Citation Nr: 21064096 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 02-06 729 DATE: October 19, 2021 ORDER An increased disability rating in excess of 10 percent for degenerative joint disease in the right hip (right hip disability) is denied. An increased disability rating in excess of 10 percent for right lower extremity sciatic nerve paralysis is denied. An increased disability rating in excess of 10 percent for left lower extremity sciatic nerve paralysis is denied. FINDINGS OF FACT 1. For the entire rating period from April 24, 2015, the right hip disability has manifested in noncompensable limitation of right thigh flexion with painful motion that does not more nearly approximate right thigh flexion limited to 30 degrees or less, limitation of extension to 5 degrees, impairment of the right thigh in the form of inability to toe-out more than 15 degrees (limitation of rotation), inability to cross legs (limitation of adduction), motion lost beyond 10 degrees of abduction, ankylosis, impairment of the femur, or flail hip joint. 2. For the entire rating period on appeal from April 24, 2015, the right lower extremity sciatic nerve paralysis has not manifested in moderate incomplete paralysis of the sciatic nerve. 3. For the entire rating period on appeal from April 24, 2015, the left lower extremity sciatic nerve paralysis has not manifested in moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. For the entire rating period on appeal from April 24, 2015, the criteria for an increased disability rating in excess of 10 percent for the right hip disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5252. 2. For the entire rating period on appeal from April 24, 2015, the criteria for an increased disability rating in excess of 10 percent for right lower extremity sciatic nerve paralysis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 3. For the entire rating period on appeal from April 24, 2015, the criteria for an increased disability rating in excess of 10 percent for left lower extremity sciatic nerve paralysis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from March 1980 to September 2000. The issues of an increased rating for the right hip disability, right lower extremity sciatic nerve paralysis, and left lower extremity sciatic nerve paralysis were previously before the Board in March 2021, at which time the Board remanded the matters to the Regional Office (RO) for further development. These matters have now been returned to the Board and the Board finds that the March 2021 remand directives have been substantially complied with. Board hearings were held in August 2012 and July 2020, the transcripts for which are associated with the claims file. Disability Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. 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. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. 1. Rating the right hip disability For the entire rating period on appeal from April 24, 2015, the Veteran is in receipt of a 10 percent disability rating for limitation of right hip flexion under Diagnostic Code 5003-5252. 38 C.F.R. § 4.71a. Diagnostic Code 5003 provides for a 10 percent rating for a major joint (includes the hip) where there is pain with noncompensable limitation of motion. 38 C.F.R. § 4.71a. The appropriate Diagnostic Codes for rating compensable limitation of motion of the hip and thigh are Diagnostic Codes 5251 through 5253 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 rating is assigned with extension limited to 5 degrees. Under Diagnostic Code 5252 (limitation of flexion of the thigh), a 10 percent rating is assigned with flexion limited to 45 degrees; a 20 percent rating is assigned with flexion limited to 30 degrees; a 30 percent rating is assigned with flexion limited to 20 degrees; and a 40 percent rating is assigned with flexion limited to 10 degrees. Under Diagnostic Code 5253, pertaining to impairment of the thigh, a 10 percent rating is warranted for limitation of adduction 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. Diagnostic Code 5250 contemplates ankylosis of the hip. Favorable ankylosis in flexion at an angle between 20 degrees and 40 degrees, and slight adduction or abduction warrants a 60 percent rating; intermediate ankylosis warrants a 70 percent rating; and unfavorable ankylosis, which contemplates extremely unfavorable ankylosis, the foot not reaching ground, crutches necessitated, warrants a 90 percent rating. Diagnostic Code 5254 provides an 80 percent disability rating where there is a flail joint of the hip. Diagnostic Code 5255 contemplates impairment of the femur. Malunion of the femur warrants a 10 percent rating with slight knee or hip disability, a 20 percent rating with moderate knee or hip disability, and 30 percent rating with marked knee or hip disability. Effective February 7, 2021, VA revised the portion of the Schedule for Rating Disabilities that addresses the musculoskeletal system. The amendments divided Diagnostic Code 5255 into two subsections, fracture of shaft or anatomical neck of the femur and malunion of the femur, each with its own criteria. A 60 percent rating is assigned for fracture of surgical neck of the femur, with false joint, or with nonunion of the femur, without loose motion and weightbearing preserved with aid of a brace. An 80 percent rating is assigned for nonunion of the femur, with loose motion (spiral or oblique fracture). For malunion of the femur, the revised rating criteria direct evaluation under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5250-5254 for the hip, whichever results in the highest evaluation. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code 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 code, a rating of 10 percent is for application for each such major joint or group affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a. Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 per cent 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-rays findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. After a review of all the evidence of record, the Board finds that, for the entire rating period from April 24, 2015, the right hip disability has manifested in noncompensable limitation of right thigh flexion with painful motion that does not more nearly approximate right thigh flexion limited to 30 degrees or less, limitation of extension to 5 degrees, impairment of the right thigh in the form of inability to toe-out more than 15 degrees (limitation of rotation), inability to cross legs (limitation of adduction), motion lost beyond 10 degrees of abduction, ankylosis, impairment of the femur, or flail hip joint. Accordingly, the Board finds that for the entire rating period on appeal from April 24, 2015, the criteria for an increased disability rating in excess of 10 percent for the right hip disability have not been met. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5252. Throughout the entire rating period on appeal from April 24, 2015, the evidence of record notes negative findings for abduction lost beyond 10 degrees, limited adduction that prevents crossing the legs, rotation that limits toe-out more than 15 degrees, ankylosis, impairment of the femur, or a flail hip joint. See September 2015 VA examination report; May 2021 VA examination report. Additionally, throughout the rating period from April 24, 2015, right hip flexion was measured, at worst, to 115 degrees, and extension was measured, at worst to 20 degrees, including any additional loss of motion during episodes of flare ups or following repetitive use, which does not more nearly approximate limitation to 30 degrees of flexion as needed for an increased 20 percent rating under Diagnostic Code 5252. See May 2021 VA examination report. Therefore, an increased disability rating in excess of 10 percent is not warranted under Diagnostic Code 5252 for the right hip disability for the entire rating period from April 24, 2015. 38 C.F.R. § 4.71a. Additionally, separate disability ratings of 10 percent are also not warranted under Diagnostic Codes 5251 or 5253 for limitation of extension or impairment of the right thigh. The Board has considered additional impairment to the right hip/thigh on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59, but finds that such pain that has restricted overall motion does not cause limitation of motion to warrant a higher rating. See also DeLuca. The Veteran has reported right hip and thigh pain and difficulty with walking and standing for long periods of time; however, as noted above, even taking into account additional functional limitation due to pain, the VA examination reports and VA treatment records indicate ranges of motion that do not more nearly approximate the 10 percent criteria for separate ratings for limitation of extension and impairment of the right thigh. The Board has also considered whether separate disability ratings are warranted for any other right hip/thigh disability. As discussed above, the evidence of record does not reflect that the right hip/thigh is ankylosed, or has developed into an impaired femur or a flail hip joint; thus, separate disability ratings or higher increased disability ratings are not warranted under Diagnostic Codes 5250, 5254, or 5255. 38 C.F.R. § 4.71a. 2. Rating right lower extremity sciatic nerve paralysis 3. Rating left lower extremity sciatic nerve paralysis For the entire rating period on appeal from April 24, 2015, the Veteran is in receipt of 10 percent disability ratings for right and left lower extremity sciatic nerve paralysis under Diagnostic Code 8520. 38 C.F.R. § 4.124a. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124(a). Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding assignment of a disability rating. 38 U.S.C. § 7104; 38 C.F.R. § § 4.2, 4.6. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. After review of the lay and medical evidence of record, the Board finds the weight of the evidence is against finding that the right and left lower extremity sciatic nerve paralysis more nearly approximates moderate incomplete paralysis of the sciatic nerves so as to warrant an increased 20 percent rating at any time during the rating period from April 24, 2015. For the rating period from April 24, 2015, the right and left lower extremity sciatic nerve paralysis has been manifested by symptoms more nearly approximating mild incomplete paralysis of the sciatic nerve in the right and left lower extremities. An August 2015 VA treatment record reflects the Veteran reported previous symptoms of tingling and numbness in the left lower extremity had resolved. The VA provider indicated that the left lower extremity symptoms could have been induced by medication. The Veteran underwent a VA examination in September 2015, the examination report for which reflects the Veteran complained of intermittent bilateral lower extremity numbness and tingling, which was worsened by prolonged sitting and standing. The VA examiner noted negative findings for any symptoms attributable to any peripheral nerve conditions and noted full muscle strength, normal reflexes, and normal sensation in both the right and left lower extremities. The VA examiner assessed that no nerve groups were affected by the reported symptoms. At a VA examination in May 2021, the Veteran reported increased pain since the last VA examination and pain in the right and left lower extremities with prolonged sitting and standing. The VA examiner assessed the right and left lower extremity sciatic nerve paralysis had manifested in symptoms of moderate intermittent pain, mild paresthesias/dysesthesias, mild numbness involving the sciatic nerve, and an antalgic gait. Muscle strength and reflexes were normal in all planes tested in the right and left lower extremities, but the VA examiner noted decreased sensation in the right and left lower legs, ankles, feet, and toes. The VA examiner assessed mild incomplete paralysis of the sciatic nerve in the right and left lower extremities. Other VA treatment records revealed the Veteran had a normal gait and good strength in the right and left lower extremities. See May 2017 VA treatment record; April 2018 VA treatment record; June 2019 VA treatment record. Based on the foregoing, the Board finds that the weight of the lay and medical evidence of record demonstrates that the Veteran's right and left lower extremity sciatic nerve paralysis has not more nearly approximated the criteria for a 20 percent rating under Diagnostic Code 8520 for symptoms of moderate incomplete paralysis of the sciatic nerve for any part of the rating period from April 24, 2015; therefore, increased disability ratings in excess of 10 percent are not warranted under Diagnostic Code 8520 for the right or left lower extremity sciatic nerve paralysis. 38 C.F.R. §§ 4.3, 4.7. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.