Citation Nr: 18157337 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-09 469 DATE: December 12, 2018 ORDER Entitlement to an initial 10 percent rating for limitation of extension of the right hip is granted. Entitlement to an initial 40 percent rating for limitation of flexion of the right hip is granted. REMANDED Entitlement to service connection for a left hip disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a cervical spine disability, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for a left ankle disability, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for a right ankle disability, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected disability is remanded. Entitlement to service connection for an acquired psychiatric disorder (claimed as relationship distress with spouse), to include as secondary to a service-connected disability is remanded. Entitlement to a rating in excess of 50 percent for limitation of extension of the right knee is remanded. Entitlement to a rating in excess of 10 percent for limitation of flexion of the right knee is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s right hip disability was manifested by limitation of extension of the thigh limited to 5 degrees; ankylosis of the hip, flail joint of the hip, and impairment of the femur were not shown. 2. Throughout the period on appeal, the Veteran’s right hip disability was manifested by limitation of flexion of the thigh limited to less than 10 degrees; ankylosis of the hip, flail joint of the hip, and impairment of the femur were not shown. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, but no higher for limitation of extension of the Veteran’s right hip have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5251 (2018). 2. The criteria for an initial 40 percent rating, but no higher for limitation of flexion of the Veteran’s right hip have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5252 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 2003 to June 2003, January 2007 to March 2008, and March 2009 to September 2010, with additional National Guard service. The Veteran initially claimed entitlement to service connection for relationship distress, but treatment records suggest additional psychiatric diagnoses. Thus, the Board has characterized the claim to include any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Increased ratings The Veteran seeks entitlement to higher initial ratings for his service-connected right hip disability. His disability has been evaluated as noncompensable (0 percent) for limitation of extension under Code 5251 and as 10 percent disabling for limitation of flexion under Code 5252, both from January 25, 2013. Disability ratings are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. See 38 C.F.R. § 4.45. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Under Code 5251, which addresses extension, a 10 percent rating is warranted when thigh extension is limited to 5 degrees. 38 C.F.R. § 4.71 (a), Code 5251. Under Code 5252, which addresses flexion, a 10 percent rating is assigned when thigh flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; a 30 percent rating is assigned when flexion is limited to 20 degrees; and a 40 percent rating is assigned when flexion is limited to 10 degrees. 38 C.F.R. § 4.71 (a), Code 5252. Under Code 5253, addresses limitations on abduction and adduction of the hip, a 10 percent rating is warranted for limitation of rotation with the inability to toe-out more than 15 degrees in the affected leg and a 20 percent rating is warranted for limitation of abduction of the thigh with motion lost beyond 10 degrees. 38 C.F.R. § 4.71 (a), Code 5253. Code 5254 provides an 80 percent rating for flail joint of the hip, and Code 5250 provides ratings ranging from 60 percent to 90 percent for hip ankylosis. 38 C.F.R. § 4.71 (a), Codes 5250, 5254. Under Code 5255 addresses impairment of the femur. A 10 percent rating is warranted for malunion with slight knee or hip disability. A 20 percent rating is warranted for malunion of the femur with moderate knee or hip disability. A 30 percent rating is warranted for malunion of the femur with marked knee or hip disability. A 60 percent rating is warranted for a fracture of the femur surgical neck with false joint, and for nonunion of the femur with loose motion, weight bearing persevered with aid of a brace. Finally, an 80 rating is warranted for fracture of the femur shaft or anatomical neck with nonunion and loose motion. 38 C.F.R. § 4.71 (a), Code 5255. Full hip range of motion is defined as 0 to 125 degrees hip flexion and 0 to 45 degrees hip abduction. 38 C.F.R. § 4.71, Plate II. Separate ratings may also be assigned for limitation of flexion and limitation of extension of the same hip. Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same hip, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). On December 2013 VA examination, right hip pain due to a tensor fascia latae strain, was diagnosed. On range of motion right hip flexion was to 100 degrees, with evidence of painful motion at 5 degrees, and right hip extension was greater than 5 degrees, with evidence of painful motion at 5 degrees. Abduction was not lost beyond 10 degrees, adduction was not limited such that the Veteran could not cross his legs, and rotation was not limited so that the Veteran could not toe-out more than 15 degrees. Left hip range of motion was normal. There was no loss of range of motion on repetitive use testing. The examiner noted the Veteran’s functional impairment of his right hip included weakened movement; excess fatigability; and pain on movement. Muscle strength testing of the right hip was rated 4 out of 5 and the left hip was rated 5 out of 5 on hip flexion, abduction, and extension. The examiner noted the Veteran did not have ankylosis of either hip joint, malunion or nonunion of the femur, flail hip joint or leg length discrepancy. The Veteran reported flare-ups upon prolonged standing and ambulation, but did not describe any limitation during flare-ups. A January 2014 rating decision granted service connection for right hip pain as secondary to tensor fascia latae strain as secondary to the Veteran’s service-connected right knee disability based on the December 2013 VA examination and assigned a noncompensable (0 percent) rating for limitation of extension and a 10 percent rating for limitation of flexion, effective January 25, 2013 On September 2017 VA back examination, the Veteran’s hip flexion muscle strength was rated as 5 out of 5 bilaterally. Based on a review of the record, the Board finds that an initial 10 percent rating for limitation of extension and an initial 40 percent rating for limitation of flexion, but not higher, are warranted. On December 2013 VA examination, range of motion testing reflected that the Veteran’s right hip extension was limited to 5 degrees with evidence of pain, and his right hip flexion was limited to 100 degrees with evidence of pain at 5 degrees. The presence of pain, competently and credibly reported by the Veteran and corroborated by the examiners, was the limiting factor. Accordingly, the Board finds his extension was limited to 5 degrees and his flexion was limited to 5 degrees, and initial 10 percent and 40 ratings are warranted, respectively. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Code 5251, 5252. A rating higher than 40 degrees is not warranted as at any point during the period on appeal has the Veteran’s right hip disability shown to have been manifested in ankylosis of the right hip or flail joint of the right hip. Additionally, at no point was an impairment of his femur shown. Additionally, a separate rating under Code 5253 for impairment of the thigh is not warranted. At no point during the period on appeal was the Veteran’s right thigh shown to be impaired by abduction of motion lost beyond 10 degrees, limitation of rotation so that he cannot toe-out more than 15 degrees, or limitation of adduction that so that he cannot cross his legs. REASONS FOR REMAND With regard to the left hip, an April 2017 VA x-ray shows mild osteoarthritic changes, a different disability than the strain considered in the December 2013 VA examination. An opinion is required to determine if a nexus exists between this condition and service or a service-connected disability. Regarding the Veteran’s claim for a cervical spine disability, on December 2013 VA examination, cervial strain was diagnosed. However, the examiner did not provide an eitology opinion regarding his cervical strain because he did not have cervical pain on examination. Accordingly, the Board cannot make a fully-informed decision on the issue of service connection for a cervical spine disability because no VA examiner has opined whether his cervical strain is related to service or is caused or aggravated by a service-connected disability. Regarding the Veteran’s claims for back and bilateral ankle disabilities, the Veteran asserts that such disabilities are secondary to a service-connected disability. The Board cannot make a fully-informed decision on these issues because no VA examiner has opined whether his back or bilateral ankle disabilities have been aggravated by a service-connected disability. On December 2013 VA examination, the examiner opined that the Veteran’s service-connected right knee disability did not cause his back disability or either of his ankle disabilities, but he did not address aggravation. Regarding the Veteran’s claim for a left knee disability, the Board cannot make a fully-informed decision because no VA examiner has opined whether his left knee disability is related to his in-service report of left knee pain. Regarding the Veteran’s claim for an acquired psychiatric disability, the Veteran’s VA treatment records reflect diagnoses of mood disorder and depressive disorder during the period on appeal. The December 2013 VA examiner only addressed the Veteran’s claim for relationship distress with his spouse. Accordingly, an examination to ascertain the etiology of any psychiatric disorder diagnosed during the appeal period is necessary. See 38 C.F.R. § 3.159 (c) (4); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). While the record contains a contemporaneous VA examination regarding the Veteran’s service-connected right knee disability, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). On February 2018 VA examination the Veteran reported having flare-ups of his right knee disability resulting in limitation in his ability to stand. While the examiner stated that an opinion could not be provided without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. The Veteran’s VA treatment records reflect that he has been an active member of the National Guard through at least August 2017 and has been placed on physical profile during his National Guard service. However, a review of the claims file does not find that his complete National Guard service treatment records have been obtained. The claims file only contains his National Guard service treatment records through his last period of active duty service, ending in September 2010. Additionally, updated treatment records should be obtained. See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service treatment records, to include documents pertaining to his service in the Puerto Rico National Guard, to specifically include records after September 2010. Document all requests for information as well as all responses in the claims file. 2. Obtain the names and addresses of all medical care providers who treated the Veteran for any neck, back, ankle, left knee, or psychiatric complaints since service, and for any right knee complaints since January 2012. After securing the necessary release, take all appropriate action to obtain these records, including any updated VA treatment records since October 2018. 3. After the completion of the above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any neck, back, ankle, left hip, or left knee disability. Copies of all pertinent records should be made available to the examiner for review. Based on an examination, review of the record, and any tests or studies deemed necessary the examiner should provide opinions as to the following: (a.) Identify all diagnosed neck disabilities since January 2012, to include cervical strain. (b.) For each currently diagnosed neck disability, is it at least as likely as not related to an in-service injury, event, or disease? (c.) For each diagnosed neck disability is it at least as likely as not (1) proximately due to any service connected disability, or (2) aggravated (defined as any increase in disability) by any service connected disability? The Veteran’s service connected disabilities are a right knee disability and a right hip disability. (d.) Identify all diagnosed back disabilities since January 2012, to include lumbar spondylosis and lumbar strain. (e.) For each currently diagnosed back disability, is it at least as likely as not related to an in-service injury, event, or disease? (f.) For each diagnosed back disability is it at least as likely as not (1) proximately due to any service connected disability, or (2) aggravated (defined as any increase in disability) by any service connected disability? The Veteran’s service connected disabilities are a right knee disability and a right hip disability. (g.) Identify all diagnosed ankle disabilities since January 2012, to include right achilles enthesopathy and left ankle strain. (h.) For each currently diagnosed ankle disability, is it at least as likely as not related to an in-service injury, event, or disease? (i.) For each diagnosed ankle disability is it at least as likely as not (1) proximately due to any service connected disability, or (2) aggravated (defined as any increase in disability) by any service connected disability? The Veteran’s service connected disabilities are a right knee disability and a right hip disability. (j.) For diagnosed left hip arthritis and pain, is it at least as likely as not (1) proximately due to any service connected disability, or (2) aggravated (defined as any increase in disability) by any service connected disability? The Veteran’s service connected disabilities are a right knee disability and a right hip disability. (k.) Identify all diagnosed left knee disabilities since January 2012, to include degenerative joint disease. (l.) For each currently diagnosed left knee disability, is it at least as likely as not related to an in-service injury, event, or disease, to include his May 2010 in-service report of bilateral knee pain? (m.) For each diagnosed left knee disability is it at least as likely as not (1) proximately due to any service connected disability, or (2) aggravated (defined as any increase in disability) by any service connected disability? The Veteran’s service connected disabilities are a right knee disability and a right hip disability. The examiner should consider and discuss as necessary the December 2012 opinion from the Veteran’s private provider that his right knee injury has caused and aggravated his back and left knee conditions. 4. After the completion of (1) and (2), schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disability. The examiner should address the following: (a.) Identify all psychiatric disorders diagnosed since January 2012, to include mood disorder, depressive disorder, and relationship distress with the Veteran’s spouse. (b.) For any psychiatric disorder diagnosed, is it at least as likely as not related to service? (c.) For each psychiatric disorder diagnosed is it at least as likely as not (1) proximately due to any service connected disability, or (2) aggravated (defined as any increase in disability) by any service connected disability? The Veteran’s service connected disabilities are a right knee disability and a right hip disability. The examiner should consider and discuss as necessary the Veteran’s lay reports that his knee limitations affects his relationship with his wife, and VA treatment records that reflect his mood disorder is due to know physiological conditions. 5. After the completion of (1) and (2), schedule the Veteran for an examination of the current severity of his right knee disability. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to his right knee disability alone and discuss the effect of the Veteran’s right knee disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issue. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Eric Struening, Associate Counsel