Citation Nr: 18160303 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 10-34 398 DATE: December 26, 2018 ORDER 1. Entitlement to an initial 20 percent rating, but no higher, for left hip degenerative joint disease, from June 6, 2003 to November 25, 2010 is granted. 2. Entitlement to a 30 percent rating, but no higher, for left hip degenerative joint disease, from November 26, 2010 to March 15, 2011 is granted. REMANDED ISSUE Entitlement to a rating greater than 70 percent for degenerative joint disease of the left hip, status post left total hip replacement, from May 1, 2012 to the present. FINDINGS OF FACT 1. From June 6, 2003 to November 25, 2010, the severity of the Veteran’s left hip disability manifested in symptoms most closely approximating limitation of flexion to 30 degrees. 2. From November 26, 2010 to March 15, 2011, the severity of the Veteran’s left hip disability manifested in symptoms most closely approximating limitation of flexion to 20 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to 20 percent initial rating, but no higher, for the Veteran’s left hip disability for the period of June 6, 2003 to November 25, 2010, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5252 (2018). 2. The criteria for entitlement to a 30 percent rating, but no higher, for left hip disability for the period of November 26, 2010 to March 15, 2011 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5252 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1981 to July 1985. In a September 2010 rating decision, implementing a Board decision granting entitlement to service connection for a left hip disability, the agency of original jurisdiction (AOJ) awarded an initial 10 percent rating for degenerative joint disease of the left hip, effective June 6, 2003. In December 2010 the Veteran requested that he be awarded an increased initial rating for his service connected left hip disability. In a July 2014 rating decision, the Board increased the rating to 20 percent effective August 5, 2005, and returned the rating to 10 percent from May 27, 2010. During the appeal, the Veteran had a total hip replacement in March 2011. In the February 2012 rating decision, the AOJ increased the Veteran’s rating to a temporary 100 percent rating, followed by a 30 percent rating after May 1, 2012. The Board then remanded the case for further development in June 2015. A subsequent rating decision in February 2016 increased the 30 percent rating to 70 percent. The Board remanded the case once again for full adjudication by the AOJ in the first instance. Entitlement to increased initial ratings for the left hip disability prior to March 16, 2011. Prior to the Veteran’s total hip replacement in March 2011, the Veteran’s left hip disability was rated under DC 5252 based on limitation of flexion. Under DC 5252, a 10 percent evaluation is assigned where flexion of the thigh is limited to 45 degrees; where flexion is limited to 30 degrees, a 20 percent evaluation is assigned; where flexion is limited to 20 degrees, a 30 percent evaluation is assigned; and where flexion is limited to 10 degrees, a 40 percent evaluation is assigned. 38 C.F.R. § 4.71a, DC 5252. For the following reasons, the Board finds that under Diagnostic Code 5252, a 20 percent initial rating is warranted from June 6, 2003 to November 25, 2010, and a 30 percent rating is warranted from November 26, 2010 to March 15, 2011. Although the record contains documented treatment for left hip pain prior to his March 2011 left hip replacement, there are very few range of motion assessments. Indeed, during the appeal period, an August 2005 VA treatment report documented limited motion to 30 degrees of flexion, with 80 degrees of extension and 30 degrees of abduction. Range of motion was assessed again in May 2010, at which time flexion was to 40 degrees, extension was to -5 degrees, and abduction to 20 degrees. [The Board notes that the AOJ awarded a separate 10 percent rating under Diagnostic Code 5251 based on limitation of extension as of the date of this examination]. In a November 26, 2010 private treatment report from Dr. R.B., the Veteran was noted to have limitation of left hip flexion to 20 degrees. The Veteran has not specifically asserted to VA or to his treating physicians that he experienced flare-ups during the time period prior to his March 2011 hip replacement; rather he reported to VA physicians in September 2001 that his pain frequency was “constant.” At an August 5, 2005 VA assessment, the Veteran reported that his pain symptoms that have “steadily progressed” since service. The Veteran did report that at times, his hip gave out on him. A July 25, 2006 VA Nursing Inpatient report indicated that the Veteran was supposed to have hip surgery in 2005, but due to Hurricane Katrina, he was unable to have it done. He was able to walk, but with a profound limp. At a May 2010 VA examination, the Veteran reported that his hip pain has become “progressively worse” since onset, with pain, stiffness, weakness and incoordination. The Veteran specifically denied flare-ups. On his November 26, 2010 private assessment by Dr. R.B., the Veteran again stated that his pain is “constant.” When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, although range of motion testing demonstrated that from June 6, 2003 to November 25, 2010, limitation of left hip flexion varied in degree of severity between limitation to 30 degrees and limitation to 40 degrees with constant pain, the Board will resolve all doubt in the Veteran’s favor and find, based on the Veteran’s complaints of constant pain, and any additional limitations of weakness, stiffness and incoordination, that an increased initial rating is warranted from 10 to 20 percent. Indeed, the Veteran’s symptoms most closely approximated those contemplated by the 20 percent rating throughout that time period (limitation of flexion to 30 degrees). As of November 26, 2010, in the months leading up to his total replacement, a worsening in limitation of flexion is evident. On that date, limitation of flexion was shown to be to 20 degrees, warranting the assigment of a 30 percent rating from that date to the date of his March 2011 surgery. Higher ratings are not available during this time period under Diagnostic Code 5252, as the evidence does not show, nor does the Veteran assert that functional impairment due to the left hip manifested to a degree more closely approximating limitation of flexion to 20 degrees prior to November 26, 2010, or to 10 degrees between November 26, 2010 and the date of his surgery on March 16, 2011. Limitation of extension to a compensable degree has also not been shown by the record, or alleged to exist by the Veteran prior to May 27, 2010. The Veteran has not exhibited left hip ankylosis, flail joint or impairment of the femur. Thigh impairment codes do not avail the Veteran has his current ratings are even with or exceed the maximum ratings designated by Diagnostic Code 5253. In sum, an initial 20 percent rating, but no higher, is warranted from June 6, 2003 to November 25, 2010. A 30 percent rating is warranted from November 26, 2010 to March 15, 2011. REASONS FOR REMAND Entitlement to a rating greater than 70 percent for degenerative joint disease of the left hip, status post left total hip replacement, from May 1, 2012 to the present. From March 16, 2011 to April 30, 2012, a total 100 percent rating is already in place. The question of whether a rating higher than the currently assigned 70 percent from May 1, 2012 to the present day remains at issue. Review of recent VA treatment records indicates that the Veteran underwent a second left hip surgery in June 2018. See a June 26, 2018 Orthopedic Surgery Inpatient Note. The nature of the surgery is unclear, but the June 26, 2018 Inpatient Note indicated that the Veteran was to have aspiration and revision of the left total hip arthoplasty, with follow up in six months. On remand, all records of care from June 2018 to the present should be associated with the record. The Veteran’s hip should also be reassessed, as his disability picture may have changed. The matter is REMANDED for the following action: 1. Send the Veteran a letter requesting that he submit, or authorize VA to obtain on his behalf, any records of private care pertaining to his left hip. 2. Obtain all outstanding VA treatment records, to include all records pertaining to the Veteran’s recent left hip surgery from June 2018 to the present. 3. When the Veteran is able, schedule the Veteran for a VA examination of the left hip to assess its current severity. 4. Readjudicate the issue of entitlement to a rating greater than 70 percent for his left hip degenerative joint disease, status post total hip replacement from March 16, 2011 to the present day, to include whether additional surgery warrants the assignment of a temporary total rating. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David M. Sebstead, Associate Counsel