Citation Nr: 21061610 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 12-19 741 DATE: October 4, 2021 ORDER From January 1, 2011 to January 20, 2021, entitlement to an initial rating in excess of 10 percent for tendonitis, left anterior hip with left sided snapping syndrome and impairment of thigh and painful motion is denied. From January 20, 2021, entitlement to a rating of 20 percent, but no higher, for tendonitis, left anterior hip with left sided snapping syndrome and impairment of thigh and painful motion is granted. From January 1, 2011 to January 20, 2021, entitlement to an initial compensable rating for tendonitis, left anterior hip with left sided snapping syndrome and limitation of flexion is denied. From January 20, 2021, entitlement to a 10 percent rating, but no higher, for tendonitis, left anterior hip with left sided snapping syndrome and limitation of flexion is granted. REMANDED Entitlement to service connection for a left-hand disability is remanded. FINDINGS OF FACT 1. From January 1, 2011 to January 20, 2021, the Veteran's tendonitis, left anterior hip with left sided snapping syndrome and impairment of thigh and painful motion is manifested by, at worst, painful motion. 2. From January 20, 2021, the Veteran's tendonitis, left anterior hip with left sided snapping syndrome and impairment of thigh and painful motion is manifested by, at worst, loss of abduction greater than 10 degrees. 3. From January 1, 2011 to January 20, 2021, the Veteran's tendonitis, left anterior hip with left sided snapping syndrome and limitation of flexion is manifested by, at worst, flexion limited to 50 degrees. 4. From January 20, 2021, the Veteran's tendonitis, left anterior hip with left sided snapping syndrome and limitation of flexion is manifested by, at worst, painful motion. CONCLUSIONS OF LAW 1. From January 1, 2011 to January 20, 2021, the criteria for an initial rating in excess of 10 percent for tendonitis, left anterior hip with left sided snapping syndrome and impairment of thigh and painful motion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253. 2. From January 20, 2021, the criteria for a 20 percent rating, but no higher, for tendonitis, left anterior hip with left sided snapping syndrome and impairment of thigh and painful motion have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253. 3. From January 1, 2011 to January 20, 2021, the criteria for an initial compensable rating for tendonitis, left anterior hip with left sided snapping syndrome and limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. 4. From January 20, 2021, the criteria for a 10 percent rating, but no higher, for tendonitis, left anterior hip with left sided snapping syndrome and limitation of flexion have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1990 to December 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2015, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In September 2020, the Board remanded the claim to request copies of the Veteran's SSA records and obtain new examinations for the disabilities on appeal. Following remand, a February 2021 rating decision by the RO granted service connection for residuals of sprain and Achilles' tendonitis, left ankle. As this constitutes a full grant of the benefit sought on appeal as to that issue, service connection for the left ankle disability is no longer before the Board. Increased Rating A disability rating is 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 military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as 'staged ratings.' Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In determining the adequacy of assigned disability ratings, consideration is also given to factors affecting functional loss. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Such factors include a lack of normal endurance and functional loss due to pain and pain on use, specifically limitation of motion due to pain on use, including that experienced during flare ups. 38 C.F.R. § 4.40. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 4243 (2011) (holding that pain alone does not constitute functional loss and is just one fact to be considered when evaluating functional impairment). That said, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The Board has reviewed the recent changes to rating codes for the musculoskeletal system that were effective in February 2021, but finds that are not more favorable than those in effective prior to that dates. See 85 Fed. Reg. 76,453 (Nov. 30, 2020). Entitlement to higher ratings for the left hip disabilities The Veteran contends that his left hip disabilities warrant higher ratings, effective from January 1, 2011. An October 2012 VA examination/progress notes noted the Veteran's tendonitis left hip with snapping syndrome, with current symptoms of constant left hip pain daily. He reported that "anything" will cause the pain, including sitting or standing. The pain was located at lateral hip and anterior joint. The Veteran reported that flareups impact the function of the hip and/or thigh. Initial ROM showed flexion ending at 50 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 10 degrees and adduction was not limited such that the Veteran cannot cross legs. Rotation was not limited such that the Veteran cannot toe-out more than 15 degrees. January 2017 VA examination noted the Veteran's complaint of aching left hip pain. He stated than pain is 4 out of 10 with increased activity and that he wakes up at night with left hip pain. He can ride a stationery bike without difficulty. He denied any hip surgery or injection. He had minimal pain with active and passive ROM. He did not report flare-ups or functional loss or impairment of the hip. Initial ROM was normal. There was no evidence of pain on weight bearing or objective evidence of localized tenderness or pain on palpation. Following repetitive use testing, there was no additional loss of function or range of motion after three repetitions. Pain, weakness, fatiguability and incoordination did not significantly limit functional ability with repeated use over a period of time. Following repetitive-use testing, flexion ended at 50 degrees. Post-test extension ended at 5 or greater degrees. Post-test abduction was not lost beyond 10 degrees. Post-test adduction was not limited such that the Veteran cannot cross his legs. Post-test rotation was not limited such that the Veteran cannot toe-out more than 15 degrees. Muscle strength testing was normal. There was no muscle atrophy or ankylosis. The Veteran did not have malunion or nonunion of femur, flail hip joint or leg length discrepancy. The Veteran did not have additional limitation in ROM of the hip and thigh following repetitive-use testing. The Veteran did not have functional loss/and or functional impairment of the hip and thigh. The Veteran had less movement than normal after repetitive use. There was localized tenderness or pain to palpation for joints/soft tissue. Muscle strength testing was normal. The Veteran's hip and/or thing condition impacted his ability to work in a warehouse. He was limited with sitting, standing, and walking for greater than 15 minutes will cause additional pain. It should be noted that the Veteran submitted a statement asserting that he indeed experienced functional limitations such as durational walking, standing, and standing activities. He stated that sitting also hurts when aggravated. He states that he experienced daily flareups. He contested the measurements, asserting that no goniometer was used. May 2018 VA examination showed that the Veteran reported flare ups of the right hip that can be described as increased pain, popping, swelling, and decreased strength. The flare ups of the left hip can be described as increased pain, popping, swelling, and decreased strength. He reported functional loss to include no running, prolonged standing or sitting. Initial ROM showed flexion ending at 105 degrees, extension ending at 30 degrees, abduction ending at 45 degrees, adduction ending at 25 degrees, external rotation ending at 50 degrees, and internal rotation ending at 35 degrees. Pain was noted on exam but did not result in /cause functional loss. All ROMs exhibited pain. There was objective evidence of localized tenderness or pain. There was objective evidence of crepitus. Following repetitive-use testing, there was no additional loss of function or range motion. Pain, weakness, fatiguability and incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength testing was normal. He did not have muscle atrophy. January 2021 VA examination showed initial left hip range of motion (ROM) was abnormal. Flexion ended at 95 degrees, extension ended at 30 degrees, Abduction ended at 35 degrees, adduction ended at 25 degrees, external rotation ended at 30 degrees. Internal rotation ended at 30 degrees. Adduction was not limited such that the Veteran cannot cross legs. Pain was noted on examination that causes functional loss on flexion, abduction and internal rotation. There was no objective evidence of localized tenderness or pain. Repetitive-use testing showed that that there was no additional loss or function after three repetitions. Flexion ended at 90 degrees, extension ended at 30 degrees, abduction ended at 30 degrees, and adduction ended at 20 degrees. External rotation ended at 30 degrees. Internal rotation ended at 25 degrees. Regarding repeated use over time, pain significantly limited functional ability with repeated use over time. Flexion ended at 85 degrees. Extension ended at 30 degrees. Abduction ended at 25 degrees. Adduction ended at 20 degrees. External rotation ended at 25 degrees. Internal rotation ended at 20 degrees. It was noted that the Veteran denied flareups. He did not have muscle atrophy. There was no ankylosis. There was no malunion or nonunion of femur, flail hip joint or leg length discrepancy. It was noted that tendonitis left anterior hip with left sided snapping syndrome impacts mobility and limits movement. Left hip showed objective evidence of pain on passive range of motion testing. There was no objective evidence of pain when the joint is used in non-weight bearing. 1. Entitlement to an initial rating in excess of 10 percent for tendonitis, left anterior hip with left sided snapping syndrome and impairment of thigh and painful motion. The Veteran contends that his tendonitis, left anterior hip with left sided snapping syndrome and impairment of thigh and painful motion (hereinafter, left hip other impairment) warrants a rating in excess of 10 percent. He is in receipt of a 10 percent rating, effective from January 1, 2011. The Veteran's left hip other impairment is evaluated under DC 5253. The Veteran's left hip other impairment is rated under Diagnostic Code (DC) 5253. 38 C.F.R. § 4.71a. Under DC 5253, a limitation of rotation of the affected leg, which cannot toe-out more than 15 degrees, warrants a 10 percent rating. A limitation of adduction such that legs cannot be crossed warrants a 10 percent rating. A limitation of abduction such that motion is lost beyond 10 degrees warrants the highest 20 percent rating. Normal range of motion of the hip is from 0 to 125 degrees of flexion, 0 to 30 degrees of extension, 0 to 45 degrees of abduction, 0 to 25 degrees of adduction, 0 to 60 degrees for external rotation, and 0 to 40 degrees for internal rotation. See 38 C.F.R. § 4.71a., Plate II. Based on a review of the evidence prior to January 20, 2021, the Board does not find that a rating in excess of 10 percent is warranted for the Veteran's left hip disability. Instead, his symptoms of painful motion are contemplated under his current 10 percent rating because his left hip does not otherwise indicate a limitation of motion that warrants a higher rating. Specifically, at no time prior to January 20, 2021 did the Veteran's left hip disability demonstrate limitation of rotation of the affected leg, which cannot toe-out more than 15 degrees. Additionally, at no time prior to January 20,2021, has it exhibited limitation of adduction such that legs cannot be crossed. Further, as required for the higher 20 percent rating, the Veteran's left hip did not show limitation of abduction such that motion is lost beyond 10 degrees. As such, a rating in excess of 10 percent for tendonitis, left anterior hip with left sided snapping syndrome and impairment of thigh with painful motion is not warranted prior to January 20, 2021. From January 20, 2021, however, the Board finds that a rating of 20 percent, but no higher, is warranted. The January 20, 2021 examination noted repetitive-use testing showing abduction ending at 30 degrees. It further noted that after repeated use over time, abduction ended at 25 degrees. Such degree of loss (10 degree loss of abduction) is more approximate with a higher 20 percent rating, which is the maximum award available. Accordingly, from January 20, 2021, a rating of 20 percent, but no higher is warranted for impairment of the left hip. The Board note that the left hip impairment disability was previously compensated for painful motion. However, as a greater benefit of 20 percent is now applicable based on limitation of abduction, the minimum compensable rating of 10 percent for painful motion may be assigned to another left hip disability, where applicable. 2. Entitlement to an initial compensable rating for tendonitis, left anterior hip with left sided snapping syndrome and limitation of flexion. The Veteran contends that his tendonitis, left anterior hip with left sided snapping syndrome and limitation of flexion (hereinafter, left hip limitation of flexion) warrants a compensable rating. Following remand, a February 2021 rating decision by the RO granted a separate rating for the Veteran's left hip, based on limitation of flexion, and assigned a noncompensable rating effective from January 20, 2021. The Veteran's left hip limitation of flexion is evaluated under DC 5252. The Veteran's left hip limitation of flexion is rated under DC 5252. 38 C.F.R. § 4.71a. Under DC 5252, a 10 percent rating is assigned for flexion limited to 45 degrees; 20 percent is assigned for flexion limited to 30 degrees; 30 percent is assigned for flexion limited to 20 degrees; and, 40 percent is assigned for flexion limited to 10 degrees. Normal flexion of the hip is from 0 to 125 degrees. 38 C.F.R. § 4.71a, Plate II. When limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by painful motion. Here, as the Veteran is already in receipt of at least a 10 percent evaluation based on painful motion of the left hip from January 1, 2011 to January 20, 2021 (based on abduction), an additional or separate compensable rating is not warranted for painful motion resulting from flexion, during that period. However, the above decision regarding the Veteran's impairment of hip shows a discontinuance of the minimum compensable rating for painful motion based on entitlement to a higher evaluation, from January 20, 2021. Therefore, his hip joint may once again be considered for an minimum compensable award based on painful motion. On review of the record, the Board finds that prior to January 20, 2021, the evidence weighs against a rating in excess of the currently assigned noncompensable rating. At no point during the appellate period has flexion been shown to be limited to 45 degrees. Indeed, there is limitation of flexion shown ending at 50 degrees on both the October 2012 progress notes and 2017 VA examination. However, as the requirement of flexion limited to 45 degrees is not indicated, a compensable rating is not warranted. From January 20, 2021, however, the evidence shows painful motion on flexion, which warrants a 10 percent rating. The Veteran's left hip impairment was previously awarded the minimum compensable rating of 10 percent for painful motion prior to January 20, 2021. However, since the left hip impairment is now compensated based on limited motion on abduction, the minimum compensable award for painful motion may be assigned to his left hip flexion disability. A higher rating of 20 percent is not warranted because limitation of flexion has not been otherwise shown to be so limited to 45 degrees or to 30 degrees, as required for a 10 percent or 20 percent rating on based on flexion. Accordingly, the Board concludes that a rating of 10 percent, but no higher, is warranted limitation of flexion of the hip, based on painful motion, from January 20, 2021. Other Diagnostic Codes for the Hip The Board has considered whether the Veteran is entitled to a higher disability rating under alternative diagnostic codes. However, the evidence does not show the Veteran suffers from symptoms better represented by another diagnostic code. Limitation of extension of the left hip is rated under DC 5251. 38 C.F.R. § 4.71a. Under DC 5251, a single 10 percent rating is assigned for extension limited to 5 degrees. Normal extension of the hip is from 0 to 30 degrees. 38 C.F.R. § 4.71a, Plate II. None of the VA examinations noted extension limited to 5 degrees for the right hip. Where the exact degree of motion was explicitly recorded, the Veteran never manifested extension below 25 degrees. Although the Veteran was noted to have functional loss associated with his right hip, the record does not indicate that his functional loss has reduced his extension to 5 degrees or less, which is required for a 10 percent rating. Thus, throughout the appeal period, a compensable rating under DC 5251 is not warranted. Based on symptoms manifested by the hip disabilities, the evidence does not reveal that a higher rating under any other diagnostic code is warranted. The Board acknowledges the Veteran's competent and credible reports of relevant observable symptoms, as set out in the VA treatment records and examinations. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, these lay statements are consistent with the assigned rating. To the extent that the Veteran believes that a higher rating is warranted, this belief is outweighed by the remaining evidence of record, as summarized above. REASONS FOR REMAND 3. Entitlement to service connection for a left-hand disability. The Veteran contends that his left-hand disability is related to service. The Board regrets the further delay but finds that the February VA medical opinion again did not adequately address whether the September 1999 in-service avulsion fracture of the third finger of the left hand has resulted in any residual impairment. Additionally, the VA examiner did not address the April 2015 medical report that shows left hand impairment during the appeal period, as requested by the Board's previous remand. Rather, the examiner based the opinion on a lack of diagnosis noted within the most recent January 2021 VA examination, without considering impairment shown elsewhere during the pendency of the Veteran's appeal. Moreover, the examiner did not address records from occupational therapy in September 2005 and failed to provide a rationale to support the conclusion. Accordingly, the opinion is inadequate, and a new opinion is needed to consider and address the above. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for an examination with a different clinician than he has seen before to provide an opinion on whether it is as likely as not (50/50 probability or greater) that any disabilities of the left hand and fingers are related to service. The examiner is asked to review the file and copy of this remand before the examination and to elicit from the Veteran a detailed history of the injuries to his left hand and his symptoms since then. The record shows an avulsion fracture of the left third finger during service in September 1999. In September 2005, he attended occupational therapy for the hands. He asserts that his symptoms have continued since service, as demonstrated in the April 2015 medical record showing left hand and finger disabilities. He reports persistent symptoms from separation until the present. All opinions must be accompanied by a detailed explanation to support the conclusion. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Wilson, 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.