Citation Nr: 18158495 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-24 991A DATE: December 17, 2018 ORDER Entitlement to a rating in excess of 10 percent for service connected right hip disability is denied. Entitlement to a rating in excess of 10 percent for service connected left hip disability is denied. REMANDED Entitlement to service connection for a lumbar disorder is remanded. FINDING OF FACT 1. The service connected right hip disability has not manifested to a limited thigh flexion of 30 degrees or thigh abduction loss beyond 10 degrees. 2. The service connected left hip disability has not manifested to a limited thigh flexion of 30 degrees or a thigh abduction loss beyond 10 degrees. CONCLUSION OF LAW 1. The criteria for entitlement to an increased rating in excess of 10 percent for service connected right hip disability has not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251, 5252, 5253. 2. The criteria for entitlement to an increased rating in excess of 10 percent for service connected left hip disability has not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251, 5252, 5253. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from May 2010 to August 2010. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). Increased Rating Disability evaluations are determined by the application of the facts presented to the VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In evaluating the severity of a disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to an increased rating in excess of 10 percent for service connected right hip disability is denied. Normal ranges of motion of the hip are thigh flexion from zero degrees to 125 degrees, and thigh abduction from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. The service-connected right hip disability is evaluated under the following diagnostic codes: Under Diagnostic Code 5251, a 10 percent rating is the maximum evaluation for limited thigh extension of 5 degrees. Under Diagnostic Code 5252, a 10 percent disability evaluation is assigned for limited thigh flexion of 45 degrees. For a 20 percent rating, there must be limited thigh flexion of 30 degrees. And limited thigh flexion of 20 and 10 degrees warrants 30 and 40 percent ratings, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Under Diagnostic Code 5253, a 10 percent rating is assigned for limited thigh rotation, with an inability to toe-out in excess of 15 degrees or where there is limited thigh adduction such that one cannot cross legs. A 20 percent rating is warranted for limited thigh flexion of 30 degrees or if thigh abduction is lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. With respect to the service-connected right hip disability, the RO granted a 10 percent rating for a right hip strain, under § 4.59 due to painful hip motion, and under Code 5251 for limited thigh extension beyond 5 degrees. See July 2013 Rating Decision. As an initial matter, the maximum rating possible under Code 5251 for a right hip disability is 10 percent for a limited thigh extension of 5 degrees, which was granted. See July 2013 Rating Decision. In a December 2014 VA Exam, the Veteran displayed an initial range of motion (ROM), with painful thigh flexion of 110 degrees, with no change after repetitive-use testing. In the December 2015 VA Exam, the Veteran displayed a thigh flexion of 100 degrees, with no functional loss due to pain. With repeated use over time and during flare-ups, the Veteran displayed a thigh flexion of 90 degrees, with functional loss due to pain. Considering the evidence of record, the Veteran had no more than a 90-degree limitation of flexion, which more nearly approximates the criteria for a 10 percent rating rather than a 20 percent rating under Diagnostic Code 5252. In the December 2014 VA Exam, the Veteran displayed a thigh abduction of 35 and 20 degrees, with no change after repetitive-use testing. However, the Veteran had a ROM due to pain, with an additional 5-degree loss in thigh abduction. In the December 2015 VA Exam, the Veteran displayed a thigh abduction of 40 and 20 degrees, with functional loss due to pain, but no limitation in leg crossing. With repeated use over time and during flare-ups, the Veteran displayed a thigh abduction and adduction of 30 and 10 degrees, respectively, with functional loss due to pain, but no limitation in leg crossing. Given these findings, the disability picture more nearly approximates the criteria for a 10 percent rating rather than a 20 percent rating under Diagnostic Code 5252. The Board has also considered whether there was any additional functional loss that was not contemplated in the current rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 206. In this regard, the Veteran reported functional losses, such as difficulty walking, sitting, standing, and laying down, including during flare-ups, which the Board finds as competent and credible; thus, probative of symptomology. See March 2016 VA Form 9. During the December 2015 VA exam, the Veteran was specifically tested for functional loss due to pain, described as fatigue, weakness, lack of endurance, and incoordination. However, the Board observes that “pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss.” Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Moreover, the examiner determined that the Veteran could perform occupational tasks, despite difficulties with prolonged ambulation, standing, and bending repetitively. Therefore, the Board finds that the current rating criteria adequately contemplates additional functional loss. Consequently, a separate or higher rating under § 4.40 or 4.45 itself is also not appropriate here. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on § 4.71a [or 4.73] criteria.”). As previously discussed, the Veteran’s functional limitations were considered in the rating schedule; thus, a separate or higher rating would be impermissible. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board notes that the preponderance of the evidence, to include the Veteran’s range of motion testing and other physical findings, is consistent with a 10 percent rating rather than a 20 percent rating; thus, the benefit of the doubt doctrine, does not apply. See 38 C.F.R. §§ 4.3, 4.71(a), Diagnostic Code 5251-5253, Gilbert v. Derwinski, 1 Vet App. 49 (1990). For these reasons, entitlement to an increased rating in excess of 10 percent for service-connected right hip disability is denied. 2. Entitlement to an increased rating in excess of 10 percent for service connected left hip disability is denied. With respect to the service-connected left hip disability, the range of motion criteria and diagnostic codes discussed above are applicable. Procedurally, the RO granted a 10 percent rating for a left hip strain, under § 4.59 for painful motion of the hip and under Code 5253 limited abduction of the thigh, including an inability to cross the legs. See July 2013 Rating Decision. In a December 2014 VA Exam, the Veteran displayed a thigh extension of 20 degrees. With repetitive use, there was no change in thigh extension. However, over a period of time there was an additional 5-degree loss, due to pain in all planes. In the December 2015 VA Exam, the Veteran had a thigh extension of 20 degrees. With repetitive use and flare-ups, the Veteran had a thigh extension of 10 degrees. Considering the evidence of record, the Veteran had no more than a limited thigh extension of 10 degrees, which more nearly approximates the criteria for a 10 percent rating rather than a 20 percent rating under Diagnostic Code 5251. In a December 2014 VA Exam, the Veteran displayed a thigh flexion of 105 degrees. With repetitive use, there was no change in thigh flexion. However, over a period of time there was an additional 5-degree loss, due to pain in all planes. In the December 2015 VA Exam, the Veteran displayed a thigh flexion of 100 degrees, with no functional loss due to pain. With repeated use over time and during flare-ups, the Veteran displayed a thigh flexion of 90 degrees, including functional loss due to pain. Considering the evidence of record, the Veteran had no more than a limited thigh flexion of 90 degrees, which more nearly approximates the criteria for a 10 percent rating rather than a 20 percent rating under Diagnostic Code 5252. In a December 2014 VA Exam, the Veteran displayed a thigh abduction of 35 and 20 degrees, with no change in thigh abduction after repetitive-use testing. However, over a period of time there was an additional 5-degree loss in thigh flexion. In the December 2015 VA Exam, the Veteran displayed a thigh abduction of 20 degrees, with functional loss due to pain, but no limitation in leg crossing. With repeated use over time and during flare-ups, the Veteran displayed a thigh abduction of 30 and 10 degrees, with functional loss due to pain, but no limitation in leg crossing. Considering the evidence of record, the Veteran had no more than a thigh abduction limitation of 10 degrees, which more nearly approximates the criteria for a 10 percent rating rather than a 20 percent rating under Diagnostic Code 5252. As discussed above, the Board finds that the current rating criteria adequately contemplates additional functional loss. See 38 C.F.R. §§ 4.40. 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). Nor is an extraschedular rating. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board notes that the preponderance of the evidence, to include the Veteran’s range of motion testing and other physical findings, is consistent with a 10 percent rating rather than a 20 percent rating; thus, the benefit of the doubt doctrine, does not apply. See 38 C.F.R. §§ 4.3, 4.71(a), Diagnostic Code 5251-5253, Gilbert v. Derwinski, 1 Vet App. 49 (1990). For these reasons, entitlement to an increased rating in excess of 10 percent for the service-connected left hip disability is denied. The Veteran did not raise any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369–70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND The Board finds that a remand is necessary to afford the Veteran a VA opinion to ascertain the current nature and severity of her lumbar spine disorder, including arthritis. In this regard, the Board notes that the Veteran’s most recent VA examination was performed in December 2015. However, the Board finds the VA opinion inadequate. See, e.g., Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As the Veteran contends and a private medical provider opined that the chronic lower back pain is secondary to the service-connected hip disability due to overcompensation, the examiner must fully address whether there is direct or secondary service connection. See June 2016 VA Form 9; February 2016 AVORS Physician Medical Statement. Therefore, an opinion of whether the bilateral hip disability was meets the criteria of direct and secondary service connection is necessary. 38 C.F.R. §§ 3.305, 3.310. The Board also notes that the evidence of record contains a private medical opinion that was associated with the record after the December 2015 VA Exam. The private medical provider opined that the Veteran’s “spinal complaints including her lumbosacral pain complaints are at least as likely as not the result of overcompensation due to her original hip injuries.” See February 2016 AVORS Physician Medical Statement. However, this record, standing alone is not deemed sufficient to grant the claim. As explained by the December 2015 examiner, gait changes have not been shown in the treatment records and her gait was normal on examination. Therefore, additional development is needed for consideration of the private opinion and to clarify whether there are is indeed gait alteration in this case. The matter is REMANDED for the following action: Provide an VA examination determine the nature and etiology of the lumbar spine disorder, including degenerative arthritis. Ensure that all evidence of record including but not limited to the STRs, and the Veteran’s lay statements are addressed when reviewing the claims file. It should be clearly stated whether there is evidence of gait alteration, either at present or at any other time during the appeal period (since October 2015). In providing an opinion, please address the following: (a) Please state whether it is at least as likely as not (50 percent or greater probability) that any diagnosed lumbar disorder was incurred in-service. (Continued on the next page)   (c) The examiner should also opine as to whether it is at least as likely as not that any service-connected disability to include the bilateral hip disability caused or worsened the lumbar disorder beyond its natural progression. If aggravation is found, the examiner should identify baseline level of disability prior to such aggravation. A clear rationale should accompany all opinions. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.Seehusen, Associate Counsel