Citation Nr: 18158806 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 13-04 967 DATE: December 18, 2018 ORDER 1. Entitlement to an initial disability rating in excess of 10 percent for osteopenia/osteoporosis of the right hip is denied. 2. Entitlement to an initial compensable disability rating for impairment of the thigh of the right hip prior to October 8, 2015, and in excess of 10 percent since October 8, 2015, is denied. 3. Entitlement to an initial compensable disability rating for limitation of flexion of the right hip is denied. FINDINGS OF FACT 1. The Veteran’s osteopenia/osteoporosis of the right hip disability is manifested with hip pain and limitation of thigh extension to 5 degrees or less during the appeal. 2. Prior to October 8, 2015, the Veteran’s impairment of the thigh of the right hip was not manifested with limitation of rotation so that the Veteran could not toe-out more than 15 degrees of the affected leg, or limitation of adduction so that the Veteran could not cross his legs, and this disability has not manifested with limitation of abduction so that abduction motion was lost beyond 10 degrees since October 8, 2015. 3. The Veteran’s right hip disability has not manifested with limited range of motion in flexion of the right thigh to 45 degrees or less during the appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 10 percent for osteopenia/osteoporosis of the right hip have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5013-5251 (2017). 2. The criteria for entitlement to an initial compensable disability rating for impairment of the thigh of the right hip prior to October 8, 2015, and in excess of 10 percent since October 8, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5253 (2017). 3. The criteria for entitlement to an initial compensable disability rating for limitation of flexion of the right hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5013-5252 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1962 to August 1966 and from October 1966 to November 1968. The Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference during a December 2014 Board hearing. A transcript of the hearing is included in the claims file. This case was previously before the Board in August 2015, when the Board remanded the matters on appeal to associate with the claims file outstanding VA treatment records since July 2009, schedule the Veteran for a VA examination, and issue a supplemental statement of the case if any benefit was denied by the Agency of Original Jurisdiction (AOJ). There was substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that although the AOJ certified to the Board only the issue of an increased rating for osteopenia/osteoporosis of the right hip, the procedural history of the case shows that the Veteran’s right hip disability is rated on limitation of extension, limitation of flexion, and impairment of the thigh. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Thus, the Board has re-characterized the issues as they are listed on the title page of this decision. The Veteran contends that his service-connected right hip disability should be rated higher than the currently-assigned disability ratings. Because the evidence pertaining to the severity of the limitation of extension, flexion, and overall impairment of the right hip is located in the same or similar documents, the Board shall analyze the matters on appeal together below. VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” The record shows that the appeal period for the right hip disability stems from the initial grant of service connection, i.e., May 11, 2010. 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. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. The provisions of 38 C.F.R. § 4.40 allow for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Furthermore, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case, the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran’s right hip osteopenia/osteoporosis is rated under 38 C.F.R. § 4.71a, DC 5013-5251, which rates limitation of extension of the thigh. DC 5251 assigns a 10 percent rating for extension limited to 5 degrees. The Veteran’s impairment of the thigh of the right hip is rated as noncompensable (zero percent) prior to October 8, 2015, and as 10 percent disabling since October 8, 2015, under 38 C.F.R. § 4.71a, DC 5253. A 10 percent rating is assigned for limitation of rotation of the thigh so that a veteran cannot toe-out more than 15 degrees of the affected leg. A 10 percent rating is also assigned for limitation of adduction of the thigh so that a veteran cannot cross his or her legs. A maximum schedular rating of 20 percent is assigned with limitation of abduction of the thigh where motion is lost beyond 10 degrees. The Veteran’s limitation of right hip flexion is also rated as noncompensable rated under 38 C.F.R. § 4.71a, DC 5013-5252. DC 5252 assigns a 10 percent rating for flexion limited to 45 degrees; a 20 percent rating for flexion limited to 30 degrees; a 30 percent rating for flexion limited to 20 degrees; and, a 40 percent rating for flexion limited to 10 degrees. Normal range of motion for the hip is flexion from zero to 125 degrees and abduction from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II (2017). A May 2010 letter from a VA medical professional indicated that the Veteran was taking alendronate and calcium with vitamin D to treat his osteopenia disability. The Veteran made a similar statement in his February 2013 substantive appeal to the Board (VA Form 9). A September 2010 VA examination report showed that the Veteran had osteopenia, which was confirmed by a July 2009 bone density study. The examiner noted that the Veteran was taking lamotrigine, alendronate, and calcium medication. The Veteran complained of pain in his posterior hip and lower buttock. He told the examiner that his hip pain was usually a 3 out of a possible 10, but that it flared-up to a 9 out of a possible 10. His pain was at an 8 out of a possible 10 during the examination. He told the examiner that his hip pain flared up one to two times per day, and that it lasted for five minutes. Pain was aggravated by sitting for long periods of time or any type of ambulatory activity. He told the examiner that he did not take any pain medication because it interfered with other medications he was taking. The Veteran stated that he noticed some instability in his right hip in the previous few months. He also reported that his activities of daily living were adversely affected by the right hip disability, including taking breaks while shopping or walking. He stated that he did not use a cane or crutches, but he had to use a grip on his shower to pull himself across the threshold. The Veteran also did not have any inflammation and he was not treated in an emergency setting for this disability in the previous year. A physical examination showed no abnormalities to the hip architecture or pelvis. His right hip was nontender to palpation in the inguinal region and the anterior iliac crest, but the posterior greater trochanteric area was mildly tender to palpation. The examiner noted that the Veteran had pain in the right hip joint posteriorly when he crossed his legs. Muscle strength testing showed normal results in flexion, extension, abduction, adduction, and internal and external rotation of the right hip. The examiner noted that the Veteran walked with a right antalgic gait. Initial range of motion testing showed flexion of the right hip was to 90 degrees, extension was to 3 degrees, abduction was to 20 degrees, adduction was to 22 degrees, internal rotation was to 32 degrees, and external rotation was to 21 degrees. Same results were noted after three repetitions, except that flexion of the right hip was to 60 degrees with the loss of 30 degrees of range of motion due to pain and fatigue. The examiner noted that x-ray evidence showed mild osteopenia in the right hip. An April 2011 VA progress note showed that the Veteran complained of chronic right hip pain. He stated that his pain was an 8 out of a possible 10. He stated that the pain was not constant, but that it waxed and waned. He stated that this disability interfered with his activities of daily living. He reported that walking on hard floors made the pain worse, and the hip became bothersome if he rode or sat for too long. A physical evaluation showed that the Veteran had full range of motion in both hips, and that his right hip had tenderness with log rolling. An April 2013 VA primary care outpatient note showed that the Veteran complained that his right hip was very bothersome when he walked. He stated that resting relieved the pain. The medical professional noted that the Veteran had a history of osteoarthritis and polymyalgia rheumatica, and that he was taking a small dose of prednisone for his symptoms. In a May 2014 statement, the Veteran’s representative contended that the primary symptoms of the Veteran’s right hip disability were constant pain and limitation of motion. The representative asserted that the Veteran faced numerous limitations on a daily basis and restrictions due to this disability, and that this disability impacted his life and work. A May 2014 VA occupational therapy note showed that the Veteran had trouble putting on his socks and shoes due to his degenerative joint disease (DJD) of the right hip. During the December 2014 Board hearing, the Veteran testified that he was taking calcium with vitamin D and Fosamax medication, and that he was required to take breaks depending on how strenuous an activity he was performing. He also reported that his hip slowed down his everyday activities, which caused him to stop his activities to rest every 20 to 25 minutes. He also stated that his hip pain prevented him from participating in his hobbies, such as fishing. The Veteran’s representative further noted that the Veteran had functional loss and weakness of the musculoskeletal system. The Veteran testified that his right hip had worsened since his last VA examination in September 2010. Additionally, he reported that he had right hip range of motion limitations, such as difficulty putting on his shoes, getting up from a sitting position, and climbing stairs. An October 2015 VA examination report showed that the Veteran was not receiving any treatment for his hips, apart from taking alendronate for his osteopenia symptoms. He reported episodes of flare-ups and functional loss of the right hip disability, which manifested as decreased range of motion due to increased pain. Initial range of motion testing of the right hip and thigh showed flexion to 95 degrees, extension to 20 degrees, abduction to 40 degrees, adduction to 15 degrees, internal rotation to 35 degrees, and external rotation to 40 degrees. Repetitive-use testing showed identical results. The examiner noted that pain was noted in flexion, extension, abduction, adduction, and internal and external rotation, and that the pain caused functional loss. The examination showed evidence of pain with weightbearing, but no crepitus. The Veteran had moderate, diffuse tenderness to palpation over the upper buttock and lateral hip. The Veteran reported that pain, fatigue, and weakness affected his right hip during flare-ups, which manifested with reduced range of motion. Muscle strength testing showed normal results, and there was no evidence of ankylosis. The Veteran did not have a malunion or nonunion of the femur, flair hip joint, or leg length discrepancy. He did not use an assistive device to ambulate. The examiner noted that a May 2015 x-ray showed that there was no significant DJD within either hip, and that the cause of the Veteran’s hip pain could not be identified. The examiner noted that the Veteran’s right hip pain affected his ability to work around the house. The Veteran had pain with using ladders, getting in and out of the car or shower, and with prolonged walking. Overall, the examiner determined that the Veteran’s right hip disability was moderate in severity. Given this evidence, the Board finds that the Veteran’s osteopenia/osteoporosis of the right hip disability manifested with hip pain and limitation of thigh extension to 5 degrees or less during the appeal. The Board notes that the Veteran is currently rated at the maximum schedular rating of 10 percent disabling for this disability. Overall, the range of motion noted in the September 2010 VA examination showed that the right hip extension was limited to 3 degrees, and the October 2015 VA examination report showed that extension was limited to 20 degrees. This evidence indicates that a disability rating in excess of 10 percent is not warranted during the appeal period based on limitation of extension of the right thigh. Furthermore, the evidence of record shows that prior to October 8, 2015, the Veteran’s impairment of the thigh of the right hip was not manifested with limitation of rotation so that the Veteran could not toe-out more than 15 degrees of the affected leg, or limitation of adduction so that he could not cross his legs. However, after the Veteran indicated that his symptoms had worsened, and based on the October 2015 VA examination report, the disability rating was increased to 10 percent disabling for impairment of the right thigh because the evidence showed that the Veteran had pain and limited motion in adduction of the thigh. Nonetheless, the record, including the October 2015 VA examination report, does not show that this disability has manifested with limitation of abduction so that abduction motion was lost beyond 10 degrees since October 8, 2015. Thus, a compensable disability rating prior to October 8, 2015, and a disability rating in excess of 10 percent since October 8, 2015, is not warranted for impairment of the thigh of the right hip. Moreover, the Veteran’s right hip disability has not manifested with limited range of motion in flexion of the right thigh to 45 degrees or less during the appeal. Specifically, the September 2010 VA examination report showed that flexion was limited to 60 degrees after three repetitions, and the October 2015 VA examination report showed that right hip flexion was limited to 95 degrees. Additionally, an April 2011 VA progress note showed that the Veteran had full range of motion in both hips. Thus, a compensable disability rating for limitation of flexion of the right hip is not warranted during the appeal. The Board has considered whether a higher rating should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria but determines that a higher rating is not warranted for the Veteran’s disability picture. The range of motion testing conducted during the medical evaluation considered the thresholds at which pain limited motion. The Veteran reported having flare-ups of his symptoms during the September 2010 and October 2015 VA examinations, as well as throughout the appeal period in various VA treatment records, and these medical examinations and evaluations showed the presence of any additional functional impairment due to such symptoms as pain, pain on repeated use, fatigue, weakness, lack of endurance, and incoordination. Furthermore, the Board notes that the AOJ already considered these criteria when it assigned an increased rating of 10 percent for the impairment of the thigh, effective October 8, 2015. Thus, even though there is evidence of reduced flexion, extension, abduction, adduction, and internal and external rotation, and even after considering the effects of pain and functional loss, the evidence does not show that a higher rating under these provisions is approximated in the Veteran’s disability picture. Accordingly, as the preponderance of the evidence is against entitlements to increased ratings for the Veteran’s osteopenia/osteoporosis of the right hip, impairment of the thigh of the right hip, and limitation of flexion of the right hip, the benefit-of-the-doubt rule does not apply, and the Veteran’s claims must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.71a, DCs 5013-5251, 5013-5252, 5253; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hodzic, Counsel