Citation Nr: 20021950 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 17-15 861 DATE: March 30, 2020 ORDER Entitlement to a disability rating of 70 percent, but no higher, for the Veteran’s right hip strain with instability and osteoarthritis, status post Birmingham resurfacing, is granted. The appeal as to the claim of entitlement to an increased rating for left knee osteoarthritis is dismissed. FINDINGS OF FACT 1. The Veteran’s right hip Birmingham resurfacing is a hip replacement for VA purposes. 2. Throughout the appeal period, the Veteran’s right hip strain with instability and osteoarthritis, status post Birmingham resurfacing, has been most nearly approximated by markedly severe residual pain and limitation of motion. 3. At his February 2020 Board hearing, and prior to the promulgation of a decision, the Veteran requested to withdraw his appeal regarding entitlement to an increased rating for left knee osteoarthritis. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, but no higher, for right hip strain with instability and osteoarthritis, status post Birmingham resurfacing, have been met. 38 U.S.C. §§ 1101, 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5054, 5250-5255 (2019). 2. The criteria for withdrawal of an appeal by the Veteran for the issue of entitlement to an increased rating for left knee osteoarthritis have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.205 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1990 to August 1990, from March 2007 to August 2008, and from March 2012 to December 2012, with additional service in the Army National Guard. This matter comes to the Board of Veterans’ Appeals (Board) from a March 2015 rating decision which, in pertinent part, continued a 10 percent evaluation for right hip strain with instability and osteoarthritis, status post Birmingham resurfacing, with limitation of extension; granted service connection for right hip strain, limitation of flexion, evaluated as noncompensable, effective July 3, 2014; and granted service connection for left knee osteoarthritis, evaluated as noncompensable, effective August 19, 2014. In July 2019, the RO granted an increased 10 percent evaluation for the Veteran’s left knee osteoarthritis, effective October 26, 2018. In February 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability 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 disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson v. West, 12 Vet. App. 119 (1999). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran’s benefits is set forth in 38 U.S.C. § 5107 (2012). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).   Entitlement to a disability rating in excess of 10 percent for right hip strain with instability and osteoarthritis, status post Birmingham resurfacing, with limitation of extension; and entitlement to an initial compensable disability rating for right hip strain with limitation of flexion. The Veteran contends that increased ratings are warranted for his right hip disability. Specifically, he contends that his right hip disability should be rated under Diagnostic Code (DC) 5054, which provides criteria for rating a disability arising from a hip replacement or hip prosthesis. The Veteran is currently rated at 10 percent for right hip strain with instability and osteoarthritis, status post Birmingham resurfacing, with limitation of extension under 38 C.F.R. § 4.71a, DC 5251 and noncompensable for right hip strain with limitation of flexion under DC 5252. DCs 5151 and 5252 provide criteria for rating disabilities of the hip and thigh based on limitation of motion. Under Diagnostic Code 5054, for hip replacement, a 100 percent rating is to be assigned for a one-year period following implantation of the prosthesis. Thereafter, a 90 percent rating is warranted with painful motion or weakness such as to require the use of crutches; a 70 percent rating is warranted for markedly severe residual weakness, pain, or limitation of motion; a 50 percent rating is warranted for moderately severe residuals of weakness, pain, or limitation of motion; and 30 percent is the minimum rating for symptomatology of a lesser degree. 38 C.F.R. § 4.71a. The terms “markedly severe” and “moderately severe” as used under Diagnostic Code 5054 are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula to determine when symptomatology is “markedly severe” or “moderately severe,” the Board must evaluate all of the evidence to ensure an “equitable and just” decision. 38 C.F.R. § 4.6. Under Diagnostic Code 5250, for ankylosis of the hip, a 60 percent rating is assigned for favorable ankylosis, in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction; a 70 percent rating is assigned for intermediate ankylosis; and a 90 percent rating is assigned for unfavorable ankylosis, extremely unfavorable ankylosis, with the foot not reaching the ground, and crutches necessitated. 38 C.F.R. § 4.71a. Under DC 5251, limitation of extension of the thigh to 5 degrees warrants a 10 percent rating. Under DC 5252, limitation of flexion of the thigh to 45 degrees warrants a 10 percent evaluation; to 30 degrees warrants a 20 percent evaluation; to 20 degrees warrants a 30 percent evaluation; and to 10 degrees warrants a 40 percent evaluation. Under DC 5253, limitation of abduction of motion lost beyond 10 degrees warrants a 20 percent rating. Limitation of adduction, cannot cross legs, warrants a 10 percent rating. Limitation of rotation of affected leg, cannot toe-out more than 15 degrees, warrants a 10 percent rating. If the hip has become a flail joint, the rating is 80 percent under Diagnostic Code 5254. Under Diagnostic Code 5255, a fracture of the femur with nonunion or false joint may be rated at 60 or 80 percent. Normal range of motion of the hip is from 0 to 125 degrees of flexion and 0 to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5275, which pertains to shortening of bones of the lower extremity, when the shortening is from 11/4 to 2 inches (3.2 centimeters to 5.1 centimeters), a 10 percent rating is assigned. When the shortening is from 2 to 2 1/2 inches (5.1 centimeters to 6.4 centimeters), a 20 percent rating is assigned. When the shortening is from 2 1/2 to 3 inches (6.4 centimeters to 7.6 centimeters), a 30 percent rating is assigned. When the shortening is from 3 to 3 1/2 inches (7.6 centimeters to 8.9 centimeters), a 40 percent rating is assigned. The RO denied the Veteran’s request to have his right hip rated under the provision of Diagnostic Code 5054 on the basis that the Veteran’s 2012 Birmingham hip resurfacing did not constitute a total hip replacement. The RO explained that unlike a traditional hip replacement, Birmingham hip resurfacing does not completely replace the femoral head, but instead, it is reshaped and capped with a metal prosthesis. Additionally, the hip socket is fitted with a metal cup rather than thick layer of hard plastic like in a traditional hip replacement. Thus, at issue here is whether the Veteran’s Birmingham hip resurfacing is hip replacement under DC 5054. The Board finds that it is. A careful review of the medical evidence and imaging studies reveals the Veteran underwent right hip resurfacing arthroplasty in March 2012, in which a prosthesis was placed in the femoral head during a Birmingham procedure. The governing regulation requires only that there is a prosthetic replacement of the head of the femur or of the acetabulum. The RO’s emphasis upon how much of the joint was impacted was therefore misplaced in the Veteran’s case. Because the Veteran had a prosthetic replacement of the head of his femur in 2012, the provisions of Diagnostic Code 5054 are applicable, regardless of how much or how little of the acetabulum bone was removed to accommodate the metal cup. While it may in fact be medically unusual to only replace one half of the hip joint with a prosthesis, the regulation defines the replacement of only one half of the joint as a “hip replacement.” As the Veteran had both parts of his hip replaced with metal prosthetics in 2012, his surgery fits squarely into the VA’s own definition of a hip replacement. Furthermore, the United States Court of Appeals for Veterans Claims (Court) issued a precedential panel decision upholding VA’s general interpretation of § 4.71a. In Hudgens v. Gibson, 26 Vet. App. 558 (2014), the Court upheld a Board decision that Diagnostic Code 5055 applies only to total knee prosthetic replacements. The Court determined that the plain language of Diagnostic Code 5055 was unambiguous and found that the medical definition of “knee joint” encompassed three distinct compartments of the knee and that “[n]othing in the plain language of the regulation indicates that it applies to replacements of less than a complete knee joint . . . .” Pertinent to this particular case, the Court cited Diagnostic Code 5054, for hip joint prosthesis, as an example of when VA intends to evaluate partial joint replacement. Diagnostic Code 5054, also under § 4.71a, provides evaluation criteria for “[p]rosthetic replacement of the head of the femur or of the acetabulum,” which together make up the hip joint. In other words, the Court emphasized that a post-surgical 100 percent disability rating for one year is indeed appropriate for a hip joint replacement under Diagnostic Code 5054, in contrast with the knee joint, where a total replacement must be undertaken to support such a rating. In part, based upon the Hudgens case, VA has amended the rating criteria to clarify that a total knee joint replacement is required for the assignment of a 100 percent rating for one year, while a total hip joint replacement is not required for this rating. Thus, based upon the Veteran’s relevant medical history, the Board finds that it is appropriate to reassign the Veteran a rating under DC 5054. Furthermore, reassigning the Veteran a rating under 5054 is not detrimental to his overall evaluation, as discussed in further detail below. As discussed above, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Here, the March 2015 rating decision on appeal stems from a November 19, 2014 request from the Physical Evaluation Board (PEB), in which the PEB indicated that it had found the Veteran physically unfit to continue military service and requested a disability rating percentage with rationale for the Veteran’s conditions. As such, the Board has considered the Veteran’s claims from November 19,2013, or one year prior to the November 19, 2014 claim. Turning to the evidence of record, October 2013, April 2014, and June 2014 private treatment records reflect the Veteran reported worsening symptoms since his 2012 hip surgery, with limited mobility and chronic discomfort. The Veteran reported pain with movement, and a subluxation-type shift was noted during examination. A September 2014 VA examination report reflects that the Veteran reported pain and difficulty moving, with flare-ups of pain with movement. Upon examination, right hip flexion was to 50 degrees, with pain beginning at 5 degrees; extension was to 5 degrees, with pain beginning at 5 degrees; adduction was to 10 degrees, with pain beginning at 5 degrees; abduction was to 40 degrees, with pain beginning at 5 degrees; and internal and external rotation were to 20 degrees each, with pain beginning at 5 degrees. The Veteran could still cross his legs and repetitive use did not further limit range of motion, but less movement than normal and pain on movement did contribute to functional loss and/or impairment. The examiner noted that pain, weakness, fatigability, and/or incoordination limited functional ability during flare-ups and repeated use over time, with an additional loss of 5 degrees of flexion only. The Veteran’s right hip was tender to touch, but there was no loss of muscle strength, ankylosis, malunion or nonunion of the femur, flail hip joint, or leg discrepancy, and the Veteran did not require the use of an assistive device. While the examiner indicated the Veteran did not have a total hip replacement, the examiner noted that the Veteran has residuals of pain and limited movement from his 2012 arthroplasty. January 2015 private treatment records note right hip pain that limited activities, reduced range of motion, and resulted in reduced muscle strength of 4/5 in flexion, internal and external rotation, and abduction. VA treatment records note continued pain and that the Veteran underwent a right hip arthroscopy in August 2017 to debride scar tissue and release the psoas. An October 2017 VA examination report reflects the Veteran reported right hip popping and a dull, achy, intermittent pain during activity with an intensity of 6 to 7 out of 10. The Veteran reported flare-ups, especially during activity. Upon examination, flexion was to 100 degrees, extension to 30 degrees, abduction and adduction to 25 degrees each, external rotation to 15 degrees, and internal rotation to 20 degrees. The examiner noted that adduction was limited such that the Veteran could not cross his legs, with pain in all ranges of motion causing functional loss. Repetitive use testing resulted in flexion to 90 degrees, extension to 20 degrees, abduction to 40 degrees, adduction to 15 degrees, external rotation to 10 degrees, and internal rotation to 20 degrees, with pain and weakness causing functional loss. The examiner indicated that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repeated use over time or during a flare-up, and the examiner was unable to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability or determine whether there was additional loss of range of motion as the examination was not being conducted during such a time. Muscle strength was reduced to 4/5, but there was no muscle atrophy, ankylosis, malunion or nonunion of the femur, flail hip joint, or leg discrepancy. An April 2019 VA examination report reflects that the Veteran reported pain with standing, sitting, bending, ambulation, and turning onto his hip while sleeping. The Veteran denied flare-ups but reported that climbing stairs aggravated his hip. Upon examination, range of motion was flexion to 70 degrees, extension to 20 degrees, abduction to 30 degrees, adduction to 25 degrees, external rotation to 40 degrees, and internal rotation to 20 degrees. The Veteran was unable to cross his legs and range of motion and pain contributed to functional loss, with pain in all ranges of motion. Observed repetitive use did not further reduce range of motion, but repeated use over time resulted in range of motion of flexion to 60 degrees, extension to 15 degrees, abduction to 25 degrees, adduction to 20 degrees, external rotation to 35 degrees, and internal rotation to 15 degrees, with pain, fatigue, weakness, and lack of endurance limiting functional ability. The Veteran’s right hip was tender to palpation, but there was no muscle weakness or atrophy, ankylosis, malunion or nonunion of the femur, flail hip joint, or leg length discrepancy, and the Veteran did not require the use of an assistive device. The examiner found that the Veteran’s right hip disability caused less movement than normal, disturbances of locomotion, and interference with standing and sitting. After a review of the medical evidence, the Board finds that the Veteran’s 2012 Birmingham right hip resurfacing has resulted in markedly severe residuals of pain and limitation of motion and is more nearly approximated by a 70 percent rating under DC 5054. Specifically, the Veteran’s flexion has been limited to as much as 45 degrees, extension to 5 degrees, abduction to 25 degrees, adduction to 10 degrees, external rotation to 10 degrees, and internal rotation to 15 degrees. The Veteran is no longer able to cross his legs and pain, fatigue, weakness, and lack of endurance limit functional ability. The Veteran reports a popping in his hip, and subluxation-type motion and weakness has been noted on examination. However, there is no evidence that the Veteran has had painful motion and weakness such as to require the use of crutches. Thus, the Board finds that a 70 percent rating, but no higher, is warranted for the Veteran’s right hip disability. The Board has considered rating criteria based on limitation of motion and hip joint disabilities found in DCs 5250 through 5255, and 5275. However, the other diagnostic codes, considered separately or in conjunction, for hip disabilities either would not avail the Veteran of a higher disability rating or are not appropriate based on the facts of this case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). There is no probative medical evidence or lay allegation of ankylosis, nonunion deformity due to fracture of the femur, hip flail joint, or shortening of the lower extremity during the appellate period. Additionally, while the Veteran had reduced muscle strength of 4/5 in ranges of motion, there was no evidence of atrophy. Reduced muscle strength without atrophy is more closely approximated by a slight muscle injury, which is noncompensable. Additionally, weakness is a symptom considered under DC 5054. Thus, the Board finds that a higher or separate rating is not warranted under 38 C.F.R. § 4.73, DC 5314. See also 38 C.F.R. § 4.56. The Board notes that the with the grant of a 70 percent rating under 5054, the Veteran is in receipt of the maximum schedular rating available based on limitation of motion in the absence of ankylosis or the use of crutches; thus, any deficiencies in the VA examinations of record concerning range of motion testing described in the final sentence of 38 C.F.R. § 4.59, or assessment of additional functional impairment on flare-up is rendered harmless. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). As such, additional development regarding the right hip disability would not result in any further benefit to the Veteran and would cause an unnecessary delay in the adjudication of the case. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). In sum, resolving all doubt in his favor, the Board finds that a 70 percent rating, but no higher, is warranted for the Veteran’s right hip strain with instability and osteoarthritis, status post Birmingham resurfacing.   Withdrawn Claims Entitlement to a disability rating in excess of 10 percent for left knee osteoarthritis. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant on record at a hearing. In the present case, the Veteran’s left knee osteoarthritis was initially evaluated as noncompensable. The Veteran indicated in a May 2015 notice of disagreement that he sought a 10 percent rating. In July 2019, the RO granted an increased 10 percent evaluation. During the February 2020 Board hearing, the Veteran indicated that the rating for his left knee osteoarthritis had been increased to 10 percent, that he accepted the rating, and that he wished to withdraw his increased rating claim. As the Veteran has been granted the benefit sought on appeal and indicated that he wished to withdraw the claim, there remain no allegations of error of fact or law for appellate consideration as they relate to the increased rating claim. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue and it is dismissed. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, Associate Counsel 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.