Citation Nr: 19100331 Decision Date: 01/03/19 Archive Date: 01/02/19 DOCKET NO. 16-10 968 DATE: January 3, 2019 ORDER Entitlement to an effective date earlier than October 28, 2014, for service connection for a left hip strain is denied. Entitlement to an effective date earlier than October 28, 2014, for service connection for a right hip strain is denied. Entitlement to ratings higher than 10 percent for a left hip strain is denied. Entitlement to ratings higher than 10 percent for a right hip strain is denied. REMANDED Entitlement to service connection for low back pain is remanded. FINDINGS OF FACT 1. A December 2008 rating decision denied service connection for a left hip strain and a right hip strain. The Veteran was notified of the decision and of his appellate rights, but did appeal of the denial of service connection for a left hip strain and a right hip strain. 2. VA received the Veteran’s application to reopen the previously denied claims for service connection for a left and right hip strains on October 28, 2014. 3. Throughout the period of appeal, approximate abduction of either hip was not functionally limited to 10 degrees or less; ankylosis of either hip was not shown; flexion of either hip was not functionally limited to 30 degrees or less; and abduction of either hip was not functionally limited to 10 degrees or less. CONCLUSIONS OF LAW 1. The December 2008 rating decision that denied service connection for left and right hip strains are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. 2. The criteria for an effective date earlier than October 28, 2014, for service connection for left and right hip strain are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. 3. The criteria for ratings greater than 10 percent for a left hip strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5252. 4. The criteria for ratings greater than 10 percent for a right hip strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5252. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Effective Date In order for benefits to be paid to any individual under the laws administered by VA, a specific claim in the form prescribed by VA must be filed. 38 C.F.R. § 3.151(a). A claim or application is defined by VA regulation as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). An informal claim is any communication or action, indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). The general rule regarding the assignment of effective date for an award based on an original claim for VA benefits is that the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An exception to the general rule applies if an application for benefits is received within one year from the date of a Veteran’s separation from active service, and an award is made on the basis of that application. In that limited situation, the effective date of the award is made retroactive to the day following the date of separation from service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). Otherwise, the effective date will be the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). The effective date for a grant of service connection based on the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(1)(ii). VA has a duty to maximize a claimant’s benefits. Buie v. Shinseki, 24 Vet. App. 242 (2011); AB v. Brown, 6 Vet. App. 35 (1993); Bradley v. Peake, 22 Vet. App. 280 (2008). Therefore, a case encompasses all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled. Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). A claim for benefits remains pending until it is finally adjudicated. 38 C.F.R. § 3.160(c); Adams v. Shinseki, 568 F.3d 956 (Fed. Cir. 2009). If a claim is left pending without a final adjudication, the claim may be addressed when a subsequent claim is adjudicated by the VA, in which case the effective date for any resulting award of benefits will be the effective date applicable to the earlier claim. Adams v. Shinseki, 568 F.3d 956 (Fed. Cir. 2009); Myers v. Principi, 16 Vet. App. 228 (2002). 1. Entitlement to an effective date earlier than October 28, 2014 for service connection for right and left hip strain On July 15, 2008, the Veteran filed an original claim for service connection for left and right hip strain. A December 2008 rating decision denied service connection for left and right hip strain. The Veteran was notified of the December 2008 decision and of his appellate rights, but did not initiate an appeal of those issues. There is no indication that new and material evidence was received within the one year following that decision that was pertinent to those claims. 38 C.F.R. § 3.156(b). Thus, that decision became final. 38 U.S.C. §§ 7104, 7105. Therefore, in the absence of clear and unmistakable error, an effective date of the date of the July 2008 claim is not warranted. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Notably, no allegation of a clear and unmistakable error has been raised with respect to the December 2008 rating decision. VA received the application to reopen the previously denied claim for service connection for left and right hip strain on October 28, 2014. There is no communication subsequent to the final denial and prior to October 28, 2014, that constitute a claim for benefits for any hip disability. The Board is sympathetic to the Veteran’s situation. However, the legal authority governing effective dates is clear and specific, and the Board is bound by that authority. There is no claim for service connection for a left or right hip disability after the December 2008 final rating decision and before October 28, 2014. Thus, the Board finds that October 28, 2014, the date of receipt of the claim to reopen following a previous final denial of service connection for left and right hip disabilities, is the appropriate effective date for service connection as that is the date of the application to reopen following a final disallowance of the prior claims for service connection. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. As there is no legal basis for assignment of any earlier effective date, and because the preponderance of the evidence is against the claim for any earlier effective date, and because clear and unmistakable error has not been alleged in the December 2008 rating decision, the Board finds that the claims for earlier effective dates must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Ratings Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Rating a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint. 38 C.F.R. §§ 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in 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 portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. 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. When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Limitation of motion of the hip is rated under either Diagnostic Code 5251, 5252, or 5253. Under Diagnostic Code 5251, a 10 percent rating, which is the maximum rating for limitation of extension, is extension limited to 5 degrees. Under Diagnostic Code 5252, a 10 percent rating is warranted flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. Under Diagnostic Code 5253, a 10 percent rating is warranted for the inability to cross the legs or external rotation limited to 15 degrees. A 20 percent rating is warranted for abduction limited to 10 degrees. 38 C.F.R. § 4.71a. Normal extension of the hip is to 0 degrees and normal flexion is to 125 degrees. Normal abduction is to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is non-compensable, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Ratings under Diagnostic Code 5003 cannot be combined with ratings based on limitation of motion of the same joint. 38 C.F.R. § 4.71a. In the absence of limitation of motion, a 20 percent rating is assigned for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent rating is assigned for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003. 2. Entitlement to ratings higher than 10 percent for left hip strain 3. Entitlement to ratings higher than 10 percent for right hip strain Outpatient records from throughout the period of appeal show ongoing treatment for left and right hip pain. On VA examination in November 2014, the examiner diagnosed right and left hip strain. No flare-ups were reported. The Veteran stated that he experienced pain on movement and decreased range of motion. Right hip flexion was to 35 degrees; extension was to 15 degrees; internal rotation was to 30 degrees; external rotation was to 10 degrees; abduction was to 20 degrees; and adduction was to 25 degrees. Adduction was not limited such that the Veteran could not cross his legs. Left hip flexion was to 45 degrees; extension was to 10 degrees; internal rotation was to 40 degrees; external rotation was to 10 degrees; abduction was to 20 degrees; adduction was to 10 degrees. Adduction was not limited such that the Veteran could not cross his legs. There was no change in range of motion for either hip after repetitive testing. There was mild pain to palpation of both hips. Muscle strength testing was normal for both hips. There was no muscle atrophy or ankylosis of either hip. The Veteran regularly used a cane. On VA examination in March 2016, the examiner provided diagnoses of right and left hip strain. The Veteran reported an inability to run more than very short distances. Right hip flexion was to 120 degrees; extension was to 30 degrees; abduction was to 45 degrees; adduction was to 25 degrees; external rotation was to 60 degrees; internal rotation was to 20 degrees. Left hip flexion was to 125 degrees; extension was to 30 degrees; abduction was to 45 degrees; adduction was to 25 degrees; external rotation was to 60 degrees; and internal rotation was to 20 degrees. Pain in each hip was noted on examination. There was no evidence of pain of either hip with weight bearing. There was no change in range of motion for either hip after repetitive testing. Muscle strength testing was normal for both hips. There was no muscle atrophy or ankylosis of either hip. On VA examination in September 2017, the Veteran reported more frequent and worse pain in the hips. The pain was bilateral and worse on the right. No flare-ups of either hip were reported. Right hip flexion was to 90 degrees; extension was to 30 degrees; abduction was to 45 degrees; adduction was to 25 degrees; external rotation was to 60 degrees; and internal rotation was to 40 degrees. Left hip flexion was to 80 degrees; extension was to 30 degrees; abduction was to 45 degrees; adduction was to 25 degrees; external rotation was to 60 degrees; and internal rotation was to 40 degrees. Pain in each hip was noted on examination. There was no evidence of pain of either hip with weight bearing. There was no change in range of motion for either hip after repetitive testing. Muscle strength testing was normal for both hips. There was no muscle atrophy or ankylosis of either hip. The Veteran is currently assigned 10 percent ratings under Diagnostic Codes 5252 and 5253 in each hip. The Board finds that the Veteran’s symptomatology did not more nearly approximate that required for higher ratings than 10 percent for either hip under any potential Diagnostic Code. The evidence for the applicable period contains no report of limitation of extension of either hip to 5 degrees, as required for a compensable rating under Diagnostic Code 5251. The objective medical evidence contains no findings suggesting an inability to cross the legs, a limitation of external rotation to 15 degrees, or limitation of abduction with motion lost beyond 10 degrees as required for a compensable rating under Diagnostic Code 5253. Therefore, no higher or additional separate rating is warranted under Diagnostic Code 5253. The Veteran is currently in receipt of a 10 percent rating for each hip pursuant to Diagnostic Code 5252, for limitation of flexion. The evidence contains no notation suggesting limitation of flexion of either hip to 30 degrees, as required for a higher 20 percent rating under Diagnostic Code 5252, even when considering any additional loss of function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. 38 C.F.R. § 4.71a. The evidence does not shown functionally limiting factors that cause either hip to be the equivalent of limitation of flexion to 30 degrees or less. Ankylosis of the hip is not shown. As the record contains no indication that either hip disability during the applicable rating period more nearly approximated hip ankylosis, flail joint, or impairment of the femur, the Board finds that Diagnostic Codes 5250, 5254, and 5255 are not applicable. 38 C.F.R. § 4.71a. Regarding the possibility of increased ratings in excess of the 10 percent ratings assigned, the Board finds also that the evidence, both lay and medical does not indicate functional loss of either hip due to service-connected hip strain, to include flare-ups due to pain, fatigability, incoordination, and weakness, so as to approximate abduction of either hip functionally limited to 10 degrees or less; ankylosis of either hip; flexion of either hip functionally limited to 30 degrees or less; or abduction of either hip functionally limited to 10 degrees or less. 38 C.F.R. §4.71a, Diagnostic Codes 5250, 5252, 5253, DeLuca v. Brown, 8 Vet. App. 202 (1995). Moreover, the record contains no evidence of a hip flail joint or any impairments of the Veteran’s left or right femur; therefore, the criteria under Diagnostic Codes 5254 and 5255 are inapplicable in this matter. C.F.R. § 4.71a. The Board finds that the preponderance of the evidence is against the assignment of any higher ratings. Therefore, the claim for increased ratings must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for low back pain is remanded. The service medical records show that in February 1991, the Veteran complained of lower back pain. He was treated for a muscle strain. In November 1991, the Veteran was treated for chest and back pain. On VA examination in January 2017, the examiner remarked that the Veteran had a diagnosis of lumbosacral sprain or strain. The Veteran denied experiencing a lumbar strain prior to service. The Veteran stated that he developed lumbar strain in service in 1991. The examiner opined that the Veteran’s current lower back pain was less likely as not related to treatments and complaints of back pain while on active duty. The examiner noted the November 1991 service medical record which included complaints of back pain. However, the examiner stated that there were no back complaints for the 20 years following service. The examiner also did not comment on any possible relationship between the Veteran’s current back complaints and service-connected feet, shin, knee, and hip disabilities. An examination is inadequate where the examiner does not comment on the Veteran’s reports, but instead relies on an absence of medical records to provide a negative opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Therefore, remand is required to schedule the Veteran for a VA examination for an etiology opinion regarding low back that is supported by sufficient rationale. The matter is REMANDED for the following action: 1. With any necessary authorization from the Veteran, obtain all of the relevant outstanding treatment records. All attempts to locate records must be documented in the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any low back disability. The examiner must review the claims file and should note that review in the report. A complete history should be elicited from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should diagnose all low back disabilities found. Concerning any low back disability identified, the VA examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that any low back disability had its onset in service, was aggravated by service, or is otherwise related to any incident of service. The examiner is asked to discuss the significance, if any, of the documented February 1991 and November 1991 in-service treatment for back pain. The examiner should also opine as to whether it is at least as likely as not (50 percent probability or greater) that any low back disability was caused by the Veteran’s other service-connected disabilities, to include service-connected feet, shin, knee, and hip disabilities. The examiner should also opine as to whether it is at least as likely as not (50 percent probability or greater) that any low back disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by any other service-connected disabilities, to include service-connected feet, shin, knee, and hip disabilities. If it is determined that there is another likely etiology for the low back disability, that should be stated. Any opinion expressed should be accompanied by a complete rationale. The examiner must consider the Veteran’s statements and all lay statements regarding onset in-service and statements regarding the continuity of symptomatology. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Layton, Counsel