Citation Nr: 21002963 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 14-14 353 DATE: January 19, 2021 ORDER Entitlement to a compensable rating for left hip degenerative joint disease (DJD), with limited extension, is denied. Entitlement to a compensable rating for right hip DJD, with limited extension, is denied. Entitlement to a rating in excess of 10 percent for left hip DJD, with painful motion, is denied. Entitlement to a rating in excess of 10 percent for right hip DJD, with painful motion, is denied. Entitlement to a compensable rating for right hip DJD, with limited flexion, is denied. Entitlement to a compensable rating for left hip DJD, with limited flexion, is denied. FINDINGS OF FACT 1. The Veteran’s left hip disability is manifested by range of motion of the hip of flexion to 125 degrees, extension to 30 degrees, and abduction to 40 degrees, with no evidence of adduction so limited such that the Veteran cannot cross legs; he also consistently manifested normal muscle strength testing (5/5 for flexion, extension, and abduction), with neither reduction in muscle strength nor muscle atrophy. 2. The Veteran’s right hip disability is manifested by range of motion of the hip of flexion to 125 degrees, extension to 30 degrees, and abduction to 40 degrees, with no evidence of adduction so limited such that the Veteran cannot cross legs; he also consistently manifested normal muscle strength testing (5/5 for flexion, extension, and abduction), with neither reduction in muscle strength nor muscle atrophy. CONCLUSIONS OF LAW 1. The criteria for an entitlement to a compensable rating for left hip degenerative joint disease (DJD), with limited extension, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.69, 4.71, 4.71a, Diagnostic Code 5251. 2. The criteria for an entitlement to a compensable rating for right hip DJD, with limited extension, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.69, 4.71, 4.71a, Diagnostic Code 5251. 3. The criteria for an entitlement to a rating in excess of 10 percent for left hip DJD, with painful motion, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.69, 4.71, 4.71a, Diagnostic Code 5253. The criteria for an entitlement to a rating in excess of 10 percent for right hip DJD, with painful motion, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.69, 4.71, 4.71a, Diagnostic Code 5253. 4. The criteria for an entitlement to a compensable rating for right hip DJD, with limited flexion, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.69, 4.71, 4.71a, Diagnostic Code 5252. 5. The criteria for an entitlement to a compensable rating for left hip DJD, with limited flexion, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.69, 4.71, 4.71a, Diagnostic Code 5252. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1974 to January 1975. The Veteran was afforded a Board hearing in April 2015, but at the time, the claims were for service connection, rather than claims decided herein. The Veteran filed his substantive appeals for the present claims in April 2017 and October 2017, but did not request a Board hearing. In April 2019, the Board, in part, denied claims for increased ratings for bilateral hip DJD, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). Pursuant to a joint motion for partial remand (JMPR) granted by the CAVC in March 2020, the April 2019 Board decision was partly vacated and remanded to obtain a new VA examination that complies with the requirements set forth in Mitchell and its progeny. Correia v. McDonald, 28 Vet. App. 158, 168-69 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In doing so, the parties agreed that the December 2016 and March 2017 VA examiners failed to estimate functional loss based on all the information of record “including the Veteran’s lay information” or to adequately explain the basis for their conclusion that an opinion cannot be offered without resorting to speculation regarding the limitation of functional ability with flare-ups/range of motion during flare-ups. Since then, the Board remanded in August 2020 for compliance with the terms agreed pursuant to the JMPR. The Board finds there has been substantial compliance with the previous Board remand as an adequate VA examination has been obtained. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran’s representative has raised various boilerplate, generalized duty to assist and due process arguments without citing specific issues or deficiencies. See September 2017 Notice of Disagreement (NOD) and Form 9. First, the Veteran’s representative suggested that unspecified VA examinations were inadequate. Neither the Veteran nor his representative identified specific VA examinations when making these assertions. Accordingly, the Board will assume that he contends all of the VA examinations were inadequate. The Board notes that the earlier VA examinations pertaining to hips were found inadequate (see JMPR) for having failed to address functional impairment during flare-ups/flare-ups. As for the October 2020 VA hip examination, the Board rejects his contention and affirmatively finds that this examination was adequate for rating purposes. The VA examiner conducted a thorough in-person examination of the Veteran, reviewed the Veteran’s reports and contentions, and complied with the terms of the JMPR (ie. assessing functional impairment during flare-ups/describing in range of motion such impairments if plausible). See Stefl v. Nicholson, 21 Vet. App. 120, 123-124 (2007). Contrary to the representative’s generic boilerplate contentions, the Board finds that the VA examination contained thorough, clear, and supported findings pertinent to rating his service-connected hip conditions. Accordingly, the Board finds that there is no duty to provide another VA examination. Additionally, the record contains the Veteran’s representative’s multiple boilerplate allegations of constitutional due process deficiencies. See September 2017 NOD. The Board rejects these generalized arguments as vague and conclusory because they failed to specify any particular procedural due process issues. The Board also affirmatively finds that VA satisfied all relevant due process requirements as to the claims being decided herein. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In deciding the Veteran’s claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation already has 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). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a compensable rating for left hip degenerative joint disease (DJD), with limited extension, is denied. 2. Entitlement to a rating in excess of 10 percent for left hip DJD, with painful motion, is denied. 3. Entitlement to a compensable rating for left hip DJD, with limited flexion, is denied. The Veteran seeks higher disability ratings for his left hip degenerative joint disease (DJD). The Veteran is in receipt of a noncompensable rating under DC 5010-5251 for left hip DJD with limited extension, effective February 20, 2017; a 10 percent rating under DC 5010-5253, effective March 12, 2013, for left hip DJD with painful motion and limited abduction, adduction, and bilateral rotation; and a noncompensable rating under DC 5010-5252, effective March 12, 2013, for left hip DJD with limited flexion. Hyphenated diagnostic codes signify that the rating for a service-connected disability is based upon how another disability would be rated. 38 C.F.R. § 4.27. The diagnostic code for the service-connected disability is after the hyphen. Here, the Veteran’s left hip disabilities due to arthritis are rated based on limitation of motion under the appropriate code. Code 5010 represents arthritis due to trauma, substantiated by x-ray findings, which in turn is to be rated under Code 5003 as degenerative arthritis (hypertrophic or osteoarthritis). 38 C.F.R. § 4.71a. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s),a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Id, Code 5003. In this case, the Veteran was noted to have bilateral hip degenerative joint disease based on x-ray findings. Notes (1) and (2) under Code 5003 provides the following: Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Id., Code 5003, Notes (1) and (2). Under Diagnostic Code 5251, a maximum 10 percent disability evaluation is warranted for limitation of extension of the thigh to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Under Diagnostic Code 5252, a 10 percent disability evaluation is assigned for flexion of the thigh limited to 45 degrees. A 20 percent rating is warranted when there is limitation of flexion to 30 degrees. A 30 percent rating is contemplated for limitation of thigh flexion to 20 degrees, and a 40 percent rating is warranted for limitation of thigh flexion to 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Under Diagnostic Code 5253, a 10 percent disability evaluation is assigned for limitation of thigh rotation, with an inability to toe-out in excess of 15 degrees or where there is limitation of adduction such that one cannot cross legs. A 20 percent disability evaluation is warranted for limitation of thigh abduction, where motion is lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. The Veteran underwent multiple VA examinations throughout the appeal period: October 2020, March 2017, and December 2016. However, as briefly addressed in the introduction, with regards to the 2016 and 2017 examinations, the parties to the JMPR found them inadequate to the extent that the examiners failed to either estimate the functional loss based on the information of record, or adequately explain the basis for their conclusion (that they cannot offer an opinion without resorting to speculation regarding flares/functional ability with flare-ups). Thus, while these two examinations lack probative value due to the omission of an adequate discussion of the Veteran’s reports of his flare-ups, the Board will still address them, at least for the purpose of incorporating the Veteran’s reports made during the examinations and addressing the initial/post-repetitive use testing with at least three repetitions. The JMPR did not find that these examinations were inadequate with respect to any of the objective notations such as range of motion, muscle strength, etc., so they remain probative evidence in those respects. In December 2016, the Veteran first underwent a VA examination, during which time he was diagnosed with degenerative arthritis of both hips. He reported progressive hip pain over the years and flare-ups affecting his prolonged standing and identified loss of motion as functional loss. His initial range of motion (ROM) of flexion (both right and left side were identical) was to 120 degrees, extension to 30 degrees, and abduction to 40 degrees, with no evidence of pain with weight bearing, but mild tenderness in the inguinal region. ROM itself was found to contribute to a functional loss (loss of motion), and pain (with abduction) was noted on exam but was not found to result in any functional loss. He was able to perform repetitive use testing with at least three repetitions, without any additional loss of function/ROM. His strength test was normal, with no reduction in muscle strength or muscle atrophy. There was also no evidence of ankylosis, malunion/nonunion of femur, and flail hip joint/leg length discrepancy. He was noted to constantly use a cane. His active ROM of the right and left hip with abduction was noted to have pain from 40 degrees, and all other ROM in the other planes without pain, as well as his passive ROM of the right and left hip in all planes without pain. There was also no pain of the right and left hip with ROM testing with non-weight bearing. In March 2017 VA examination, the Veteran underwent another examination, during which time he reported worsening of bilateral groin pain that is constant that feels as if “someone is trying to take it off the body, like its being split in two” and reported having frequent flare-ups that is of 6/10 most of the time. He also reported getting help at home as he has difficulty with walking. His initial ROM (left side) of flexion was to 110 degrees, extension to 10 degrees, and abduction to 35 degrees, but no adduction limited to such that he cannot cross leg, and as for the right side, flexion to 90 degrees, extension to 15 degrees, and abduction to 30 degrees. There was mild to moderate pain on palpation on groin, as well as evidence of pain with weight bearing. The examiner also indicated that his passive ROM (left side) of flexion would be to 115 degrees, extension to 15 degrees, and abduction to 45 degrees, and (right side) flexion to 95 degrees, extension to 25 degrees, abduction to 40 degrees. However, there was no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions, without any additional loss of ROM/function. He presented normal strength, with no reduction in muscle strength nor muscle atrophy. There was no evidence of ankylosis nor assistive devices. As for functional impact, the examiner indicated that the Veteran was expected to have difficulty with walking within a building more than occasionally and should avoid uneven ground, climbing, crawling, and running, and would be expected to be limited to carrying about 10 pounds, but would be able to sit for a prolonged period. Post-Board remand, the Veteran underwent a VA examination in October 2020, during which time he was diagnosed with femoral acetabular impingement syndrome and bilateral hip degenerative joint disease with painful motion and limited abduction and rotation. The Veteran reported flare-ups of hip (pain) and difficulty walking with flare-ups. His initial range of motion (ROM) of both right and left hip (respectively) flexion was to 125 degrees, extension to 30 degrees, and abduction to 40 degrees, but there was no adduction so limited such that the Veteran cannot cross legs. While pain was noted with abduction/adduction, ROM itself was not found to contribute to a functional loss. He was able to perform repetitive-use testing with at least three repetitions, without any additional loss of ROM/function. With regards to the repetitive use over time and during flare-ups, the examiner indicated “the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare up/functional loss with repetitive use over time” and identified pain and/or stiffness as significantly limiting functional ability, but the examiner was able to describe it in ROM—which was the exact same ROM as that of the initial ROM. He presented normal muscle strength testing (5/5 for flexion, extension, and abduction), with neither reduction in muscle strength, nor muscle atrophy. There was also no evidence of ankylosis, or of malunion/nonunion of femur, flail hip joint/leg length discrepancy. He was noted to constantly use a cane to assist with walking due to hip pain. As for any functional impact, his hip condition was noted to affect his ability to lift, carry, walk for a prolonged period, or sit/stand as such would cause additional pain. There was objective evidence of pain with non-weight bearing, and while ROM with passive motion could not be tested, the examiner explained that such could not be performed/is not medically appropriate. His post-service treatment records contain the Veteran’s reports of severe hip pain and diagnosis of DJD of hip, but do not otherwise seem to provide any range of motion related information. After careful review, the Board finds that for the entire period on appeal, the Veteran is not entitled to a higher rating under any of the DCs he is currently rated under for his left hip disability. The October 2020 VA examiner described the Veteran’s extension of the left hip to be limited to 30 degrees (his initial and post-repetitive use testing with at least three repetitions). Even during flare-ups/repetitive use over time (both during the October 2020 and earlier VA examinations), even after taking into consideration the Veteran’s reports, the 2020 VA examiner was able to describe such in terms of ROM, which were identical to those of initial/post-repetitive use testing results. In addition, the Board notes that testing conducted during all three VA examinations failed to elicit any additional limitation of motion after repetitive-use testing with at least three repetitions. He was consistently found to have normal muscle strength, with no evidence of muscle atrophy or ankylosis. Thus, the Board finds that he is not entitled to a compensable rating under DC 5010-5251. With regards to an entitlement to a compensable rating under DC 5010-5252 for left hip limited flexion, the Board also finds it is not warranted. Although the Board acknowledges his constant use of a cane to assist with walking due to hip pain, his flexion was limited to 125 degrees during the October 2020 VA examination, with no additional limitation of ROM after repetitive-use testing, and the examiner described the Veteran’s flexion as to 125 degrees during flare-ups. As noted immediately above, the Veteran was consistently found to have normal muscle strength testing, with no evidence of muscle atrophy or ankylosis. Thus, the Board finds that he is not entitled to a higher rating under DC 5010-5252. Last but not least, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent under DC 5010-5253 for left hip DJD with painful motion and limited abduction, adduction, and bilateral rotation, as at no time during the appeal period was he ever found to manifest motion (abduction) lost beyond 10 degrees. Although pain was noted on examination with abduction and adduction, his initial ROM of abduction was to 40 degrees, and he was able to perform repetitive-use testing, with no additional limitation of ROM after repetitive-use testing. Moreover, the examiner described the Veteran’s flexion as to 40 degrees during flare-ups. His active ROM of the left hip with abduction was noted to have pain from 40 degrees, and passive ROM of the left hip in all planes without pain, and there was also no pain of the left hip with ROM testing with non-weight bearing. Accordingly, the Board finds that the Veteran has been appropriately compensated for his reported painful motion with limited abduction, adduction, and bilateral rotation. The Board has also considered whether the Veteran’s service-connected left hip disabilities warrant the assignment of any additional or higher rating under other applicable diagnostic codes at any point during the period on appeal. However, because the record contains no evidence of ankylosis, flail joint, or malunion or fracture of the femur, the Board finds that no additional disability ratings are warranted in this case. As the preponderance of the evidence is against the claims for the left hip disabilities, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to a compensable rating for right hip DJD, with limited extension, is denied. 5. Entitlement to a rating in excess of 10 percent for right hip DJD, with painful motion, is denied. 6. Entitlement to a compensable rating for right hip DJD, with limited flexion, is denied. The Veteran seeks higher disability ratings for his right hip degenerative joint disease (DJD). The Veteran is in receipt of a noncompensable rating under DC 5010-5251 for right hip DJD with limited extension, effective February 20, 2017; a 10 percent rating under DC 5010-5253, effective March 12, 2013, for right hip DJD with painful motion and limited abduction, adduction, and bilateral rotation; and a noncompensable rating under DC 5010-5252, effective March 12, 2013, for right hip DJD with limited flexion. After reviewing all records, the Board finds that the Veteran is not entitled to a higher rating under any of the DCs he is currently rated under for his right hip conditions. Even acknowledging the Veteran’s report of flare-ups of hip (ie. severity, frequency, functional impairment) and difficulty walking with flare-ups/constant use of cane due to hip pain, the Board notes that the ROM (initial, after repetitive-use testing) of the Veteran’s right hip flexion was to 125 degrees, extension to 30 degrees, and abduction to 40 degrees. While pain and/or stiffness were identified as significantly limiting functional ability, the examiner still described his ROM as identical to those of the initial/after-repetitive use testing. Moreover, there was no adduction so limited such that the Veteran cannot cross legs. See October 2020 VA examination. His active ROM of the right hip with abduction was noted to have pain from 40 degrees, and passive ROM of the left hip in all planes without pain, and there was also no pain of the right hip with ROM testing with non-weight bearing. Additionally, he presented normal muscle strength testing (5/5 for flexion, extension, and abduction), with no muscle atrophy. In light of above, the Board finds that the Veteran is not warranted any higher rating under any of the DCs he is currently rated under for his right hip disabilities. The Board has also considered whether the Veteran’s service-connected right hip disabilities warrant the assignment of an additional or a higher rating under other applicable diagnostic code, but finds them not applicable. At no time during the appeal period was he found to have ankylosis, flail joint, or malunion or fracture of the femur. As such, the Board finds that a preponderance of the evidence of record weighs against the assignment of a compensable evaluation under DC 5010-5251 and higher evaluation under DCs 5010-5252 and 5010-5253 for right hip disabilities. Thus, the Veteran’s claims are denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.