Citation Nr: 21001510 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 16-47 533 DATE: January 8, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for left hip limitation of adduction since December 30, 2019, is denied. Entitlement to a disability rating in excess of 10 percent for left hip limitation of extension prior to December 30, 2019, is denied. Entitlement to a compensable disability rating for left hip limitation of extension since December 30, 2019, is denied. Entitlement to a disability rating in excess of 30 percent for left hip limitation of flexion since December 30, 2019, is denied. REMAND Entitlement to a compensable disability rating for left hip limitation of adduction prior to December 30, 2019, is remanded. Entitlement to a compensable disability rating for left hip limitation of flexion prior to December 30, 2019, is remanded. FINDINGS OF FACT 1. Since December 30, 2019, the Veteran’s left hip limitation of adduction has not resulted in a limitation to 10 degrees or less. 2. Prior to December 30, 2019, the Veteran was in receipt of the highest schedular rating for left hip limitation of extension. 3. Since December 30, 2019, the Veteran’s left hip limitation of extension has not been shown to be less than 20 out of 30 degrees and was well above the 5 degrees required for a compensable rating. 4. Since December 30, 2019, the Veteran’s left hip limitation of flexion has been no less than 20 degrees. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for limitation of adduction of the left hip since December 30, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5253. 2. The criteria for a disability rating in excess of 10 percent for limitation of extension of the left hip prior to December 30, 2019, were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5251. 3. The criteria for a compensable disability for limitation of extension of the left leg and hip since December 30, 2019, 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. 4. The criteria for a disability rating in excess of 30 percent for left hip limitation of flexion since December 30, 2019, 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty military service from February 1988 to February 1992, from December 2003 to December 2005, and from April 2008 to September 2010, including service in Southwest Asia. Increased Rating The Veteran suffered an injury to the left hip in service, which has resulted in a disability limiting the movement and functionality. In accordance with the disability rating schedule, the Veteran’s hip has been rated based on each type of functional mobility which has been impacted, adduction, extension, and flexion. In addition, because the severity of the disability and the level of impact changed during the appeals period, staged ratings have been assigned to each type of functional loss, in accordance with the evidence. The Veteran contends that he is entitled to a higher disability rating because of his levels of pain when performing basic household chores, playing with his children, or engaging in sexual relations with his wife. Based on the evidence of record, this decision will address only the disability ratings assigned as of December 30, 2019. Those assigned for the time period prior to December 30, 2019, will be addressed in the Remand section below. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Entitlement to a disability rating in excess of 10 percent for left hip limitation of adduction since December 30, 2019 The Veteran’s left hip limitation of adduction is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5253, for impairment of the thigh. Under Diagnostic Code 5253, a 10 percent rating is warranted for limitation of rotation of affected leg, cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, cannot cross legs. A maximum 20 percent rating is warranted for limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent after December 30, 2019. The results of the most recent VA examination, in December 2019, show that the Veteran’s range of motion was severely limited, particularly as it pertained to rotation of the left femur. He had adduction to 15 out of 25 degrees and could not cross his legs. (See C&P Exam 01/15/2020.) Rotation was limited to 20 out of 60 degrees externally and 15 out of 40 degrees internally. He denied experiencing any flare-ups of pain. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and incoordination, particularly on repetitive motion, and severe limitation of rotation of the left femur shown at the most recent examination. In addition, the Board notes that at the December 2019 VA examination he denied experiencing flare-ups that would result in additional functional loss. The Board has also considered the other diagnostic codes pertaining to the hip and thigh. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Ratings under the other applicable codes are addressed below. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a disability rating in excess of 10 percent for left hip adduction since December 30, 2019. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Entitlement to a compensable disability rating for left hip limitation of extension since December 30, 2019 The Veteran’s left hip limitation of extension is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5251, for limitation of extension of the thigh. Under Diagnostic Code 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Prior to December 30, 2019, the Veteran was in receipt of the highest schedular rating for limitation of extension of the thigh. The Board acknowledges that the findings on previous examinations were not in compliance with the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017) regarding estimation of functional loss during flare-ups. However, this is deemed harmless error, with respect to the rating criteria for limitation of extension, as the highest schedular rating was already in effect and an estimation under Sharp would not have warranted an increase. There is no basis in the record for an extraschedular rating for that period of time. The Veteran’s assigned disability rating was reduced to noncompensable or 0 percent disabling after the VA examination in December 2019. At that examination, the Veteran’s range of motion testing demonstrated extension to 20 out of 30 degrees. (See C&P Examination, 01/15/2020.) This finding is well in excess of the 5 degrees required for a 10 percent disability rating, warranting assignment of a noncompensable disability rating at this point. The Board has also considered the other Diagnostic Codes pertaining to the hip and thigh. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Ratings under other criteria are addressed above and below. Entitlement to a disability rating in excess of 30 percent for left hip limitation of flexion since December 30, 2019 The Veteran’s left hip limitation of flexion is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5252, for limitation of flexion of the thigh. Under Diagnostic Code 5252, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 20 degrees. A maximum 40 percent rating is warranted for flexion limited to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. At the December 2019 VA examination, the Veteran’s range of motion testing showed flexion to 25 degrees out of 125 degrees. On repetitive motion testing, this was reduced to 20 degrees of flexion. (See C&P Exam, 01/15/2020.) These findings meet the requirements for a 30 percent disability rating. However, the evidence does not support a rating in excess of 30 percent for limitation of flexion. The 30 percent rating accounts for the increased functional loss resulting from repetitive use and the pain associated with it. The evidence does not indicate a more significant functional loss that would warrant a still higher, 40 percent, disability rating by more nearly approximating flexion limited to 10 degrees. The Board has also considered the other diagnostic codes pertaining to the hip and thigh, as discussed above with respect to the other ratings assigned. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a compensable disability rating prior to December 30, 2019 and a rating in excess of 30 percent thereafter for limitation of flexion of the left hip. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to a compensable disability rating for left hip limitation of adduction prior to December 30, 2019 Entitlement to a compensable disability rating for left hip limitation of flexion prior to December 30, 2019 Prior to December 30, 2019, the Veteran was afforded VA examinations of his left hip disability in March 2011 and in April 2016. Based on the examinations performed, the disability ratings assigned for that period of time were appropriate. However, the findings of those examinations did not sufficiently address the question of functional effects of flare-ups on the Veteran’s range of motion. As such, the examination findings are inadequate under Sharp v. Shulkin, 29 Vet. App. 26 (2017), which held that an inability to observe a flare-up was in insufficient basis to decline to estimate its functional effects. In order to afford the Veteran the most thorough and appropriate assessment of the severity of his left hip disabilities prior to December 30, 2019, the Board finds that a remand for an addendum opinion is necessary. Accordingly, the case is REMANDED for the following action: Obtain an addendum opinion regarding the impact of flare-ups on the Veteran’s left hip disabilities, particularly on adduction and flexion for the period prior to December 30, 2019. Specifically, the opinion should include an estimate of flare-ups on the Veteran’s range of motion, including loss of functionality insofar as it is possible. The estimate should be based on the information of record and a description of the Veteran’s symptoms and personal experience of pain flare-ups, including the severity, frequency, duration, or functional loss. Only if the examiner finds that an estimate cannot be given in terms of degrees of lost motion as a result of a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner, can the examiner state that the opinion cannot be provided without resort to speculation. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Cheryl E. Handy 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.