Citation Nr: 20002434 Decision Date: 01/10/20 Archive Date: 01/10/20 DOCKET NO. 13-28 971A DATE: January 10, 2020 ORDER Entitlement to an initial rating in excess of 10 percent for service connected right hip strain claimed as right hip condition is denied. Entitlement a rating in excess of 10 percent for service-connected right ankle strain is denied. FINDINGS OF FACT 1. Throughout the course of the appeal, the Veteran's right hip condition is manifested by pain and limitation of motion; flexion less than 45 degrees, extension at or less than 5 degrees, limitation of thigh abduction to 10 degrees or less, and/or ankylosis has not been shown. 2. The Veteran's right ankle disability is characterized by moderate limitation of motion; neither marked limitation of motion nor ankylosis were shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for service connected right hip strain claimed as right hip condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5251. 2. The criteria for entitlement to a rating in excess of 10 percent for service-connected right ankle strain have not been met. 38 U.S.C. §§ 1155, 5103(A), 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1976 to May 1979 and from May 1979 to June 1982. The Veteran’s second period of service was under Other Than Dishonorable Conditions. The claim was remanded by the Board in January 2018 for additional development and has been returned now for further appellate action. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial rating in excess of 10 percent for service connected right hip strain claimed as right hip condition The Veteran contends that he is entitled to a rating in excess of 10 percent for his service connected right hip condition. The Regional Office (RO) assigned a 10 percent rating for the Veteran's right hip strain pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5251. Disabilities of the hip and thigh are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5250 through 5255. Diagnostic Code 5251 provides a maximum rating of 10 percent for limitation of extension of the thigh to 5 degrees. In order to warrant a rating in excess of 10 percent for a hip disorder, the evidence must show: • Limitation of thigh flexion to 30 degrees or less (20 percent under DC 5252); or • Impairment of the thigh abduction to 10 degrees or less (20 percent under DC 5253). 38 C.F.R. § 4.71a. After a review of the evidence, the Board determines that a rating in excess of 10 percent is not warranted. Specifically, the Veteran underwent VA examination in September 2012 at which time he reported stiffness and numbness in his right hip. On physical examination of the right hip, the Veteran demonstrated flexion from zero to 125 degrees, extension to 0 degrees, abduction not lost beyond 10 degrees, and his rotation was not limited such that the Veteran cannot toe out more than 15 degrees. The Veteran underwent another VA examination in August 2016. Upon examination the Veteran demonstrated flexion from zero to 85 degrees and extension to 15 degrees. The Veteran demonstrated pain on examination that results in functional loss in flexion, extension, and internal rotation. Further, pain was noted with weight bearing and his ROM after repetitive testing revealed 80 degrees flexion and 15 degrees extension. However, the Veteran exhibited normal muscle strength testing, no ankylosis and no assistive devices are needed. The Veteran underwent additional VA examinations in July 2017 and March 2018. During his July 2017 examination, the Veteran reported that his condition has worsened over time. The Veteran stated that in cold weather or after doing stairs he has terrible right hip pain and has to sleep on main level to avoid stairs. Further, the Veteran reported that his right side gets stiff and seems to lock and becomes tingly and numb. Upon examination, the Veteran exhibited 90 degrees of flexion and 20 degrees extension. The examiner noted that the Veteran can cross legs, but has a very limited ROM in all planes that would affect walking, turning, and moving. The Veteran exhibited objected evidence of localized tenderness or pain on palpation and pain with weight-bearing pain. Further, the examiner noted that the Veteran cannot perform repeat motions as it results in too much pain on abduction. In addition, the examiner noted that the Veteran has leg length discrepancy of 89cm right leg and 91 cm left leg. However, the examiner stated that it is unclear where discrepancy comes from, it may be postural from pain, but likely from hip condition. During the Veteran’s March 2018 examination, the Veteran reported constant pain in his right hip and pain when he does stairs and when he gets up after sitting for a while. Upon examination, the Veteran exhibited flexion to 70 degrees, extension to 10 degrees, abduction to 30 degrees, adduction to 20 degrees, external rotation to 25 degrees, and internal rotation to 15 degrees. However, the examiner noted that the Veteran’s 2017 right hip x-ray was unremarkable. The Board notes that there is no evidence of record of hip ankylosis to support the application of Diagnostic Code 5250, no evidence of flail joint to support the application of Diagnostic Code 5254, and no evidence of malunion or fracture of the femur to support the application of Diagnostic Code 5255. With respect to thigh motion, as noted above, the Veteran is already receiving the maximum ratings for limitation of extension under Diagnostic Code 5251. In summary, the Board finds that the evidence does not show that the Veteran’s right hip disability warrants higher ratings. The VA examinations show that, at worst, he has right hip flexion to 70 degrees, abduction to 30 degrees, adduction to 20 degrees, external rotation to 25 degrees, and internal rotation to 15 degrees. The evidence does not show limitation of abduction of motion lost beyond 10 degrees, flexion limited to 45 degrees, extension limited to 5 degrees, or ankylosis. Accordingly, the Veteran is not entitled to a higher rating pursuant to the schedular rating criteria. The preponderance of the evidence is against ratings in excess of 10 percent for the Veteran's left and right hip strain on the basis of limitation of extension pursuant to Diagnostic Code 5251. As such, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating in excess of 10 percent for a right ankle strain The Veteran is seeking an increased rating for his service-connected right ankle disability. The Veteran contends that he is entitled to an increased rating for his service-connected right ankle disability. The Veteran states that his right ankle hurts while trying to step off with right foot and reports that his foot falls to sleep at times and he has to constantly take pain medications. Additionally, the Veteran states that he experiences instability and weakness to his right ankle. The Veteran is currently rated under 38 C.F.R. § 4.71a Diagnostic Code (DC) 5271 (addressing limitation of motion of the ankle). Initially, the Board notes that the Veteran's right ankle disability has previously been determined to be most analogous to, and rated under Diagnostic Code (DC) 5271, for limitation of motion of the ankle. The Veteran has not asserted, and VA examinations do not reflect, ankylosis of the ankle (DC 5270), ankylosis of the subastragalar or tarsal joint (DC 5272), malunion of the os calcis or astragalus (DC 5273), or astragalectomy (DC 5274). After careful consideration, the Board concurs with the use of DC 5271. Utilization of DC 5271 does not restrict the Board to strictly considering range of motion measurements. Rather, DC 5271 permits the Board to evaluate all ankle symptoms that could act to limit the motion of his ankle. Therefore, the Board finds that DC 5271 is for application. In order to warrant an increased rating for the right ankle based on limitation of motion, the evidence must show symptoms that are moderate (10 percent) or marked (20 percent). The words "moderate" or “marked," as used in the various Diagnostic Codes, are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. In order to warrant a rating in excess of 20 percent under a different diagnostic code, the evidence must show ankylosis of the ankle in plantar flexion between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees (30 percent under DC 5270). See C.F.R. §, 4.71a, Diagnostic Code (DC) 5271. After a review of the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted. Specifically, in a May 2019 VA examination, the Veteran reported that he constantly has to take pain medications and experiences instability and weakness to his right ankle. He reported flare-ups of the right ankle that occur 3-4 days out of the week that range from mild to severe and last until he takes pain medication, or he elevates his leg. He also reported that the right ankle flare-ups are precipitated by stepping-off with foot, walking on it, when he gets tired and are alleviated by rest, ice, elevation, and ace bandage compression. Upon examination, the Veteran exhibited dorsiflexion to 20 degrees and plantar flexion to 30 degrees. The examiner noted pain with range of motion and stated severity is moderate pain on weight bearing with crepitus. The examiner further noted that the Veteran experiences swelling and interference with standing. However, the Veteran exhibited full muscle strength, no atrophy, no ankylosis, no joint instability, and no additional functional limitation due to repetitive testing. Additionally, X-ray results revealed no degenerative or traumatic arthritis. In regard to functional limitations, the VA examiner noted that the Veteran uses a brace on a regular basis and has difficulty working in tight spaces, crouching, squatting, or kneeling due to ankle pain. Therefore, based on this evidence, the Board does not consider the limitation in the Veteran's right ankle to be "marked" in nature. Indeed, the range of motion has been at most limited to a moderate degree. Moreover, given the measurable range of motion, ankylosis is not shown. Additionally, there is no indication of malunion of any part of the ankle joints. In considering the appropriate disability ratings, the Board has also considered the Veteran's statements that his disability is worse than the rating he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms of his right ankle strain, because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated.   Therefore, a rating in excess of 10 percent is not warranted for the entire period on appeal. The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303 B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vample, Associate Counsel .