Citation Nr: A21016589 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 200221-59179 DATE: October 12, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for a right hip strain, based on limitation of extension, is denied. Entitlement to an initial compensable rating for a right hip strain, based on limitation of flexion, is denied. Entitlement to an initial compensable rating for a right hip strain, based on limitation of abduction, adduction and/or rotation, is denied. Entitlement to a rating in excess of 40 percent for degenerative arthritis of the spine is denied. REMANDED Entitlement to service connection of a right shoulder strain is remanded. FINDINGS OF FACT 1. The Veteran's right hip extension has been limited to no more than 15 degrees of lost motion; he is in receipt of the maximum schedular rating available for a hip disability based on limitation of extension. 2. For the period on appeal, the Veteran's right hip disability has resulted in limitation of motion to no less than 105-110 degrees. 3. For the period on appeal, the Veteran's right hip disability has resulted in limitation of abduction to no less than 30 degrees; adduction limited no less than 10 degrees with the ability to cross his legs; and external rotation between 40 and 50 degrees. 4. The Veteran's degenerative arthritis of the spine has not resulted in ankylosis of the spine or any type of functional fixation of the thoracolumbar region; he does not have intervertebral disc disease (IVDS). CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right hip strain, with limitation of extension, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5251. 2. The criteria for a compensable rating for right hip strain, with limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5252. 3. The criteria for a compensable rating for right hip strain, with limitation of adduction, abduction and/or rotation, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5253. 4. The criteria for a rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1992 to January 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2020 statement of the case issued by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal comes before the Board under to the Modernized system of review, subject to the Appeals Modernization Act (AMA). As a matter of procedural background, the Veteran's claims initially stemmed from a February 2018 rating decision. The Veteran timely appealed that rating decision via notice of disagreement. In January 2020, the agency of original jurisdiction (AOJ) issued the statement of the case now on appeal. The Veteran opted the claim(s) into the Modernized review system by submitting a February 2020 VA Form 10182, Decision Review Request: Board Appeal, identifying the January 2020 statement of the case. Therefore, the January 2020 statement of the case is the decision on appeal. In the February 2020 VA Form 10182, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the statement of the case on appeal. 38 C.F.R. § 20.301. The Board notes that the February 2020 VA From 10182, the Veteran also appealed ratings assigned for a service-connected anterior cruciate ligament (ACL) injury. However, the Veteran had previously appealed those ratings, and they were certified to the Board under an earlier docket number. That appeal was previously addressed by the Board in August 2021. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran's right hip disability, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where, as in the case of the lumbar spine disability on appeal, entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, "[w]here 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." 38 C.F.R. § 4.7. 1. Entitlement to an initial rating in excess of 10 percent for a right hip strain, based on limitation of extension 2. Entitlement to an initial compensable rating for a right hip strain, based on limitation of flexion 3. Entitlement to an initial compensable rating for a right hip strain, based on limitation of abduction, adduction and/or rotation The Veteran has been granted service connection of a right hip strain, with a 10 percent rating assigned based on limitation of extension of the thigh, and non-compensable ratings assigned based on limitation of flexion and limitation of abduction, adduction and/or rotation of the thigh. He contents he should be granted increased disability ratings for this hip disability. The Board finds that the claim should be denied. The Veteran's right hip strain is presently rated on three planes of motion. See VAOPGCPREC 23-97 (Multiple Ratings for Joint Disability). Specifically, a 10 percent rating has been granted based on limitation of extension of the thigh under Diagnostic Code (DC) 5251; based on limitation of flexion of the thigh under DC 5252; and based on limitation of abduction, adduction and/or rotation of the thigh under DC 5253. Pursuant to DC 5251, a maximum 10 percent disability rating is granted when extension of the thigh is limited to 5 degrees or more. No higher schedular rating is allowed for limitation of extension of the thigh. 38 C.F.R. § 4.71a, DC 5251. Limitation of flexion of the thigh to 45 degrees or less is compensated by a 10 percent disability rating. A 20 percent rating is assigned for limitation of flexion to 30 degrees or less. Flexion limited to 20 degrees or less is awarded a 20 percent rating. Finally, a maximum 40 percent rating is awarded for flexion of the thigh limited to 10 degrees or less. 38 C.F.R. § 4.71a, DC 5252. Finally, a 10 percent rating is assigned for either limitation of rotation of the thigh, described as "cannot toe-out more than 15 degrees" in the affected leg, or for limitation of adduction, described as "cannot cross legs." A 20 percent rating is assigned when limitation of abduction of the thigh results in motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253. A 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. § 4.40 With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40 ); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). To the extent that the Veteran's most recent VA examination in 2018 found degenerative arthritis is part of the service-connected disability, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5003. The Board notes that the criteria for rating degenerative arthritis have changed during the pendency of this appeal, although only to clarify the definition of degenerative arthritis, specifically to exclude traumatic arthritis. Where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 07-03 (November 19, 2003). As the actual rating criteria did not change, and the Veteran's diagnosis is clearly degenerative in nature, the Board need not consider whether a new rule applies as opposed to the old. The Veteran was originally afforded a VA examination in connection with his claim in September 2017. At that time his right hip strain was confirmed. He reported increased hip pain the prior few months. his pain was described as aching all the time, with occasional sharp pain, more noticeable when he moves his knee inwards, occurring 2-3 times per day. He treated his pain with oral medication. Flare-ups were described as sharp pain flares, especially when weight bearing, immediately subsiding when he stops bearing weight on the hip. He denied any functional loss or functional impairment of the hip joint. Flexion was to 105 degrees. Extension was to 15 degrees. External rotation was to 40 degrees; internal rotation was to 25 degrees. Adduction was to 10 degrees and he was able to cross his legs. Abduction was limited to 30 degrees. The examiner stated that his range of motion was normal for his habitus and age and showed no clinical significance. Pain was noted on examination at the terminal points, but did not cause or result in functional loss. No additional loss was found on repetitive use testing. The examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during periods of flare. The examiner could not provide specific degrees of functional loss during a period of flare without resort to speculation, but did provide a description of said loss during a period of flare. No additional factors contributed to the disability. Muscle strength showed active movement against some resistance with active movement against gravity on abduction. There was no malunion or nonunion of the femur, flail joint, or leg length discrepancy. There was no evidence of ankylosis or functional fixation of the hip joint. He had not required a joint replacement or other hip surgery. He used a cane to ambulate. He reported having difficulty standing for long periods of time and ambulating over long distances. He could not move heavy equipment. A new VA examination was conducted in November 2018. At that time, his hip strain and degenerative arthritis were confirmed as diagnoses. He reported right hip pain that occurred daily, was constant and progressive in nature. Flares were reported a constant, daily pain in the right hip, with difficulty walking, standing and sitting for long periods of time. Flexion was limited to 110 degrees. extension was complete and full, 1-30 degrees. Abduction was normal. Adduction was normal, and the Veteran could cross his legs. External rotation was limited to 50 degrees and internal rotation was limited to 30 degrees. pain was noted on flexion, and both external and internal rotation, but did not cause or result in functional loss. There was no evidence of pain with weight bearing or crepitus. No additional loss was reported on repetitive use testing. The examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during periods of flare. The examiner could not provide an estimate of functional loss in terms of degrees during a period of flare, as there was no conceptual or empirical basis for making such a determination without actual observation, but did provide the Veteran's description of pain during a flare. No additional factors contributed to functional loss. Muscle strength was complete and full on all planes of motion. He did not have muscle atrophy. There was no evidence of ankylosis or fixation of the hip joint. There was no evidence of malunion or nonunion of the femur, flail joint, or leg length discrepancy. He had not required any hip surgery. No other pertinent physical findings were reported. He did not use an assistive device to ambulate. Functionally, the examiner stated that he had difficulty with walking, standing or sitting for long periods of time, and that his hip disability had caused him to lose 0-1 weeks of work in the prior 12 months. The Board has reviewed the Veteran's remaining medical treatment records but finds none that directly address the type of rating criteria anticipated by the rating schedule Based on the above evidence, the Board finds that initial increased ratings are not supported. With regard to limitation of extension, the Veteran has already been granted the maximum schedular rating based on such limitation, and there is no schedular criteria upon which to grant a rating in excess of 10 percent. Turning to the question of compensable ratings for limitation of flexion, at no point has the Veteran shown limitation of flexion of the thigh to 45 degrees or less. Indeed, the Veteran generally has shown flexion to 105-110 degrees without further limitation. Even accounting for periods of flare, with the Veteran's own description of such periods, there is no evidence that the Veteran has lost use of the hip or thigh beyond 45 degrees of flexion. Therefore, the Board does not find that the criteria for a compensable rating based on limitation of flexion has been met. Finally, regarding any possible other limitations of motion, abduction was limited upon the 2017 examination to 30 degrees with normal motion in 2018, which is beyond the 10 degrees which would warrant a compensable rating. Likewise, while he has been shown to have imitation of adduction, he has consistently been able to cross his legs, which also does not provide for a compensable rating. Finally, the Veteran has shown external rotation of the thigh between 40 and 50 degrees, which is beyond the 15 degree limit on toeing-out for compensation purposes. Even when dealing with periods of flare, the Veteran hs described his pain to be either brief and passing, or constant, sharp in nature, but he has not alleged that his motion has been limited on either adduction, abduction or rotation such that a compensable rating would be warranted. At most, the Veteran's hip strain with arthritis has been shown to limit extension to a compensable degree, but not limit his flexion or other planes of motion such that a compensable level of loss has been shown. While flare-ups have been described, and he has shown some functional loss, that loss is generally described as preventing standing or walking for long periods of time, as well as extended sitting. There is no indication that his motion of the thigh and through the hip joint have been limited such that higher schedular ratings would be warranted. The Board has also considered whether other rating might be warranted, but finds that they are not. There is no evidence of ankylosis, either actual or functional fixation, in the hip joint. There is no evidence of impairment of the femur. In sum, the Board finds that the Veteran has already been granted the maximum schedular rating based on limitation of extension of the thigh. While he does have some limitation of flexion, abduction, adduction, and rotation of the right hip and thigh, there is no evidence that that limitation has resulted in a compensable level of functional loss. As such, the Board finds that the claims for increased ratings for the right hip disability should be denied. the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 4. Entitlement to a rating in excess of 40 percent for degenerative arthritis of the spine For the period on appeal, the Veteran has been granted a 40 percent rating based on degenerative arthritis of the spine. He seeks a higher rating. the Board finds that the claim should be denied. The Veteran's arthritis of the lumbar spine is rated under DC 5242, which compensates for degenerative arthritis of the spine, and applies the General Rating Formula for Diseases and Injuries of the Spine. Under the applicable rating criteria a 40 percent rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine is awarded a 50 percent schedular rating. Finally, unfavorable ankylosis of the entire spine (both thoracolumbar and cervical) is awarded a 100 percent disability rating. In short, for the Veteran to be awarded an increased rating based on function loss of use of the spine, ankylosis must be demonstrated. 38 C.F.R. § 4.71a, DC 5242. Objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. Id., Note (1). In the present matter, the Veteran is service-connected for right and left lower extremity radiculopathy, secondary to his low back disability. During the pendency of this appeal, the ratings for his radiculopathy were addressed in a March 2019 rating decision, and the Veteran did not appeal those ratings as assigned. As such, the Board will not address them as part of this appeal. An alternative method for rating disabilities of the spine involves rating based on intervertebral disc disease (IVDS), under DC 5243. When IVDS is present, a 40 percent rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A maximum 60 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. For purposes of adjudicating this appeal, the Board takes notice that the Veteran has not been diagnosed with IVDS during the appeal period. It is noted that during the pendency of this appeal the rating code pertaining to DCs 5242 and 5243 were amended. Specifically, although the actual rating criteria were not amended, DC 5242 was amended to clarify that it applied to degenerative arthritis of the spine, described as "degenerative disc disease other than intervertebral disc syndrome." DC 5243 was amended to clarify that it should only be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign DC 5242 for all other disc diagnoses. See 85 Fed. Reg. 76,453 (November 30, 2020). As noted above, where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 07-03 (November 19, 2003). However, 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; Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the Veteran's claim was received prior to the effective date of the regulation changes, the Board must consider the Veteran's spine disability under both the old and the revised rating criteria and must apply the old rating criteria if the result is more favorable to the Veteran. Id. The Veteran was afforded a VA examination in October 2017. The Veteran was diagnosed with residuals of a lumbar spine injury. The Veteran described pain in his right leg, left buttock, and low back, increasing over the prior two years. He had not required any surgery. Flare-ups were described as impeding his ability to walk, lift, or stand for too long, aggravated by standing on his feet or lifting. Initial range of motion was normal on all planes of motion without pain. No additional loss was noted with repetitions. Testing was complete in weight-bearing and non-weight bearing, as well as active and passive motion. The examination was neither medically consistent nor inconsistent with the Veteran's statements regarding functional loss with repetitive use over time or during a period of flare. The examiner stated that factors such as pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. He did not have guarding or spasms. No additional factors contributed to his disability. Muscle strength testing in the low back and lower extremities was generally normal and complete. He did not have any evidence of muscle atrophy. Reflexes were normal in all locations. His straight leg raising testing was negative. He showed mild to moderate radiculopathy in both lower extremities. The examiner found no evidence of ankylosis of the spine, either diagnosed or functional. He did not have IVDS. He did not require an assistive device to ambulate. The examiner stated that his back condition made it difficult for him to function in an occupational environment other than sedentary type work, as being on his feet would be difficult, but as he worked in IT, he was already completing sedentary work. A second VA examination was conducted in November 2018. At that time, he was diagnosed with degenerative arthritis of the spine, due to a lumbar spine injury during active service. He reported increased back pain after a work injury 18 months prior, with pain being constant and daily. Current symptoms included low back pain. He rated his pain at 8/10, and reported difficulty lifting heavy objects, bending and squatting. Forward flexion was limited to 75 degrees with normal motion on all other planes. Range of motion testing was completed in passive and active movement. Pain was noted on examination, but did not result in any additional functional loss. No additional loss was observed with repetition. The examination was neither medically consistent nor inconsistent with the Veteran's statements regarding functional loss with repetitive use over time or during a period of flare. No additional factors contributed to his disability. Muscle strength testing in the low back and lower extremities was generally normal and complete. He did not exhibit guarding, spasms, or abnormal spinal contour. Sensory testing was generally normal with some mild radiculopathy found in the lower extremities, bilaterally. There was no evidence of diagnosed ankylosis. He did not have any fixation of the spine. There was no IVDS identified. He did not use an assistive device to ambulate. Functionally, he was found to have difficulty lifting heavy objects, bending and squatting. A September 2019 addendum opinion to the November 2018 examination found that there was no objective medical evidence to suggest that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time, nor that these factors significantly contributed to functional loss during periods of flare. Ongoing treatment records indicate treatment for low back pain, but do not show any evidence of ankylosis or fixation of the spine. Based on this evidence, the Board finds that the Veteran's low back disability should not be granted a rating in excess of the 40 percent already assigned during the appeal period. At no point has the Veteran been found to have a diagnosis of ankylosis of the thoracolumbar spine. Neither has he been shown to have any type of functional fixation of the thoracolumbar spine, even during periods of flare. Indeed, while painful, the Veteran generally has good movement in the thoracolumbar spine region. Thus, absent evidence of ankylosis or some kind of functional fixation preventing movement in the spine, there is no basis upon which to assign a higher rating. The Veteran has not been shown to have any IVDS, let alone require bedrest during incapacitating episodes of such significant time that a rating in excess of 40 percent would be warranted. Therefore, based on the evidence of record, the Board finds that a rating in excess of 40 percent for the lumbar spine disability should be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND Inasmuch as the Board regrets further delay in the adjudication of this appeal, a remand is necessary to correct a predecisional duty to assist error. 5. Entitlement to service connection of a right shoulder strain The Veteran asserts that his shoulder strain is the result of his service-connected ACL disability. Specifically, he asserts that the strain was either caused/worsened by a fall he took when his knee gave out. In the alternative, he asserts that his strain has been caused or aggravated by his use of a cane, required due to his ACL disability. VA sought an opinion in December 2018. The Board finds this opinion to be inadequate on two fronts. First, the examiner opined that the shoulder strain was less likely than not caused by the ACL injury because "the two conditions are not medically related. The claimed disorder is a separate entity entirely from the service connection condition and unrelated to it." The Board finds that this opinion lacks adequate detail or discussion for the conclusion reached. The examiner failed to discuss the Veteran's assertion that use of a cane has either caused or aggravated his shoulder, nor did he discuss the alleged fall taken by the Veteran due to his knee giving out. Rather, the examiner merely stated that the disabilities are unrelated, which is conclusory without adequate rationale. Further, the Board notes that a disability may be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. While a direct causation opinion was provided (inadequate as it may be), the examiner did not address aggravation of the shoulder strain by the service-connected ACL disability. As such, the Board will remand this appeal so that an adequate opinion may be obtained. The appeal is remanded for the following development: Obtain an addendum opinion from a qualified examiner regarding the Veteran's right shoulder strain. The complete claims file should be made available. The examiner should review the complete medical history and provide the following opinions: (a.) Whether it is at least as likely as not that the Veteran's right shoulder strain has been caused by any service-connected disability, to include his ACL, low back, or right hip disability. (b.) Whether it is at least as likely as not that the Veteran's right shoulder strain has been aggravated by any service-connected disability, to include his ACL, low back, or right hip disability. In providing these opinions, the examiner should be mindful of the Veteran's statements. Specifically that his routine use of a cane (necessitated by his service-connected disabilities) has worsened his shoulder symptoms. A complete rationale should accompany the opinions requested. A new examination is not necessary unless deemed so by the RO or the examiner. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, Counsel