fully discuss all the Veteran’s lay statements of record, in particular his report that his neck and low back disabilities had their onset with an injury he sustained while playing basketball in service. If the examiner finds that an opinion cannot be provided, this conclusion should also be clearly explained (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Timmerman, Associate Counsel