Citation Nr: 20005209 Decision Date: 01/23/20 Archive Date: 02/18/20 DOCKET NO. 09-07 035A DATE: January 23, 2020 ORDER Entitlement to an initial rating in excess of 10 percent for limitation of flexion right hip prior to February 14, 2013, is denied. Entitlement to an initial rating in excess of 30 percent for limitation of flexion right hip from February 14, 2013 to November 3, 2014, is denied. Entitlement to an initial rating in excess of 20 percent for limitation of abduction right hip from February 14, 2013 to November 3, 2014, is denied. Entitlement to an initial rating in excess of 10 percent for limitation of extension right hip from February 14, 2013 to November 3, 2014, is denied. Entitlement to an initial rating in excess of 50 percent for right total hip replacement from January 1, 2016, is denied. REMANDED The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to February 14, 2013, the Veteran’s limitation of flexion right hip, was not manifested in flexion limited to 30 degrees or less. 2. From February 14, 2013 through November 3, 2014, the Veteran’s limitation of flexion right hip, was not manifested in flexion limited to 10 degrees or less. 3. From February 14, 2013 through November 3, 2014, the Veteran’s limitation of abduction right hip, was assigned the highest rating available under Diagnostic Code 5253. 4. From February 14, 2013 through November 3, 2014, the Veteran’s limitation of extension right hip, was assigned the highest rating available under Diagnostic Code 5251. 5. From January 1, 2016, the Veteran’s right hip total replacement, is not manifested by markedly, severe residual weakness, pain or limitation of motion. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for limitation of flexion right hip, prior to February 14, 2013, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.30, 4.71a, Diagnostic Code 5252. 2. The criteria for entitlement to an initial rating in excess of 30 percent for limitation of flexion right hip, from February 14, 2013, through November 3, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.30, 4.71a, Diagnostic Code 5252. 3. The criteria for entitlement to an initial rating in excess of 20 percent for limitation of abduction right hip, from February 14, 2013, through November 3, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.30, 4.71a, Diagnostic Code 5253. 4. The criteria for entitlement to an initial rating in excess of 10 percent for limitation of extension right hip, from February 14, 2013, through November 3, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.30, 4.71a, Diagnostic Code 5251. 5. The criteria for entitlement to an initial rating in excess of 50 percent for right hip total replacement from January 1, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.30, 4.71a, Diagnostic Code 5054. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2004 to January 2008. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a July 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in December 2012, August 2015 and December 2017. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In a February 2013 rating decision, the Agency of Original Jurisdiction (AOJ) recharacterized the Veteran’s right hip disability as limited flexion of the right hip and granted a 30 percent rating, effective February 14, 2013. The AOJ also granted a separate 20 percent rating for limited abduction of the right hip and a separate noncompensable rating for limited extension of the right hip, both effective February 14, 2013. In a January 2015 rating decision, a temporary 100 percent rating for the Veteran’s right hip disability was assigned from November 3, 2014, the date of surgery, to December 31, 2015, with a proposal to reduce the rating to 30 percent, effective January 1, 2016. The period for convalescence of his right hip following surgery when the Veteran was assigned a temporary total evaluation under 4.30 will accordingly be excluded from consideration from this decision, as the Veteran has been assigned the highest possible evaluation for that period. In an October 2016 rating decision, the AOJ increased the rating for the Veteran’s right hip total replacement to 50 percent, effective January 1, 2016. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown above. AB v. Brown, 6 Vet. App. 35 (1993). In a September 2019 rating decision, the AOJ increased the rating for the Veteran’s limitation of extension of the right hip to 10 percent, from February 14, 2013 through November 3, 2014. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown above. See AB v. Brown, 6 Vet. App. 35 (1993). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that, when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. at 452-54. In this case, in September 2013, the Veteran submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. He reported that he is prevented from securing or following any substantially gainful employment due, in part, to his service-connected right hip disabilities. The Board interprets this statement as an indication that the Veteran feels he is unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities at issue on appeal. Thus, the Board finds that a claim for a TDIU has been raised as part and parcel to the increased rating claim and that this issue is before the Board on appeal and is properly included in the list of issues before the Board. Increased Ratings Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 1. Entitlement to Higher Initial Ratings for Limited Flexion of the Right Hip 2. Entitlement to a Higher Initial Rating for Limited Abduction of the Right Hip 3. Entitlement to a Higher Initial Rating for Limited Extension of the Right Hip 4. Entitlement to a Higher Initial Rating for Right Total Hip Replacement The Veteran seeks higher initial ratings for his service-connected right hip disabilities. The Veteran’s service-connected limitation of flexion of the right hip is rated as 10 percent disabling prior to February 14, 2013 and 30 percent disabling from February 14, 2013 to November 3, 2014 under 38 C.F.R. § 4.71a, Diagnostic Code 5252. The applicable rating period is from January 16, 2008, the effective date for the award of service connection for limitation of flexion right hip, through November 3, 2014. See 38 C.F.R. § 3.400. The Veteran’s service-connected limited abduction of the right hip is rated as 20 percent disabling from February 14, 2013 through November 3, 2014 under 38 C.F.R. § 4.71a, Diagnostic Code 5253. The Veteran’s service-connected limited extension of the right hip is rated as 10 percent disabling from February 14, 2013 through November 3, 2014 under 38 C.F.R. § 4.71a, Diagnostic Code 5251. The Veteran’s service-connected right hip total hip replacement is rated as 100 percent disabling prior to January 1, 2016 and 50 percent disabling from January 1, 2016, under 38 C.F.R. § 4.71a, Diagnostic Code 5054. Under Diagnostic Code 5054, the hip is rated at 100 percent for one year following implantation of prosthesis. A Note to Diagnostic Code 5054 indicates that the 100 percent rating will commence following a 1-month period of convalescence, where the hip is rated 100 percent under 38 C.F.R. § 4.30. Thus, a 100 percent rating is automatically assigned for a maximum 13-month period after a hip replacement. 38 C.F.R. § 4.71a, DC 5054. After the 13-month at 100 percent ends, a minimum of 30 percent is assigned. If there are moderately severe residuals of weakness, pain, or limitation of motion, then a 50 percent rating is warranted. If there is markedly severe residual weakness, pain, or limitation of motion, then a 70 percent rating is warranted. If there is painful motion or weakness such as to require the use of crutches, then a 90 percent rating is warranted. Id. A 90 percent rating is the highest rating permitted for the hip, aside from the periods where a 100 percent rating is expressly permitted. See 38 C.F.R. §§ 3.343(a), 4.68, 4.71a, Diagnostic Code 5160. Under Diagnostic Code 5251, a maximum rating of 10 percent is warranted when there is extension limited to 5 degrees or less. Under Diagnostic Code 5252, limitation of flexion of the thigh to 45 degrees warrants a 10 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; flexion limited to 20 degrees warrants a 30 percent rating; and flexion limited to 10 degrees warrants a 40 percent rating. Under Diagnostic Code 5253, limitation of rotation of the thigh, where one cannot toe-out more than 15 degrees, warrants a 10 percent rating. Limitation of adduction of the thigh, where one cannot cross legs, also warrants a 10 percent rating. Limitation of abduction of the thigh with motion lost beyond 10 degrees warrants a 20 percent rating. Normal ranges of motion of the hip include flexion from 0 degrees to 125 degrees, and abduction from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Turning to the relevant evidence of record, the Veteran was provided a VA examination in June 2008. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported right hip pain of eight out of ten. Upon examination, the Veteran was able to cross his legs and could toe out greater than 15 degrees. The Veteran demonstrated active motion flexion from 0 to 115 degrees with pain beginning at 70 degrees. There was no additional loss of range of motion on repetitive use. The Veteran demonstrated active motion extension from 0 to 25 degrees with pain beginning at 15 degrees. He was able to perform repetitive use testing with no additional loss of range of motion. The Veteran demonstrated right hip abduction from 0 to 20 degrees. There was no additional loss of range of motion after repetitive use. A February 2012 VA orthopedic surgery outpatient note reflects that the Veteran had right hip flexion to 125 degrees and abduction to 20 degrees. The Veteran was provided a VA examination in February 2013. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported flare-ups of the right hip three times per week that last one day. The Veteran did not report reduced range of motion during flare-ups. Upon examination, the Veteran demonstrated right hip flexion to 20 degrees with objective evidence of painful motion at 15 degrees. He demonstrated right hip extension greater than 5 degrees with no objective evidence of painful motion. Abduction was lost beyond 10 degrees and the Veteran was limited such that he could not cross his legs. Limitation was not limited such that the Veteran could not toe out more than 15 degrees. The Veteran was able to perform repetitive use testing without additional loss of range of motion. The Veteran did not have ankylosis of the right hip. Additionally, the Veteran did not have malunion or nonunion of the femur, flail hip joint or leg length discrepancy. On November 3, 2014, the Veteran underwent a total right hip replacement. In March 2016, the Veteran was provided a VA addendum opinion related to the February 2013 VA examination. The VA examiner reviewed the February 2013 VA examination and opined that the reported range of motion for the Veteran’s abduction was more likely than not typed in error and that the Veteran’s actual range of motion upon abduction of the right hip was truly at the time 0 to 10 degrees. The Veteran was provided a VA examination in July 2016. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported flare-ups of the right hip once a week that last all day caused by standing too long. The Veteran did not report loss of range of motion during flare-ups. Upon examination, the Veteran demonstrated right hip flexion to 90 degrees, right hip extension to 15 degrees and right hip abduction to 45 degrees. Pain was noted on flexion and extension. The Veteran was able to cross his legs. The Veteran was able to perform repetitive use testing without additional loss of range of motion. The Veteran did not have ankylosis of the right hip. The Veteran was provided a VA examination in July 2019. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported daily right hip flare-ups precipitated by bending, squatting, walking upstairs/hill, and prolonged walking or standing. The Veteran did not report loss of range of motion during flare-ups. Upon examination, the Veteran demonstrated right hip flexion to 80 degrees, extension to 15 degrees and abduction to 40 degrees with pain on all movement. Abduction was no limited such that the Veteran could not cross his legs. Upon repetitive use, right hip extension was to 10 degrees and right hip abduction was to 35 degrees. The Veteran reported that after repetitive use over time his right hip flexion was to 80 degrees, extension to 10 degrees and abduction to 35 degrees. The VA examiner also opined that, during flare-ups, the Veteran’s right hip flexion was limited to 80 degrees, extension to 10 degrees and abduction to 35 degrees. The Veteran did not have ankylosis of the right hip. He did not have malunion or nonunion of the femur. In August 2019, the Veteran was provided a VA addendum opinion to provide a retrospective medical opinion regarding functional loss during flare-ups prior to his November 2014 hip replacement surgery. The VA examiner opined that prior to the Veteran’s hip replacement surgery he had flexion to 75 degrees, extension to 5 degrees and abduction to 30 degrees. Initially, the Board notes that the Veteran’s service-connected limitation right hip abduction from February 14, 2013 through November 3, 2014, is evaluated under Diagnostic Code 5253. Pursuant to Diagnostic Code 5253, a maximum 20 percent rating is provided for limited thigh abduction if motion is lost beyond 10 degrees, and a 10 percent rating if the legs cannot be crossed. 38 C.F.R. § 4.71a, Diagnostic Code 5253. As such, from February 14, 2013 through November 3, 2014 the Veteran is currently rated at the maximum schedular evaluation possible under the applicable code. As the Veteran has been in receipt of the highest schedular rating available under the relevant diagnostic code, any appeal for a higher schedular rating under that diagnostic code must be denied. Additionally, the Veteran’s limitation of extension right hip from February 14, 2013 through November 3, 2014, is evaluated under Diagnostic Code 5251. Pursuant to Diagnostic Code 5251 a maximum rating of 10 percent is warranted when there is extension limited to 5 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Code 5251. As such, from February 14, 2013 through November 3, 2014 the Veteran is currently rated at the maximum schedular evaluation possible under the applicable code. As the Veteran has been in receipt of the highest schedular rating available under the relevant diagnostic code, any appeal for a higher schedular rating under that diagnostic code must be denied. With regard to the Veteran’s limitation of flexion right hip, the record does not show that the Veteran had flexion limited to 30 degrees or less prior to February 14, 2013, as required for a rating in excess of 10 percent under Diagnostic Code 5252. At the June 2008 VA examination the Veteran demonstrated right hip flexion to 115 degrees and a February 2012 VA orthopedic surgery outpatient note reflects that the Veteran had right hip flexion to 125 degrees. The record also does not show that the Veteran had flexion limited to 10 degrees or less at any time from February 14, 2013 to November 3, 2014, as required for a rating in excess of 30 percent under Diagnostic Code 5252. Accordingly, the criteria for entitlement to a rating in excess of 10 percent prior to February 14, 2013, or in excess of 30 percent from February 14, 2013 through November 3, 2014, for the service-connected limitation of flexion right hip, under Diagnostic Code 5252 have not been met. From January 1, 2016, the Veteran’s right hip total replacement most closely approximates the 50 percent rating criteria under Diagnostic Code 5054. In this regard, there is no evidence indicating that the Veteran has markedly severe residual weakness, pain or limitation of motion. The Board notes that the Veteran did demonstrate limitation of motion of the right hip at the July 2016 and July 2019 VA examinations. However, to warrant a higher rating under Diagnostic Code 5054, the Veteran must exhibit such limitation to a marked degree. Normal range of motion of the hip is from 0 to 125 degrees of flexion. At the July 2016 VA examination, the Veteran demonstrated right hip flexion to 90 degrees and right hip extension to 15 degrees. At the July 2019 VA examination, the Veteran demonstrated right hip flexion to 80 degrees and right hip extension to 15 degrees. The Board finds that such limitation of motion is not markedly severe such as to warrant a 70 percent initial rating under Diagnostic Code 5054. 38 C.F.R. § 4.71a, Diagnostic Code 5054. Additionally, there is also no indication that the Veteran could be assigned a higher rating under any other Diagnostic Code from January 1, 2016. The Veteran has not been found to have any of the conditions which allow for ratings higher than 50 percent, including hip ankylosis, hip flail joint, or nonunion of the femur. See 38 C.F.R. § 4.71a, Diagnostic Codes 5250, 5254, 5255. The Board has considered 38 C.F.R. § 4.59 regarding the Veteran’s painful motion, however, the rating criteria applied since January 1, 2016, under Diagnostic Code 5054, specifically includes consideration of pain. A higher rating based on painful motion is therefore not warranted. See 38 C.F.R. § 4.59; see also Petitti v. McDonald, 27 Vet. App. 415, 425 (2015). The Board therefore finds that the criteria for entitlement to initial ratings for the service-connected right hip disabilities higher than those assigned previously have not been met, the preponderance of the evidence is against the appeal, the benefit-of-the-doubt doctrine is not for application, and the appeals must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this regard, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 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 TDIU As to the issue of entitlement to a TDIU, the Board finds that further development is necessary before a decision on the merits may be made. A September 2019 VA treatment record reflects that the Veteran is employed full-time. Thus, his employment history is unclear. He has not submitted a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, to determine his employment history and employment status since December 2013. As such, on remand the Veteran must be provided a VA Form 21-8940 to clarify his employment history. This matter is REMANDED for the following action: 1. Provide the Veteran a letter explaining the factors pertinent to establishing entitlement to a TDIU. The letter must be enclosed with a VA From 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The letter should inform the Veteran that it is vital to his appeal for entitlement to a TDIU that he provide the information requested on the VA Form 21-8940, to include, but not limited to, a detailed explanation of his employers, the nature of the work performed, the dates of employment, and his reasons for leaving his employment during the appeal period. 2. After completion of the above, review the expanded record and determine whether entitlement to a TDIU may (CONTINUED ON NEXT PAGE) be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine 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.