Citation Nr: 21003533 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 09-30 993 DATE: January 21, 2021 ORDER Entitlement to an initial rating in excess of 10 percent, until December 3, 2013, for right hip bursitis is denied. Entitlement to an initial rating in excess of 20 percent for impaired flexion due to right hip bursitis is denied. Entitlement to an initial compensable rating for impaired extension due to right hip bursitis is denied. FINDINGS OF FACT 1. From May 13, 2007 to December 3, 2013, the Veteran’s right hip disability was manifested by noncompensable limitation of motion with pain. 2. As of December 3, 2013, there is no competent medical evidence on record to suggest that the Veteran’s right hip flexion is limited to 20 degrees or less. 3. As of December 3, 2013, there is no competent medical evidence on record to suggest that the Veteran’s right hip extension is limited to 5 degrees or less. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent, until December 3, 2013, for his right hip bursitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5019. 2. The criteria for an initial disability rating in excess of 20 percent for impaired flexion due to right hip bursitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5252. 3. The criteria for an initial compensable rating for impaired extension due to right hip bursitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5251. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2003 to May 2007. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran’s claim has been remanded on five separate occasions by the Board in order to obtain further development. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each disability must be considered from the point of view of the Veteran who is working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Entitlement to an initial rating in excess of 10 percent, until December 3, 2013, for right hip bursitis 2. Entitlement to an initial rating in excess of 20 percent for impaired flexion due to right hip bursitis 3. Entitlement to an initial compensable rating for impaired extension due to right hip bursitis The Veteran is seeking higher ratings for his service-connected right hip bursitis. Bursitis is rated as for arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5019. The Board notes that during the course of the appeal, the Veteran was granted service connection for impaired thigh due to right hip bursitis, as of January 18, 2020, with a noncompensable rating. However, the Board notes that this disability rating percentage has not been appealed to the Board. Therefore, the Board shall not evaluate this specific disability in its decision. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. Id. Each hip is considered a major joint. 38 C.F.R. § 4.45(f). 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. Limitation of motion of the hip or hip or thigh may be rated under Diagnostic Code 5250 (ankylosis of the hip), Diagnostic Code 5251 (limitation of extension), Diagnostic Code 5252 (limitation of flexion), or Diagnostic Code 5253 (impairment of the thigh). Diagnostic Code 5250 for ankylosis of the hip does not apply because ankylosis has not been demonstrated by objective, competent medical evidence. Although the Veteran is competent to report is symptom of right hip stiffness, he is not competent to self-diagnosis ankylosis. See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (defining ankylosis as immobility and consolidation of a joint due to disease, injury, or surgical procedure). While he certainly has limited bilateral hip motion, it is not ankylosed. Diagnostic Code 5251 provides a 10 percent disability rating for limitation of extension of the hip or thigh that is limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Under Diagnostic Code 5252, ratings for limitation of flexion of the hip or thigh are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; flexion limited to 20 degrees is 30 percent rating; and flexion is limited to 10 degrees is 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5252. Under Diagnostic Code 5253, where there is limitation of rotation of the hip or thigh to the point that the claimant cannot toe-out more than 15 degrees, a 10 percent evaluation is assigned. A 10 percent rating is also assigned where there is limitation of abduction to the point at which the claimant cannot cross his legs. A 20 percent rating is assigned where there is limitation of abduction of the hip or thigh, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. Assigning multiple ratings based on the same symptoms or manifestations of a disability constitutes prohibited pyramiding. 38 C.F.R. § 4.14. However, the Board finds that assigning separate ratings based on limitation of extension, flexion, adduction and rotation of the hip under DC 5251, 5252 and 5253 would not amount to pyramiding under 38 C.F.R. § 4.14. Separate ratings under different diagnostic codes may be assigned where "none of the symptomatology for any of [the] conditions is duplicative of or overlapping with the symptomatology of the other ... conditions." Estaban v. Brown, 6 Vet. App. 259 (1994). Limitation of extension, flexion, adduction, and rotation concern excursions of movements in different planes, and these limitations therefore constitute different bases for rating the hip. See 38 C.F.R. § 4.45. If these limitations are demonstrated, they must be rated separately to adequately compensate for functional loss associated with the service-connected hip disability. See 38 C.F.R. § 4.40 (separate ratings may be assigned for disability of the same joint where veteran has both limitation of flexion and limitation of extension of same leg). During the course of the appeal, the Veteran was afforded seven VA examinations in Augusts 2007, July 2012, November 2013, November 2016, April 2017, January 2020, and October 2020. During the August 2007 VA examination, the examiner noted the Veteran’s disability was diagnosed as snapping hip syndrome with bursitis of the right hip. The Veteran reported symptoms from the hip disability included weakness, as his strength isn't what it used to be; daily stiffness; swelling inflammation; occasional giving way; frequent lack of endurance; occasional locking and frequent fatigability. No redness or dislocation were noted. Veteran reported experiencing constant pain localized in the right hip. The pain was characterized as burning in nature, sticking, in nature and cramping in nature. The pain level was at 7out of 10. The pain could be exacerbated by physical activity and stress, but could be relieved by rest. Right hip is painful after sitting, walking, running and biking. The right hip becomes inflamed, pops and the Veteran can't run anymore and can't drive long distances without experiencing pain. However, the Veteran stated his condition did not cause incapacitation. The current treatment is physical therapy, chiropractor therapy, steroid injection, naproxen none had helped that much. Going to the chiropractor seemed to help temporarily; but reverted to previous condition. The Veteran’s functional impairment was that he couldn’t run and couldn't drive long distances. The Veteran's right hip flexion range of motion (ROM) was limited to 125 degrees, extension was limited to 30 degrees, abduction was limited to 45 degrees, adduction was limited to 25 degrees, external rotation was limited to 60 degrees, and internal rotation was limited to 40 degrees. Additionally, there is objective evidence of painful motion. The right hip joint function is not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. During the July 2012 VA examination, the examiner noted the Veteran’s disability was diagnosed as bursitis of the right hip. The Veteran reported flare-ups resulting in difficulty running without pain. The Veteran's right hip flexion ROM was limited to 90 degrees and extension was greater than 5 degrees. The Veteran’s abduction was not lost beyond 10 degrees and the adduction was not limited to a point where the Veteran cannot cross his legs. Additionally, there is objective evidence of painful motion. After observed repetitive use, there was no additional limitation of ROM. However, the examiner noted that the disability results in pain on movement, disturbance in locomotion, and interference with sitting, standing, and/or weight-bearing. There was also pain on palpation. The Veteran had normal muscle strength, and no muscle atrophy. There are no reports of ankylosis. The examiner noted that the disability results in functional impact that creates difficulty sitting, standing, walking, running, use of stairs, driving for extended period of time. During the November 2013 VA examination, the examiner noted the Veteran disability was again diagnosed as right hip bursitis. The Veteran reported that he has tried physical therapy and steroid injections, which did not help. The Veteran reported experiencing flare-ups that occur when he drives, resulting in a need to take a break after about an hour. The Veteran's right hip flexion ROM was limited to 30 degrees and extension was greater than 5 degrees, with no pain noted on examination. The Veteran’s abduction was not lost beyond 10 degrees and the adduction was not limited to a point where the Veteran cannot cross his legs. No additional limitation of ROM was noted after repetitive use testing. However, there was pain on palpation. The Veteran had normal muscle strength, and no muscle atrophy. There are no reports of ankylosis. The examiner noted that the disability results in functional impact that causes pain when sitting for more than 30 minutes. During the November 2016 VA examination, the examiner noted the Veteran’s disability was diagnosed as bursitis of the right hip, limitation of flexion and extension in the right hip. The Veteran reported that his disability has worsened, as it is more painful with longer episodes and it is difficult for him to sleep on the side and sit and stand for prolonged periods of time. The Veteran reported experiencing flare-ups, described as painful and lasting longer than before. Additionally, functional loss results in difficulty lying on the side, walking, running, sitting for extended periods. The Veteran's right hip flexion ROM was limited to 90 degrees, extension was limited to 20 degrees, abduction was limited to 35 degrees, adduction was limited to 15 degrees, external rotation was limited to 45 degrees, and internal rotation was limited to 30 degrees. Additionally, there is objective evidence of painful motion. After observed repetitive use, the right hip flexion ROM was reduced to 80 degrees, abduction was reduced to 30 degrees, adduction was reduced to 10 degrees, external rotation was reduced to 40 degrees, and internal rotation was reduced to 25 degrees. There was no additional limitation to ROM after repeated use over time. During flare-ups, the right hip flexion ROM was reduced to 80 degrees, extension was reduced to 15 degrees, abduction was reduced to 30 degrees, adduction was reduced to 10 degrees, external rotation was reduced to 40 degrees, and internal rotation was reduced to 20 degrees. There was active movement against some resistance, no muscle atrophy, and no ankylosis noted. The examiner noted that the disability results in functional impact that results in pain with sitting, standing, and walking. During the April 2017 VA examination, the examiner noted the Veteran’s disability was diagnosed as degenerative arthritis in the right hip, right hip strain, and right hip bursitis. The Veteran reported constant, low level, dull ache with intermittent sharp pains that worsen with activity. The Veteran is unable to sleep on the right side. During the physical examination, the examiner noted that there was tenderness to palpate the right greater trochanter area. No flare-ups or functional loss were reported in the examination. The Veteran had no limitation to his ROM of the right hip, but with pain on motion. There was no additional limitation to ROM after observed repetitive use. There was no additional limitation to ROM after repeated use over time noted, however the examiner concluded that they were unable to state there was significant additional limitation with mere speculation. While no flare-ups were reported, examiner stated he could not opine as to whether flare-ups limit functional ability. There was active movement against some resistance, no muscle atrophy, and no ankylosis noted. The examiner concluded there was no functional impact due to this disability. During the January 2020 VA examination, the examiner noted the Veteran’s disability was diagnosed as bursitis of the right hip, limitation of flexion and extension of the right hip. The Veteran reported that he favors his left side due to this disability, that he has tried different medications and steroids/injections into the right hip, which have not helped. The Veteran also reported experiencing flare-ups of the right hip which occur daily, are moderate, and last hours or days. The flare-ups are usually precipitated by standing, walking, sitting, and laying on the right side; however, they can be alleviated by rest, Naprosyn, Otezla, and ice. The Veteran noted that his disability causes functional loss, noting difficulty with walking, sitting, laying on his side, and standing. The Veteran's right hip flexion ROM was limited to 100 degrees, extension was limited to 20 degrees, abduction was limited to 40 degrees, adduction was limited to 25 degrees, external rotation was limited to 50 degrees, and internal rotation was limited to 40 degrees. Additionally, there is objective evidence of painful motion. There is no additional limitation to ROM after observed repetitive use. However, there is additional limitation to ROM during flare-ups, causing the flexion ROM of the right hip to be reduced to 90 degrees, extension to be reduced to 10 degrees, abduction to be reduced to 35 degrees, and the external rotation to be reduced to 45 degrees. The Veteran’s muscle strength was normal, no muscle atrophy, and no ankylosis was reported. The examiner noted that the disability results in functional impact causing a need to alternate sitting and standing, also avoid stairs and squatting. During the October 2020 VA examination, the examiner noted the Veteran’s disability is diagnosed as trochanteric pain syndrome of the right hip, bursitis of the right hip, and limitation of flexion and extension of the right hip. No flare-ups were reported. The disability results in a functional impairment, causing limitation in running. The Veteran had no limitation to his ROM of the right hip, but with pain on motion. There was objective evidence of tenderness or pain on palpation of the greater trochanter with a severity of 2/10. There was no additional impact to ROM after observed repetitive use. While there is no additional limitation to the Veteran’s ROM with repeated use over a period of time, the Veteran does have limited functional ability that manifests with pain. The Veteran had normal muscle strength, there was no muscle atrophy noted, no ankylosis was noted. The examiner noted that the disability results in functional impact causing limitations in running. The Veteran’s treatment records include many treatment notes and complaints of pain for his right hip bursitis, however they do not provide evaluations regarding limitations of the ROM for the Veteran’s right hip. A. Right hip bursitis, prior to December 3, 2013 The Veteran is seeking an evaluation in excess of 10 percent for his right hip bursitis prior to December 3, 2013. In May 2007, the Veteran submitted a claim for service connection. In December 2007, a rating decision was issued granting service connection and a rating of 10 percent as of May 18, 2007, the date the Veteran left active duty service. The Veteran appealed the rating aspect of the decision in December 2008. In August 2013, March 2017, December 2017, July 2019, and September 2020, the Board remanded this claim for additional development. For this period of time, the Veteran’s hip disability is rated under Diagnostic Code 5019 and is assigned a rating of 10 percent. Based on the above, the Board finds that a rating in excess of 10 percent for the Veteran's right hip bursitis is not warranted prior to December 3, 2013. A rating in excess of 10 percent for limitation of flexion of the hip is warranted when the Veteran’s right hip disability is manifested by a limitation of flexion limited to 30 degrees or less, a thigh a limitation of abduction beyond 10 degrees, or evidence of involvement of 2 or more major or minor joints, with occasional incapacitating exacerbations. Prior to December 3, 2013, there is no competent medical evidence to suggest the Veteran’s disability manifests with compensable limitation of motion. Therefore, the record on appeal fails to suggest that the Veteran’s right hip bursitis warrants an increased disability rating. The Board notes that prior Board remands requested medical opinions to determine all of the Veteran’s right hip pathologies during the entire period on appeal. However, as there is no evidence of compensable limitation of motion, there is no evidence on which the examiner could have based a retrospective opinion and no additional uncompensated limitation of motion that could provide a basis for a higher rating under DeLuca. Therefore, the Board finds that a rating in excess of 10 percent rating for his right hip bursitis prior to December 3, 3013 is not warranted. B. Right hip bursitis, as of December 3, 2013 The Veteran is seeking an evaluation in excess of 20 percent for his impaired flexion due to bursitis in the right hip for a compensable disability rating for his impaired extension due to bursitis in the right hip. During the course of the increased rating claim, and pursuant to a December 2013 VA examination, the Veteran’s disability ratings were reclassified as limitation of flexion with a 20 percent rating and limitation of extension with a noncompensable rating, as of the date of the December 2013 VA examination. In March 2017, December 2017, July 2019, and September 2020, the Board remanded this claim for additional development. For this period of time, the Veteran’s hip disabilities are rated under Diagnostic Code 5252 for limitation of flexion and Diagnostic Code 5251 for limitation of extension. As previously noted, under Diagnostic Code 5252, a 30 percent rating for limitation of flexion of the hip is warranted when the Veteran’s right hip disability is manifested by a flexion of the right hip limited to 20 degrees. However, during period on appeal, the Veteran’s right hip flexions reflect a ROM, at worst, limited to 30 degrees. There is no other competent medical evidence of record to suggest that the Veteran’s right hip flexion is limited to 20 degrees or less. Therefore, the Board finds that a 30 percent rating for his impaired flexion due to greater trochanter bursitis with peritrochanteric pain syndrome in the right hip is not warranted. As previously noted, under Diagnostic Code 5251, a compensable evaluation for limitation of extension of the hip is warranted when the Veteran’s hip disability is manifested by extension of the left hip limited to 5 degrees. However, during the period on appeal, the Veteran’s right hip extensions reflect a ROM, at worst, limited to 10 degrees during flare-ups. There is no other competent medical evidence on record to suggest that the Veteran’s right hip extension is limited to 5 degrees. The Board notes that prior Board remands requested medical opinions to determine all of the Veteran’s right hip pathologies during the entire period on appeal. However, as there is no evidence of compensable limitation of motion for extension, there is no basis for a retrospective medical opinion to have a different conclusion. Therefore, the Board finds that a compensable rating for his impaired extension due to right hip bursitis is not warranted. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. R. Montalvo, 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.