Citation Nr: 21066115 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 14-20 173A DATE: October 28, 2021 ORDER Prior to July 14, 2020, a rating greater than 10 percent for right hip strain with degenerative arthritis, thigh impairment of criteria under DC 5010-5251 ("right thigh impairment"), is denied, including on an extraschedular basis. After July 14, 2020, a rating greater than 20 percent for right thigh impairment under DC 5010-5253 is denied, including on an extraschedular basis. An initial rating greater than 10 percent for right hip strain with degenerative arthritis, limitation of extension criteria under DC 5010-5251 ("right hip limitation of extension") is denied, including on an extraschedular basis. An initial rating greater than 10 percent for right hip strain with degenerative arthritis, limitation of flexion criteria under 5010-5252 ("right hip limitation of flexion") is denied. FINDINGS OF FACT 1. Prior to July 14, 2020, the Veteran is in receipt of the maximum schedular rating for right thigh impairment; this disability was not productive of an exceptional or unusual disability picture or frequent periods of hospitalization. 2. After July 14, 2020, the Veteran is in receipt of the maximum schedular rating for right thigh impairment; this disability was not productive of an exceptional or unusual disability picture or frequent periods of hospitalization. 3. Throughout the entire period on appeal, the Veteran is in receipt of the maximum schedular rating for right hip limitation of extension; this disability was not productive of an exceptional or unusual disability picture or frequent periods of hospitalization. 4. Throughout the entire period on appeal, the Veteran's right hip limitation of flexion manifested by subjective complaints of pain and occasional lack of endurance; there are no objective test results showing flexion limited to 30 degrees or a disability picture commensurate with such. CONCLUSIONS OF LAW 1. Prior to July 14, 2020, the criteria for a rating greater than 10 percent for right hip strain with degenerative arthritis, thigh impairment of criteria under DC 5010-5251, on an extraschedular basis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.59, 4.71a, DC 5010-5251. 2. After July 14, 2020, the criteria for a rating greater than 20 percent for right hip strain with degenerative arthritis, thigh impairment of criteria under DC 5010-5253, on an extraschedular basis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.59, 4.71a, DC 5010-5253. 3. The criteria for an initial rating greater than 10 percent for right hip strain with degenerative arthritis, limitation of extension criteria under DC 5010-5251, on an extraschedular basis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.59, 4.71a, DC 5010-5251. 4. The criteria for an initial rating greater than 10 percent for right hip strain with degenerative arthritis, limitation of flexion criteria under DC 5010-5252 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.59, 4.71a, DC 5010-5252. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1987 to October 1993, including foreign service. For his meritorious service, the Veteran was awarded (among other decorations) the Army Achievement Medal. The Veteran testified during an April 2019 videoconference hearing. A transcript of this proceeding has been associated with the record. Most recently, these matters were remanded by the Board in July 2021 for a Supplemental Statement of the Case (SSOC), which was provided later that same month. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds substantial compliance with its remand instructions. Historically, the Veteran appealed the award of an initial noncompensable rating for right hip strain under DC 5252. See February 2011 rating decision. During the pendency of this appeal, the Veteran's disability was recharacterized as right thigh impairment and awarded a 10 percent rating from May 5, 2009, to July 14, 2020, under DC 5010-5251, and 20 percent rating thereafter under DC 5010-5253. He was also awarded separate 10 percent initial ratings, effective July 14, 2020, for right hip limitation of extension under 5010-5251 and right hip limitation of flexion under 5010-5252. See July 2021 rating codesheet. Thus, the matters on appeal have been expanded and recharacterized as set forth herein. Increased Ratings The Veteran is pursuing higher ratings for his right hip disabilities, as set forth above. Disability ratings are determined by the applications of the VA's Schedule for Rating Disabilities. 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 service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. As in this case, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. The second diagnostic code provides further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Thus, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated by analogy. Additionally, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select DCs "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal (as in this case), the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's appeals 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. In reviewing these appeals, it is noted that normal ranges of motion of the hip include flexion from 0 degrees to 125 degrees and abduction from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Prior to July 14, 2020 Prior to July 14, 2020, the Veteran is in receipt of a 10 percent rating for right thigh impairment under DC 5010-5251. Under both the old and new regulations, this is the maximum schedular evaluation under DC 5251. Thus, the Veteran is currently in receipt of the maximum award possible per the applicable rating criteria, and his appeal may only be granted if entitlement to a higher rating is established on an extraschedular basis. The evidence does not support such a finding in this case. Rather, the collective evidence establishes that the full scope of the Veteran's reported symptomatologynamely, chronic pain and limited extensionis contemplated by the applicable rating criteria. Moreover, the evidence does not show that the Veteran's right thigh impairment caused marked interference with his employability or necessitated periodic hospitalizations during the period on appeal; rather, the Veteran typically showed extension greater than that enunciated in the rating criteria and remained capable of performing the activities of daily living with only mild to moderate restrictions. See, e.g., VA examinations dated November 2009 and August 2010 (showing active movement against full resistance in both flexion and extension for the right hip); January 2011 (noting popping, aching, pain, and flare-ups during the cold; not reporting any hospitalizations; and noting the Veteran was currently unemployed and demonstrated, at worst, moderate restrictions with the activities of daily living). Importantly, neither the Veteran nor his representative have offered any specific argument as to why an extraschedular evaluation may be warranted in this case. Accordingly, the evidence does not reflect that the Veteran's right thigh limitation of extension is so exceptional in nature as to not be fully contemplated by the rating schedule. Rather, there are no unusual clinical pictures presented, nor is there any other factor which takes the disability outside the usual rating criteria. Thus, even with the favorable resolution of doubt, the Veteran has not carried the burden of demonstrating that his disability is of such a nature that referral for extraschedular evaluation is warranted. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). However, the Board has also considered whether a separate award of service connection is warranted for the period on appeal. Other DCs pertaining to the hip include DC 5250 (ankylosis), DC 5252 (limitation of flexion), DC 5253 (impairment of the thigh), DC 5254 (flail joint), and DC 5255 (impairment of the femur). Whether under the old or new regulations, the Veteran did not show such disability pictures as to warrant separate, compensable awards of service connection under these DCs during the period on appeal. See, e.g., VA examinations dated November 2009, August 2010, and January 2011. Upon the above, the appeal is hereby denied. After July 14, 2020 After July 14, 2020, the Veteran is currently in receipt of a 20 percent rating for right thigh impairment under DC 5010-5253; a 10 percent initial rating for right hip limitation of extension under 5010-5251; and a 10 percent initial rating for right hip limitation of flexion under 5010-5252. As an initial matter, the Veteran is again in receipt of the maximum schedular evaluations under DCs 5251 and 5253, whether applying the old or new regulations. Moreover, the evidence does not establish that an extraschedular evaluation is warranted in either instance. Rather, the evidence is silent for periodic hospitalizations or occupational interference attributable to the Veteran's right hip limitation of extension or right thigh impairment; instead, the full scope of the Veteran's symptoms, including pain and limited extension and abduction, are fully contemplated in the ratings as assigned. In offering this conclusion, the Board notes that the most recent December 2020 VA examination does not provide range of motion results for this Veteran, who was unable to participate in such testing due to pain and the reported inability to lay flat. Thus, the current maximum ratings interpret the evidence in the light most favorable to the Veteran, and finds that he shows the requisite limitation of movement as to warrant the current evaluations, even in the absence of supporting objective test results. Absent any evidence of exceptional disability pictureswhich neither the Veteran nor his representative have offered in this appealthere is simply no extraschedular basis upon which to award higher ratings for the Veteran's right hip limitation of extension under 5010-5251 or right thigh impairment under DC 5253. Based on the foregoing, these appeals are hereby denied. Next, the Board observes that the disabilities encompassed under both the old and new versions of DCs 5250 (ankylosis), 5254 (flail joint), and 5255 (impairment of the femur) are not shown in the record during the period on appeal, such that the awards of separate, compensable service-connected disabilities are not warranted on this basis. See, e.g., December 2020 VA examination. Instead, the remaining appeal may be granted upon evidence of the following: Flexion limited to 30 degrees (20 percent under DC 5252). The rating criteria remain the same under the old and new regulations. Normal range of motion remains as set forth above. Upon the evidence of record, an initial rating greater than 10 percent for right hip limitation of flexion is not warranted. Notably, the Veteran only underwent one VA examination during the period on appeal. In December 2020, range of motion testing could not be conducted due to the Veteran's pain and reported inability to lie flat. He showed normal strength on flexion, but reported daily pain and flare-ups. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran's pain limited his ability to stand or walk. Pain and lack of endurance were also said to significantly limit functional ability with repeated use over time; pain was said to significantly limit functional ability during flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The remaining medical evidence, including VA and private treatment records, do not contradict the above findings to any degree. Notably, these records are silent for definitive range of motion testing during the period on appeal; instead, they primarily document the Veteran's reports of chronic pain and related functional impairment. Additionally, the Veteran has not offered specific lay testimony during the period on appeal as to the nature and severity of his service-connected disability. Accordingly, there is no basis upon which to award a higher initial rating for the Veteran's right hip limitation of flexion. There are no objective test results which show that the Veteran's flexion was limited to 30 degrees, and the Board declines to infer such a disability picture from the remaining medical evidence. Rather, the Veteran's reports of chronic pain and occasional lack of endurance are fully contemplated in the current rating as assigned, and there is no basis upon which to award a higher rating under DC 5010-5252. DeLuca, 8 Vet. App. at 206-07. Instead, symptoms of fatigue, weakness, and incoordination are absent from the record, and the Veteran remained capable of performing many of the tasks of daily living with only moderate interference. Thus, this appeal is also denied. With respect to all matters on appeal, the Board has considered the Veteran's position that higher ratings are warranted. Although he is competent to testify as to his observable lay symptoms, he lacks the medical training and expertise to competently identify a specific level of disability according to the applicable DCs or to assess whether an exceptional disability picture is present. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Instead, greater probative value has been offered to the medical evidence in assessing the severity of the Veteran's disabilities during the periods on appeal, as the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran's disabilities and had sufficient facts and data on which to base their conclusions. In this respect, the Board finds that the medical evidence supports the determinations offered herein. Before concluding, the Board notes that the Veteran is now at a combined schedular 100 percent rating. Prior to that period, at his hearing, the Veteran indicated that he was working, and has never contended that his disabilities prevented him from securing or following a substantially gainful occupation. Absent such a contention, or the filing of a formal claim, the Board finds that the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.