Citation Nr: 21065727 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-15 915 DATE: October 27, 2021 ORDER A 10 percent rating for limitation of adduction of the right hip is granted. A rating in excess of 10 percent for right hip bursitis rated as limitation of extension is denied. A compensable rating for limitation of flexion of the right hip is denied. FINDING OF FACT The right hip disability results in intermittent inability to cross the legs but does not result in limitation of extension to at most five degrees, limitation of flexion to fewer than 105 degrees, limitation of rotation resulting in inability to toe out more than 15 degrees, abduction lost beyond 10 degrees, or malunion. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating for limitation of adduction have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5253. 2. The criteria for a compensable rating for limitation of flexion of the right hip have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5252. 3. The criteria for a rating in excess of 10 percent for limitation of extension of the left hip have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5251. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 2010 to August 2011. This matter was previously before the Board in February 2019, when the claims for increased rating and a claim for service connection for a right knee disorder were remanded for additional development. In a May 2021 rating decision, service connection was granted for a right knee disability; as such, that appeal is satisfied. VA treatment records were associated with the record in October 2021, after the most recent adjudication of the matter in May 2021. The additional evidence is not pertinent to the claim adjudicated herein (any relevant information is cumulative). Thus, there is no need to remand for consideration in the first instance Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, regulations require that where there is a question as to which of two evaluations is to 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. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The recent amendments did not alter the rating criteria for the hip/thigh except for the portion of Diagnostic Code 5255 relevant to malunion of the femur. The record does not suggest that the Veteran has malunion of the femur; thus, the amendment is not applicable. For limitation of extension of the thigh, where extension is limited to 5 degrees, a maximum 10 percent evaluation is assigned. 38 C.F.R. § 4.71a Diagnostic Code 5251. For limitation of flexion of the thigh, where flexion is limited to 45 degrees, a 10 percent evaluation is assigned; where flexion is limited to 30 degrees, a 20 percent evaluation is assigned; where flexion is limited to 20 degrees, a 30 percent evaluation is assigned; and where flexion is limited to 10 degrees, a 40 percent evaluation is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5252. For impairment of the thigh, a 10 percent rating is warranted for limitation of rotation resulting in inability to toe out more than 15 degrees or limitation of adduction resulting in ability to cross legs. A 20 percent rating is warranted for abduction lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. 38 C.F.R. § 4.59 provides for a minimum 10 percent rating for painful, unstable, or malaligned joints, including for residuals of injuries in non-arthritis contexts. Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). Moreover, with respect to all service-connected joint disorders, evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) (holding that, to adequately portray the functional loss of musculoskeletal disabilities, a medical examination must "express an opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time"). However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45; Johnson v. Brown, 9 Vet. App. 7 (1996). A May 2012 VA examination record reveals the Veteran's history of right hip pain. He reported flares of increased pain with increased activity. Range of motion testing revealed flexion to 115 degrees with pain from 115 degrees and extension to greater than 5 degrees with pain from the end point. Abduction was not lost beyond 10 degrees. Adduction was limited such that the Veteran could not cross legs. Rotation was not limited such that the Veteran could not toe out more than 15 degrees. There was no change in range of motion after repetition. Motor strength was full, and there was no ankylosis. There was not malunion, nonunion, or flail hip joint. The examiner reported that the Veteran's occupational functioning was not affected by his hip condition at the moment, though he had some problems when doing inspection. An August 2013 VA examination record reveals the Veteran's history of daily right hip pain, stiffness, and fatigue. He reported use of over-the-counter anti-inflammatories as needed. He reported flares with increased physical activity. Range of motion testing revealed flexion to 105 degrees with pain from 95 degrees and extension to greater than 5 degrees. Adduction was not limited such that the Veteran could not cross legs. Rotation was not limited such that the Veteran could not toe out more than 15 degrees. Abduction was not lost beyond 10 degrees. There was no change in range of motion after repetition. There was weakened movement. There was no ankylosis or additional condition. The examiner reported that the Veteran's right hip condition would limit his ability to perform repetitive climbing and squatting or prolonged walking. A February 2017 VA examination record reveals the Veteran's history of daily pain, increased with cold weather or increased right leg turning. He reported use of ibuprofen as needed. He reported flares two to three times per month. He did not report functional impairment of the joint. Range of motion testing revealed flexion to 110 degrees, extension to 25 degrees, abduction to 45 degrees, adduction to 25 degrees, external rotation to 55 degrees, and internal rotation to 40 degrees. Adduction was not so limited so that the Veteran could not cross legs. There was no pain with motion on exam. There was no evidence of pain with weight-bearing. There was no change in range of motion after repetition. The examiner was not able to state whether repeated use over time or flares would further limit functional ability. Motor strength was full, and there was no ankylosis. There was not malunion, nonunion, or fail joint. An April 2021 VA examination record reveals the Veteran's history that his right hip condition had stayed the same since the initial injury. He denied flares. He reported that the right hip disability limited running and climbing. Range of motion testing revealed 115 degrees flexion, 25 degrees extension, 35 degrees abduction, 25 degrees adduction, 60 degrees external rotation, and 40 degrees internal rotation. There was pain with extension, flexion, and abduction. Adduction did not prevent the Veteran from crossing his legs. Passive range of motion was the same as active range of motion. There was pain with active motion, but it did not result in functional loss. The examiner reported that there was no change in range of motion after repetition but also noted that adduction was limited to as to prevent the crossing of legs after repetition. The examiner estimated that repeated use over time would further limit range of motion to 110 degrees flexion, 20 degrees extension, 25 degrees abduction, 25 degrees adduction, 60 degrees external rotation, and 40 degrees internal rotation but would not result in inability to cross legs. The examiner reported that flares would not significantly limit functional ability. There was no atrophy or ankylosis. After consideration of the record, the Board finds a separate 10 percent rating is warranted under Diagnostic Code 5253 based on the intermittent findings of inability to cross the legs due to limitation of adduction. The Board finds Diagnostic Code 5253 is not otherwise applicable: the record includes consistently negative findings as to loss of abduction beyond 10 degrees or limitation of rotation resulting in inability to toe out more than 15 degrees. The Board further finds a higher rating is not warranted for limitation of extension or flexion: range of motion testing shows extension to greater than 5 degrees and flexion to at least 105 degrees, and VA examiners have determined that flares and repeated use over time would not result in limitation of extension or flexion to fewer than 105 degrees. There is no indication, including history, that the range of motion findings or estimates are inadequate or were affected by the use of medication. In making this determination, the Board notes that the Veteran has reported only "occasional" use of medication for pain and there is no indication that medication was in effect during clinical testing. The Board notes that a Veteran may be entitled to a higher disability evaluation for a musculoskeletal disability than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes additional functional loss, such as the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance, including as due to pain. 38 C.F.R. § 4.40 (2020); see Lyles v. Shulkin, 29 Vet. App. 107, 117 (2017). A higher disability evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination. 38 C.F.R. § 4.45 (2020). However, the veteran's functional loss must result in limitation of motion sufficient to satisfy the next disability rating allowable for that particular disorder to be entitled to a higher disability rating under §§ 4.40 and 4.45. See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016). The Board notes that the VA examination records prior to April 2021 do not specify passive range of motion and the records do not specify range of motion in and without weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Board finds no prejudice results from any failure to test passive motion or in non-weight bearing. The fundamental issue for Correia is that VA examinations perform adequate joint testing for pain. Range of motion testing performed for the hip requires standing testing, which is considered to be testing on weight bearing because the Veteran must support the weight of his body while undergoing such testing. Generally, active range of motion testing produces more restrictive results than passive range of motion testing, in that passive range of motion testing requires the physician to force the joint through its motions. Similarly, testing on weight bearing would generally produce more restrictive results than testing done without weight bearing. Therefore, there is no prejudice to the Veteran in relying on the VA examinations that involved active range of motion testing or weight-bearing for the hip because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating. The Board further notes that the 2017 VA examiner was unable to state whether the Veteran would have additional functional loss due to repeated use over time. The April 2021 examiner was able to make that determination, however, and the Board notes that there is no evidence that the range of motion findings in the 2017 VA examination record are otherwise inadequate for rating purposes. Thus, the Board finds the 2017 VA examination record maintains some probative value, even if it does not address repeated use over time or flares. (Continued on the next page) The Board has considered whether a higher or separate rating is warranted under alternate diagnostic codes (i.e. those unrelated to motion) but finds none is applicable. Notably, the record indicates that the Veteran works and there is no indication including history that the work is not substantially gainful or in a protected environment. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Snyder, 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.