Citation Nr: 21004258 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 12-17 922A DATE: January 26, 2021 ORDER An initial disability rating in excess of 10 percent for service-connected residuals from a femoral stress fracture of the right lower extremity is denied. An initial disability rating in excess of 10 percent for service-connected residuals from a femoral stress fracture of the left lower extremity is denied. An initial compensable disability rating for service-connected left thigh limitation of extension is denied. An initial compensable disability rating for service-connected left thigh limitation of flexion is denied. An initial compensable disability rating for service-connected right thigh limitation of flexion is denied. An initial compensable disability rating for service-connected right thigh limitation of abduction is denied. FINDINGS OF FACT 1. The Veteran’s residuals of femoral stress fracture bilateral lower extremities are manifested, at worst, by limitation of abduction of the thigh such that the legs cannot be crossed but not abduction with motion lost beyond 10 degrees. 2. The Veteran’s left and right thigh limitation of flexion is not productive of flexion limited to 45 degrees. 3. The Veteran’s left thigh limitation of extension is not productive of extension limited to 5 degrees. 4. The Veteran’s right thigh limitation of abduction is not productive of limitation of abduction of the thigh such that the legs cannot be crossed or there is limitation of rotation such that it is not possible to toe out more than 15 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for service-connected residuals from a femoral stress fracture of the right lower extremity has not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5255-5251. 2. The criteria for an initial disability rating in excess of 10 percent for service-connected residuals from a femoral stress fracture of the left lower extremity has not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5255-5251. 3. The criteria for an initial compensable rating for left hip limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5252. 4. The criteria for an initial compensable rating for left hip limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5251. 5. The criteria for an initial compensable rating for right hip limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5252. 6. The criteria for an initial compensable rating for right hip limitation of abduction have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1990 to May 1991. At the outset, the Board of Veterans’ Appeals (Board) observes the Veteran’s claims have a lengthy procedural history which was discussed and summarized in its July 2020 decision. However, as related to the above captioned claims, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2017. A hearing transcript is of record. The claims were then remanded for additional development in August 2017. Following the Board’s remand, a December 2018 rating decision granted increased disability ratings of 10 percent for service-connected residuals of femoral stress fracture in the right and left lower extremities, effective January 20, 2010. Additionally, the rating decision granted service connection for left thigh limitation of extension, left thigh limitation of flexion, right thigh limitation of abduction and right thigh limitation of flexion, all assigned noncompensable ratings, effective January 20, 2010. See December 2018 rating decision. Most recently, the July 2020 Board decision included a remand for entitlement to disability ratings in excess of 10 percent for service-connected residuals from a femoral stress fracture of the right and left lower extremities as well as entitlement to compensable disability ratings for service-connected left thigh limitation of extension, left thigh limitation of flexion, right thigh limitation of flexion and right thigh limitation of abduction for the Regional Office (RO) to consider the examination results provided in June 2019. See July 2020 Board remand. Following a review of the June 2019 examination report, the RO issued a September 2020 Supplemental Statement of the Case (SSOC). As the requested development has been accomplished, the case has been returned for further appellate consideration. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (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 to the veteran. Gilbert, 1 Vet. App. at 53. Entitlement to increased disability ratings for service-connected residuals from a femoral stress fracture of the right and lower extremities as well as for the service-connected left and right thighs. The Veteran is currently rated as 10 percent disabling for each of his service-connected residuals from a femoral stress fracture of the bilateral lower extremities. Additionally, he has been assigned noncompensable disability ratings for left thigh limitation of extension and flexion as well as right thigh limitation of flexion and right thigh limitation of abduction, all of which have been found to be secondary to his service-connected residuals from a femoral stress fracture of the bilateral lower extremities. Disorders of the hips are rated under Diagnostic Codes 5250 through 5255 of 38 C.F.R. § 4.71a. Hip flexion is measured from 0 degrees to 125 degrees; abduction is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5251 (limitation of extension of the thigh), a 10 percent evaluation is assigned with extension limited to 5 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5252 (limitation of flexion of the thigh), a 10 percent evaluation is assigned with flexion limited to 45 degrees; a 20 percent evaluation is assigned with flexion limited to 30 degrees; a 30 percent evaluation is assigned with flexion limited to 20 degrees; and a 40 percent evaluation is assigned with flexion limited to 10 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5253, pertaining to impairment of the thigh, a 10 percent evaluation is warranted for limitation of abduction of the thigh such that the legs cannot be crossed or there is limitation of rotation such that it is not possible to toe out more than 15 degrees; a 20 percent rating requires limitation of abduction with motion lost beyond 10 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5255 contemplates impairment of the femur. Malunion of the femur warrants a 10 percent evaluation with slight knee or hip disability, a 20 percent evaluation with moderate knee or hip disability, and 30 percent evaluation with marked knee or hip disability. 38 C.F.R. § 4.71a. A 60 percent rating is warranted for fracture of the surgical neck with false joint or fracture of shaft or anatomical neck with nonunion, without loose motion, or weight bearing preserved with aid of brace. An 80 percent rating is warranted for fracture of shaft or anatomical neck with nonunion, with loose motion (spiral or oblique fractures). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). After reviewing all the relevant evidence in the claims file, the Board finds that the residuals from the Veteran’s femoral stress fractures of the bilateral lower extremities do not warrant evaluations in excess of 10 percent and that his limitation of flexion and extension of the left thigh and limitation of flexion and abduction of the right thigh do not warrant compensable evaluations for the entire period on appeal. Specifically, the relevant evidence of record shows that on May 2010 VA examination, the Veteran reported developing bilateral stress fractures of his femurs in service and that while incarcerated from 1995 to 2009, he had undergone x-rays which diagnosed stress fractures of the femurs. These records from his incarcerated period were not available for review. The Veteran reported pain and discomfort in the distal thighs over the quadriceps tendons and in his bilateral knees. He also reported weakness and some stiffness. He did not report swelling, heat, redness, drainage, instability, giving way, locking, or any additional flare-ups. He did not receive any treatment and it was noted that the claimed condition did not affect his activities of daily living or his work in construction, roofing, and concrete. On physical examination, there was no evidence of deformity, angulation, false motion, shortening, intraarticular involvement, malunion, nonunion, loose motion, or false joint. There was also no tenderness, drainage, edema, painful motion, weakness, redness, or heat. The Veteran’s gait was noted to be normal and there was no functional limitation on standing or walking. The Veteran did not report callosities, skin breakdown, unusual show wear pattern on either side because of the femurs, and there was no joint involvement. There was no shortening. The Veteran did not report any constitutional symptoms in association with the claimed condition, and he was diagnosed as having normal bilateral femurs. As part of the examination, May 2010 x-ray studies of the left and right femurs were also reviewed; they were all normal studies. See May 2010 VA examination report. Early records from Illinois SW Orthopedics, Ltd., dated December 2011 to November 2016, show continued treatment for the Veteran’s pain in his knees. At a November 2016 appointment, it was reported that he had sustained a recent injury to his left knee while at work. After examination, it was indicated the Veteran may have just sustained a sprain to his knee but it was possible he had also torn the medial meniscus. See Private treatment records, received September 2017. At the May 2017 Board hearing, the Veteran testified that his bilateral lower extremity femoral stress fracture pain had increased since the May 2010 VA examination. In particular, he testified he was experiencing chronic knee pain all day, every day. The pain would sometimes last a couple of hours or sometimes less. He testified he took Ibuprofen or over the counter Tylenol medication to help with the pain, in conjunction with an Ace bandage. He indicated he still worked but experienced nagging pain that he had to work through. He also reported experiencing swelling and problems with sensitivity to touch. See Hearing transcript. The Veteran was provided a VA hip and thigh conditions examination in October 2017; his diagnosis of bilateral femur stress fractures was confirmed. The Veteran reported constant pain in both legs from the groin down to the knees on both legs. Stairs were painful to go up and down and putting all his weight on one leg at a time was very painful. The worse pain occurred with cold weather. He also indicated his first step in the morning was painful. He took Tylenol and ibuprofen every day to assist with the pain. The Veteran did not report experiencing any flare-ups but did report experiencing functional loss. Specifically, he indicated bending down was not possible because it was painful and difficult to stand back up. Walking long distances was also not possible due to the pain in his legs and the need to stop frequently. He did report he was able to walk on the treadmill but when it was inclined the pain was severe. On examination, the Veteran’s right hip had 80 degrees of flexion and 10 degrees of extension with 30 degrees of abduction, 10 degrees of adduction, 20 degrees of external rotation and 10 degrees of internal rotation. Pain was noted on examination with flexion and caused functional loss. Localized tenderness and pain on palpation of the joint was found with the anterior thigh and there was evidence of pain with weight bearing. Adduction was limited such that the Veteran could not cross his legs. The Veteran’s left hip showed 80 degrees of flexion, 10 degrees of extension, 15 degrees of abduction, and 10 degrees of adduction, external rotation and internal rotation. Adduction was limited such that the Veteran could not cross his legs. There were no additional factors contributing to the disability found on examination. Moreover, the muscle strength testing was all normal and there was no evidence of muscle atrophy and no ankylosis. There was also no evidence of malunion or nonunion. The Veteran did not use assistive devices for ambulation assistance. Lastly, the Veteran did report his condition impacted his occupation in that he needed frequent breaks when walking around the concrete floor at his work. He indicated he had to lean against things because of the pain and he avoided bending down to lift things because of the leg pain he experienced when he stood up. See October 2017 VA examination report. A more recent VA examination was performed in June 2019, to evaluate the Veteran’s hip and thigh. Notably, the examiner stated at the outset that it was apparent the Veteran’s stress fractures immediately cephalad to the knees had been considered part of the thigh examination, since he was service-connected for residuals attributed to the “thigh” when in reality the residuals were related to knee function; therefore, he also included comments from a knee examination to adequately address the current nature of the Veteran’s disabilities. The June 2019 VA examiner found the Veteran did not have a current diagnosis associated with any residuals of a femoral stress fracture of the bilateral lower extremities. In fact, the examiner noted the Veteran did not have any hip conditions. The Veteran nevertheless described poorly localized right hip pain that was worsened by walking; this had begun four years ago and caused him to miss up to 2 day of work in the past 12 months. He also reported having bilateral knee pain that had caused him to miss 2 weeks of work in the past 12 months, with his right knee worse than the left and “hurting all day.” The Veteran indicated he had flare-ups which occurred when standing and walking all day at work. He also reported having functional loss in that he had to miss days of work, as described, due to his hip and knee. On physical examination, range of motion testing for the right hip was normal with pain with flexion noted on examination but not resulting in functional loss. There was no evidence of pain with weight bearing. There was, however, very slight objective evidence of localized tenderness or pain over the greater trochanter with no evidence of crepitus. Likewise, range of motion testing for the left hip was all normal with no pain noted on examination, no objective evidence of localized tenderness and no objective evidence of crepitus. The examiner noted the Veteran’s examination was not conducted during a flare-up of either hip and the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during a flare-up. The examiner did note the Veteran had additional contributing factors including bilateral broad-based gait with slight lurching side to side. Muscle strength testing showed diminished strength in the right hip. In particular, the right hip showed strength of 2/5 flexion, 4/5 extension and 4/5 abduction. The left hip had normal strength. However, the examiner indicated the Veteran showed evidence of poor effort and inconsistency concerning the examination with regard to hip strength and knee strength and range of motion. Poor effort was suspected regarding hip flexion strength. There was negative bilateral trendelberg. Additionally, there was evidence of muscle atrophy descripted as most likely due to the right knee and not the right hip. No ankylosis was noted. The examiner did find the Veteran had malunion or nonunion of the femur, flail hip joint or leg length discrepancy. Regarding additional pertinent physical findings, the examiner noted the Veteran’s limited ability to cross the right hip over the left due to limited flexion of the right knee and not any limitation of the hip joint. The left knee examination was normal, but the right knee examination showed flexion of 120 and active extension lacks 30 degrees with passive extension to zero. There was slight bilateral crepitus but no scars. Three centimeters of atrophy of the right thigh with 2 centimeters of atrophy in the right calf was noted with no joint swelling or effusion. No ligament laxity and normal patella tracking was found. Global tenderness about the entire left knee was noted with only lateral joint line tenderness in the right knee. January and June 2019 x-rays of both knees were reviewed and found to be negative. The Veteran regularly used a brace for normal mode of locomotion as well as bilateral knee sleeves for the past two months. While no evidence of pain when the joint was used in weight bearing and non-weight bearing situations was found, the examiner did note that there was broad-based gait with slight lurching side to side. Additionally, the Veteran had complaints of both knees but only the right hip. Overall, it was the examiner’s opinion that the Veteran’s femoral stress fractures were completely healed and that they caused no symptoms nor disability at the present despite the Veteran’s allegations to the contrary. The examiner acknowledged there was evidence of bilateral knee pain in 2011 and 2016 but noted that during those times the Veteran did not provide a history of stress fracture in supracondylar levels and x-rays were negative with the cause of the knee pain attributable to other reasons. The examiner emphasized he could not find any hip pathology whatsoever. The examiner further stated that while the Veteran did show limitation of motion and muscle atrophy of the right knee, he did not feel this was related to the service fractures. It was more likely that not that the right knee pain in 2011 or some intervening knee injury with onset of symptoms had occurred to cause the current findings. The examiner recommended that the Veteran be afforded an orthopedic clinic appointment with an MRI of the right knee to be considered if his current findings remained, but reiterated that whatever was found in the right knee would have no relationship to the 1991 femoral supracondylar stress fracture. See June 2019 VA examination report. After a full review of the clinical and lay evidence, the Board concludes that for the entire appeal period, a compensable initial rating for limitation of flexion and extension of the left hip, a compensable rating for limitation of abduction and flexion of the right hip, and ratings in excess of 10 percent for residuals of femoral stress fractures of the bilateral lower extremities are not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5252, 5255. For a higher (compensable) rating under Diagnostic Code 5251 for the left thigh, the evidence must indicate limitation of extension to 5 degrees. The most limitation of extension noted in the reports is 10 degrees. In fact, most recently, the Veteran’s range of motion testing showed normal extension of the left hip. Further, for a higher (compensable) rating under Diagnostic Code 5252, the evidence must indicate limitation of flexion to 45 degrees. The most limitation of flexion noted in the reports is to 80 degrees in both hips. Again, it is significant to note, the Veteran’s flexion was normal in both hips at the most recent examination. For a higher rating under Diagnostic Code 5253, abduction must be limited to less than 10 degrees. However, the evidence shows abduction beyond that level. A higher rating under Diagnostic Code 5255 has also been considered, but the evidence does not indicate malunion of the hip of moderate disability, or fracture of the surgical neck with false joint or fracture of shaft or anatomical neck with nonunion, without loose motion, or weight bearing preserved with aid of brace. Lastly, for a rating in excess of 10 percent for the residuals of the Veteran’s femoral stress fractures of the bilateral lower extremities, there is evidence of limitation of abduction of the thighs such that the legs cannot be crossed but there is no evidence that there has been limitation of abduction with motion lost beyond 10 degrees. Therefore, a rating of 20 percent is not warranted. In fact, as addressed above, the most recent VA examiner found that the Veteran’s femoral stress fractures were completely healed and caused no symptoms nor disability at the present despite the Veteran’s allegations to the contrary. The Board has considered the Veteran’s complaints, including pain. However, the record indicates that the Veteran’s claimed symptoms, to the extent that they limit his range of motion, are contemplated by the current evaluations for painful or limited motion and do not show that his bilateral hip motion has been otherwise limited to such an extent that higher initial ratings would be warranted. The evidence of record indicates that the hip disabilities are not productive of ankylosis, fracture, malunion, or nonunion of the hip joint, or a flail hip joint and are not productive of limitation of flexion to 45 degrees or limitation of abduction with motion lost beyond 10 degrees. For these reasons, the preponderance of the evidence weighs against a finding that the Veteran’s bilateral hip disabilities warrant higher evaluations in this case for the rating period on appeal. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5250-5255; DeLuca, 8 Vet. App. at 206-07. (Continued on the next page)   For all the above reasons, entitlement to higher initial disability evaluations for the Veteran’s bilateral hip disabilities is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.