Citation Nr: 20043790 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 15-10 555 DATE: June 29, 2020 ORDER An initial compensable rating for right hip bursitis/tendinitis with abduction, adduction, and rotation impairment prior to November 1, 2014, and a rating in excess of 10 percent thereafter is denied. FINDING OF FACT 1. The weight of the competent and probative evidence is against finding that, prior to November 1, 2014, the Veteran’s right hip rotation was limited, such that he could not toe-out more than 15 degrees, or adduction limited, such that he could not cross his legs. 2. The weight of the competent and probative evidence is against finding that the Veteran had right hip abduction limited beyond 10 degrees throughout the period on appeal. CONCLUSION OF LAW The criteria for an initial compensable rating for right hip bursitis/tendinitis with abduction, adduction, and rotation impairment prior to November 1, 2014, and a rating in excess of 10 percent thereafter have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5253. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2003 to December 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2014 and December 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Board remanded the above matter for further development. As the requested development has been substantially completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). A brief history is relevant to this claim on appeal. A March 2005 rating decision granted service connection for tendonitis and bursitis of the right hip and assigned an initial evaluation of 10 percent (via DC 5252), effective December 22, 2004. This appeal began when the Veteran filed a claim for increased compensation that VA received in February 2014. Subsequently, a July 2014 rating decision granted a separate rating for right hip bursitis/tendinitis with abduction, adduction, and rotation impairment, evaluated under DC 5253 at 0 percent disabling. The decision also proposed that the evaluation of tendonitis and bursitis, evaluated under Diagnostic Code 5252, be decreased from 10 percent to 0 percent disabling. 07/03/2014, Rating Decision. VA received a notice of disagreement with the July 2104 rating decision and the initial noncompensable rating under DC 5253. Then, a December 2014 rating decision increased the rating under Diagnostic Code 5253 from 0 percent to 10 percent disabling, effective November 1, 2014. The rating decision also decreased the evaluation from 10 percent to 0 percent disabling under Diagnostic Code 5252. 12/01/2014, Rating Decision. The record reflects that the Veteran filed an appeal only regarding the rating evaluated under Diagnostic Code 5253. As noted above, the July 2014 rating decision only proposed to reduce the rating under DC 5252. However, this was not effectuated until the December 2014 rating decision. Correspondence from the Veteran’s attorney representative do not challenge or disagree with the reduction under DC 5252. See Robinson v. Peake, 21 Vet. App. 545, 554 (2008) (explaining that the Board may assume that “an experienced attorney in veteran's law . . . says what he means and means what he says”). For these reasons, the rating assigned for tendonitis and bursitis, evaluated under DC 5252, is not a subject of this current appeal. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Entitlement to a compensable rating for right hip bursitis/tendinitis with abduction, adduction, and rotation impairment prior to November 1, 2014, and a rating in excess of 10 percent thereafter. The Veteran contends that he is entitled to a compensable rating for his right hip condition based on abduction, adduction, and rotation prior to November 1, 2014, and in excess of 10 percent thereafter. The provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5250 to 5255, provide the criteria for rating hip and thigh disabilities. Normal range of motion for the hip is to 125 degrees of flexion, to zero degrees of extension, and to 45 degrees of abduction. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5251, for limitation of extension of the thigh, a 10 percent rating is assigned where extension is limited to 5 degrees. Under Diagnostic Code 5252, for limitation of flexion of the thigh, where flexion is limited to 45 degrees, a 10 percent evaluation is assigned; 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, Diagnostic Code 5252. Under Diagnostic Code 5253, for impairment of the thigh, when rotation is limited, such that one cannot toe-out more than 15 degrees, or adduction limited, such that one cannot cross his legs, a 10 percent evaluation is assigned. When abduction is limited beyond 10 degrees, a 20 percent evaluation is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5253. For Diagnostic 5255, fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion (spiral or oblique fracture) warrants an 80 percent rating; fracture of the shaft or anatomical neck of the femur with nonunion, without loose motion, weight bearing preserved with aid of brace warrants a 60 percent rating; fracture of the surgical neck of the femur with false joint warrants a 60 percent rating; malunion of the femur with marked knee or hip disability warrants a 30 percent rating; malunion of the femur with moderate knee or hip disability warrants a 20 percent rating; and malunion of the femur with slight knee or hip disability warrants a 10 percent rating. 38 C.F.R. § 4.71a, DC 5255. The treatment records reveal that, in April 2012, the Veteran was referred to the pain clinic due to complaints of lower back and right hip pain. 04/01/2014, CAPRI, page 17. Additionally, during an April 2014 visit with his private provider, the Veteran described his hip pain as sharp and intermittent, and that it tends to be aggravated by sitting in a car and is alleviated by laying down. 10/30/2014, Medical Treatment Record – Non-Government Facility, page 6. A May 2014 VA examination noted the diagnosis of right hip bursitis and tendinitis. Range of motion (ROM) testing revealed flexion of 115 degrees with no objective evidence of painful motion. Extension was greater than 5 degrees with no objective evidence of painful motion. Abduction was not lost beyond 5 degrees. Adduction was not lost beyond 10 degrees, nor was adduction so limited that he could not cross his legs. Additionally, rotation was not limited that he could not toe-out more than 15 degrees. Repetitive use testing, after 3 repetitions, revealed no additional loss of range of motion in the right hip. The Veteran reported flareups, particularly during prolonged standing or sitting. The examiner also opined that there is no pain, weakness, fatiguability, or incoordination that could significantly limit functional ability during flareups or when the hip joint is used repeatedly over a period of time. The Veteran did not have ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. 05/28/2014, C&P Exam. A November 2014 VA examination conducted ROM testing, which revealed flexion of 125 degrees and extension greater than 5 degrees, with no objective evidence of painful motion. Abduction was not lost beyond 5 degrees. Adduction was not lost beyond 10 degrees, nor was adduction so limited that he could not cross his legs. Additionally, rotation was not limited that he could not toe-out more than 15 degrees. Pain was noted in abduction, external rotation, and internal rotation. The examiner noted that pain, weakness, fatiguability, or incoordination did not significantly limit functional ability with repeated use over time, with the examination having been conducted immediately after repetitive use over time. The Veteran reported flareups with mild to moderate severity, and frequency and duration changing depending on the Veteran’s activity. The examiner was unable to opine on the loss of functional ability during flareups without resort to mere speculation, as the Veteran was not experiencing a flareup during the examination. The Veteran did not have ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. 11/01/2014, C&P Exam. In a July 2015 correspondence, the Veteran’s attorney representative contended that the November 2011 VA examination was inadequate and not representative of his functional impairment because the examination was conducted shortly after he had received an injection to his hip, which reduced pain. 07/17/2015, Third Party Correspondence. In July 2018, the Board noted the Veteran’s contention with regard to the inadequacy of the November 2011 VA examination and remanded the claim. The Agency of Original Jurisdiction (AOJ) was directed to provide the Veteran with an opportunity to identify any outstanding private or VA treatment records. The AOJ was to make at least two attempts to obtain private treatment records from identified sources, as well as all reasonable attempts to obtain any federal records. Additionally, the AOJ was directed to afford the Veteran another VA examination to determine the severity of his right hip condition. The examiner was directed to elicit information regarding the severity, frequency, and duration of any flareups. 07/31/2018, BVA Decision. The record reflects that the AOJ made at least two attempts to receive the name, address, and dates of any treatment, examination, or other relevant private treatment records from the Veteran. 07/30/2019, Subsequent Development Letter; 09/20/2019, Subsequent Development Letter. An October 2019 VA examination conducted ROM testing, which revealed flexion of 100 degrees and extension greater than 5 degrees. Abduction was not lost beyond 5 degrees as the initial ROM as to 30 degrees. Adduction was not lost beyond 10 degrees, nor was adduction so limited that he could not cross his legs. Additionally, rotation was not limited that he could not toe-out more than 15 degrees. Pain was noted on flexion, abduction, internal rotation, and external rotation, but did not result in functional loss. Repetitive use testing, after 3 repetitions, revealed functional loss due to pain and fatigue, with flexion of 95 degrees and extension greater than 5 degrees. Abduction was not lost beyond 5 degrees as it was to 25 degrees. Adduction was not lost beyond 10 degrees, nor was adduction so limited that he could not cross his legs. Additionally, rotation was not limited that he could not toe-out more than 15 degrees. The examiner estimated the additional functional loss due to repetitive use over time or during a flareup in terms of ROM. Specifically, the examiner estimated flexion of 95 degrees, extension greater than 5 degrees, abduction not lost beyond 5 degrees as it as to 25 degrees, adduction was not lost beyond 10 degrees, adduction not so limited that he could not cross his legs, and rotation not so limited that he could not toe-out more than 15 degrees. The examiner also noted objective evidence of pain on passive ROM testing of the right hip, and no pain on non-weight bearing testing of the right hip. Additionally, the Veteran reported flareups with an unknown frequency. The severity of the flareups were described as 8 or 9, with 10 being the most painful. The duration of the flareups are between a few days and up to multiple weeks. The flareups are precipitated by bending over, lifting, weather changes, or nothing in particular. And the flareups are alleviated by nothing but time. The Veteran did not have ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. 10/24/2019, C&P Exam. After review of the competent and probative evidence, the Board finds that compensable rating for right hip bursitis/tendinitis with abduction, adduction, and rotation impairment is not warranted under Diagnostic Code 5253 prior to November 1, 2014. Throughout the period on appeal, the Veteran’s right hip rotation was not so limited such that he could not toe-out more than 15 degrees, nor was his adduction so limited such that he could not cross his legs. Additionally, prior to November 1, 2014, the Veteran was assigned a rating of 10 percent disabling under Diagnostic Code 5252 for painful motion. A separate compensable rating under DC 5253 prior to November 1, 2014, based on painful motion would result in impermissible pyramiding (i.e., duplicate compensation for the same symptom/impairment, here, pain related to the service-connected right hip). 38 C.F.R. § 4.14. Moreover, the Board finds that a rating in excess of 10 percent for right hip bursitis/tendinitis with abduction, adduction, and rotation impairment is not warranted under Diagnostic Code 5253 as of November 1, 2014. Throughout the period on appeal, the Veteran has not had right hip abduction limited beyond 10 degrees. Additionally, a compensable rating under Diagnostic Code 5251 for limited extension is not warranted, as the Veteran had extension of at least 10 degrees throughout the period on appeal. Also, the Veteran has a separate right hip rating for limited flexion under Diagnostic Code 5252. A rating under 5250 is not warranted as the Veteran has never had ankylosis of his hip per the VA examination reports detailed above. Additionally, ratings under 5254 or 5255 are not warranted as he does not have flail joint or impairment of the femur with fracture of the shaft or anatomical neck, fracture of surgical neck with false joint, or malunion. Lastly, the weight of the evidence does not support a finding that the Veteran’s disability picture due to functional loss/limitations or flare-ups with limitation of motion is more nearly approximated at the next higher compensable level. Considering the Deluca and Mitchell factors, and the evidence of record, the Board finds that the current rating already compensates the Veteran for any functional loss due to pain affecting the right hip, to include pain and limited motion. Deluca v. Brown, 8 Vet. App. 202, 204-07 (1995). In light of the foregoing, the Board finds that an increased rating due to functional impairment would not be appropriate under the criteria for 38 C.F.R. §§ 4.40 and 4.45. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.