Citation Nr: 21064690 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 19-07 506 DATE: October 21, 2021 ORDER Entitlement to a rating in excess of 10 percent for residuals of a left femoral neck stress fracture is denied. FINDING OF FACT For the entire appeal period, the residuals of the Veteran's left femoral neck stress fracture are manifested by painful motion, but not by limitation of extension to 5 degrees or less, limitation of flexion to 30 degrees or less, limitation of adduction with an inability to cross the legs, limitation of rotation with inability to toe-out more than 15 degrees, limitation of abduction of the thigh with motion lost beyond 10 degrees, flail hip joint, malunion of the femur, or fracture of the shaft or anatomical neck of the femur with loose motion and weightbearing preserved with aid of a brace, and no additional functional loss. CONCLUSION OF LAW The criteria for a rating greater than 10 percent for residuals of a left femoral neck stress fracture have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active-duty service in the U.S. Army from January 2007 to November 2012. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In April 2020, the Board denied the Veteran's increased rating claim for residuals of a left femoral neck stress fracture. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (CAVC or the Court), which granted a Joint Motion for Remand (JMR) in January 2021. Consistent with the terms of the JMR, the Board remanded the claim to the AOJ in June 2021 for VA examinations to assess the severity of the Veteran's condition. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, which is the evaluation of the same disability or the same manifestation of a disability under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flareups. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to a rating in excess of 10 percent for left femoral neck stress fracture residuals For the entire period on appeal, the Veteran has been assigned a 10 percent rating under Diagnostic Code 5252 for painful limitation of motion that his not compensable under the Diagnostic Codes governing limitation of motion of the hip and thigh. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). At the outset, the evidence shows no findings of ankylosis, flail hip joint, or impairment of the femur as required for the assignment of compensable evaluations under Diagnostic Codes 5250, 5254, and 5255. The Board will consider the remaining manifestations under Diagnostic Codes 5251, 5252 and 5253, for impairment of the hip manifested by, respectively, limitation of extension; flexion; and of abduction, adduction, and rotation. See 38 C.F.R. § 4.71a, Diagnostic Codes 5250 through 5255. Diagnostic Code 5251 addresses extension and assigns a maximum 10 percent rating for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. Diagnostic Code 5252 addresses flexion and assigns a 10 percent rating when thigh flexion is limited to 45 degrees. A 20 percent rating is assigned when flexion is limited to 30 degrees. A 30 percent rating is assigned when flexion is limited to 20 degrees. A 40 percent rating is assigned when flexion is limited to 10 degrees. 38 C.F.R. § 4.71 (a), Diagnostic Code 5252. Diagnostic Code 5253 addresses limitations on abduction and adduction of the hip. A 10 percent rating is warranted for limitation of adduction with the inability to cross legs. A 10 percent rating is also warranted for limitation of rotation with the inability to toe-out more than 15 degrees in the affected leg. A 20 percent rating is warranted for limitation of abduction of the thigh with motion lost beyond 10 degrees. 38 C.F.R. § 4.71 (a), Diagnostic Code 5253. Factual Background The Veteran was provided a VA examination in September 2015 to assess the severity of his left femur disability. The examiner provided a diagnosis of left femoral neck stress fracture residuals. The Veteran reported that he continues to complain of left hip and left knee pain that is worse with prolonged standing and increased activity. The Veteran did not report having flare ups. Initial range of motion testing of the left hip was normal and there was no pain noted on exam. The examiner noted that Veteran did not exhibit pain with weightbearing, localized tenderness, or pain on palpation of the joint or associated soft tissue, but there was objective evidence of crepitus. The examiner did not comment on whether range of motion was performed on active or passive motion and in weightbearing or non-weightbearing status. With repetitive use testing, the Veteran did not exhibit functional loss after performing three repetitions. The examiner noted that the Veteran was being examined immediately after repeated use over time and concluded that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The examiner further concluded that there were no additional factors that contributed to disability and the remainder of the examination was essentially normal. The Veteran maintained full muscle strength in the left hip and did not exhibit muscle atrophy. There was no evidence of ankylosis, malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. The examiner also noted that the Veteran did not use an assistive device and noted that there was no imaging of the left femur available to review. Finally, the examiner concluded that the Veteran's femur impairment did not impact his ability to perform any type of occupational task, such as standing, walking, lifting, or sitting. The Veteran was provided another VA examination to assess the severity of his left femur disability in August 2021. The examiner provided a diagnosis of left femoral neck stress fracture residuals. The Veteran reported that sleeping has become impossible due to pain in his hip and back. He further reported that his left hip is painful and stiff when he wakes up and he has difficulty moving it. He elaborated that it takes several hours for him to get the pain to a tolerable level in order to be able to work. He reported that the pain is worse with prolonged standing and walking. He also reported that it is very difficult for him to pivot or shift the leg and to do activities, such as hiking, jumping, kneeling, or squatting, on uneven, unlevel services. Additionally, he reported that he feels unsteady going downstairs and feels as though he has no control over his balance. He elaborated that this makes it difficult for him to engage in physical fitness, such as going to the gym or playing basketball, baseball, and soccer. Upon initial range of motion testing, the Veteran exhibited abnormal motion in the left hip with flexion to 115 degrees, extension to 25 degrees, abduction to 35 degrees, adduction to 20 degrees, external rotation to 55 degrees and internal rotation to 35 degrees on both passive and active motion. Pain was noted with all motion and with weightbearing, non-weightbearing, active motion, passive motion, and rest/non-movement. The Veteran exhibited trochanteric tenderness, but not crepitus or muscle atrophy. With repetitive use testing, the Veteran was able to perform three repetitions. The examiner noted that the Veteran was being evaluated immediately after repeated use over time and concluded that pain, fatigability, and lack of endurance cause additional functional loss. However, the examiner provided the same range of motion estimates as the initial range of motion testing. With respect to flare ups, the Veteran reported that prolonged laying, sitting, standing, walking, jogging, running, jumping, hiking, kneeling, squatting, pivoting, and shifting trigger them and cause functional loss. The examiner noted that the Veteran was not being evaluated during a flare up, but he noted that flare ups would cause additional functional loss due to pain, fatigability, and lack of endurance. The examiner estimated this loss in range of motion as flexion to 105 degrees, extension to 20 degrees, abduction to 30 degrees, adduction to 15 degrees, external rotation to 45 degrees, and internal rotation to 25 degrees. The examiner further noted that interference with sitting, interference with standing, and disturbance of locomotion are additional factors contributing to the Veteran's femur disability. The examiner noted that there is no evidence of ankylosis, no malunion or nonunion of femur, flail hip joint, or leg length discrepancy. The examiner also noted that the Veteran does not have limitation in adduction with passive motion, active motion, flare ups, or repeated use that prevents him from crossing his legs. The examiner further noted that there is no history of surgery, need to use an assistive device, or current imaging in connection with the Veteran's femur disability. However, the examiner did conclude that the Veteran's femur disability impacts his ability to perform occupational tasks, causing difficulty with prolonged laying, sitting, standing, walking, jogging, hiking, loads greater than 50 pounds. Ultimately, the examiner concluded that the Veteran could perform sedentary, office or light manual work without restriction. Analysis Based on the foregoing, the Board finds that a rating in excess of 10 percent is not warranted. The Veteran did not exhibit any limitation of motion during the September 2015 VA examination. Additionally, the Veteran did not report having flare ups and the examiner found no additional functional loss with repeated use over time. Limited motion was documented during the August 2021 VA examiner on initial range of motion and with estimated loss during flare ups. However, even during flare ups the Veteran does not have limitation of extension to five degrees or less, limitation of extension to 30 degrees or less, limitation of adduction preventing the ability to cross his legs, or limitation of rotation preventing him from being able to toe-out more than 15 degrees. Accordingly, the Veteran is not entitled to a higher rating or separate rating under Diagnostic Codes 5251, 5252, or 5253. Additionally, as the evidence of record fails to demonstrate ankylosis, a flail hip joint, or findings of impairment of the femur as required for the assignment of compensable evaluations, the Veteran is not entitled to separate ratings under Diagnostic Codes 5250, 5254, and 5255. With regard to additional compensation for functional loss, the Veteran's functional loss consists of pain and lack of endurance resulting in limitation of motion with prolonged use, which increases during flare-ups. The Board notes that this functional loss does not result in compensable limitation of motion based on the evidence of record, and is adequately compensated for in the assigned 10 percent rating under § 4.59. Accordingly, there is no additional compensation for functional loss warranted at any time during the appeal period. 38 C.F.R. §§ 4.40, 4.45, 4.59. In sum, the Board finds that, a rating in excess of 10 percent for residuals of a left femoral neck stress fracture is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.