Citation Nr: 21066869 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 18-48 217 DATE: November 2, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for a service-connected left hip disability based on limitation of extension or flexion is denied. Entitlement to a separate, 10 percent disability rating, but no higher, for a service-connected left hip disability based on impairment of the thigh, effective June 30, 2021, is granted. FINDINGS OF FACT 1. The Veteran's service-connected left hip disability is manifested by pain and some limitation of flexion; there is no evidence of ankylosis, limitation of flexion to 30 degrees or less, flail joint of the hip or malunion of the femur with marked knee or hip disability. 2. The evidence from June 30, 2021 demonstrates that with repeated use over time and during flare-ups, the Veteran's adduction is limited such that she is unable to cross her legs. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 10 percent for a service-connected left hip disability based on limitation of extension and flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a Diagnostic Codes 5251, 5252. 2. From June 30, 2021, the criteria for entitlement to a separate, 10 percent disability rating, but no higher, based on impairment of the thigh have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a Diagnostic Code 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from March 2003 to August 2004. In April 2021, the Board of Veterans' Appeals (Board) remanded the matter on appeal for additional evidentiary development. The requested development has been completed in substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Entitlement to an initial disability rating in excess of 10 percent for a service-connected left hip disability is denied. The Veteran maintains entitlement to an initial disability rating in excess of 10 percent for her service-connected left hip disability. The Board notes that during the pendency of the appeal, 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). While Diagnostic Code 5255 was amended, as will be discussed below, the Veteran did not have impairment of the femur. Therefore, the amended criteria are not for application in this case. Under Diagnostic Code 5251, limitation of hip extension to 5 degrees warrants a 10 percent evaluation and it is the highest evaluation available under the Diagnostic Code. 38 U.S.C. § 4.71 a, Diagnostic Code 5251. Limitation of hip flexion is evaluated under Diagnostic Code 5252. A 10 percent evaluation is warranted for flexion limited to 45 degrees; a 20 percent evaluation is warranted for flexion limited to 30 degrees; a 30 percent evaluation is warranted for flexion limited to 20 degrees; and a maximum 40 percent evaluation is warranted for flexion limited to 10 degrees. 38 U.S.C. § 4.71a, Diagnostic Code 5252. Under of Diagnostic Code 5253 (impairment of the thigh), a maximum rating of 20 percent is assigned for limitation of abduction when motion is lost beyond 10 degrees. A rating of 10 percent is assigned for a limitation of adduction (cannot cross legs) or for a limitation of rotation (cannot toe-out more than 15 degrees). Turning to the evidence of record, the Veteran underwent a VA examination in November 2017. There, she described experiencing sharp pain in her left hip that caused piercing and the use of Tramadol, Tylenol, and Aspirin to manage it. She denied flare-ups of the left hip or thigh. She also denied having any functional loss or functional impairment of the left hip. Range of motion testing was performed using a goniometer. Flexion was to 115 degrees. Extension was normal to 30 degrees. Abduction was normal to 45 degrees. Adduction was normal to 25 degrees. External rotation was normal to 60 degrees. Internal rotation was normal to 40 degrees. Adduction was not limited such that the Veteran could not cross her legs. No pain was noted on examination, nor was there objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue or crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion after three repetitions. The examination was not conducted immediately after repetitive use over time. The examiner found that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. She was unable to say whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over a period of time without resorting to mere speculation. She reasoned that there was no conceptual or empirical basis upon which to make sure a determination without directly observing the Veteran's functioning under these conditions. There were no additional contributing factors to the Veteran's disability noted. Muscle strength testing was normal, and she did not display muscle atrophy. She did not have ankylosis. She did not have malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. The Veteran had not undergone any surgical procedures on her left hip. She did not display any other pertinent physical findings, complications, conditions, signs, or symptoms related to her service-connected left hip disability, to include scars. The Veteran endorsed the occasional use of a walker for her non-service-connected lumbar spine disability. Functioning of the Veteran's left hip was not so diminished that amputation with a prosthesis would equally serve the Veteran. Diagnostic testing revealed slight complexity of the left psoas muscle fat planes that correlated with bursitis but was otherwise negative. On the Veteran's May 2018 notice of disagreement, she averred that she was unable to flex her hips greater than 25 degrees. In July 2018, the Veteran attended another VA examination. There, the Veteran reported that she had dull, achy pain her left hip, rating about 5/10. The pain increased and became sharper with activity. She indicated that she was unable to sleep on the left side and slept less than two hours at a time due to the pain. She reported that she had undergone some physical therapy in the past and was waiting on approval to continue it. She used Tramadol, Lidocaine patches, Voltaren, and Aspercreme as needed. She again denied experiencing flare-ups. Concerning functional loss, the Veteran indicated that she was unable to stand, sit, or walk for long periods. Range of motion testing was performed using a goniometer. Flexion was to 115 degrees. Extension was normal to 30 degrees. Abduction was normal to 45 degrees. Adduction was normal to 25 degrees. External rotation was normal to 60 degrees. Internal rotation was normal to 40 degrees. Adduction was not limited such that the Veteran could not cross her legs. Pain was noted on all ranges of motion and with weight-bearing, but the examiner found that it did not result in or cause functional loss. No pain was noted on examination, nor was there objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue or crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion after three repetitions. The examination was not conducted immediately after repetitive use over time. The examiner found that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. She was unable to say whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over a period of time without resorting to mere speculation. She reasoned that there was no conceptual or empirical basis upon which to make sure a determination without directly observing the Veteran's functioning under these conditions. There were no additional contributing factors to the Veteran's disability noted. Muscle strength testing was normal, and she did not display muscle atrophy. She did not have ankylosis. She did not have malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. The Veteran had not undergone any surgical procedures on her left hip. She did not display any other pertinent physical findings, complications, conditions, signs, or symptoms related to her service-connected left hip disability, to include scars. The Veteran endorsed the occasional use of a walker for support. Functioning of the Veteran's left hip was not so diminished that amputation with a prosthesis would equally serve the Veteran. In an October 2018 VA treatment record, the Veteran reported that she experienced sharp pain to her left hip which caused her left knee to snap back. She then fell on to the cement on her right knee and both hands in an attempt to break the fall. She was able to move her extremities with pain. VA treatment records continue to document the Veteran's complaints of left hip pain. The Veteran attended another VA examination in June 2021. The Veteran indicated that she could not sit, stand, or lay on her left side for more than 5 to 10 minutes due to pain. She noticed a sharp pain with any pressure but a throbbing sensation at rest. She also described numbness and tingling down her left hip. She reported the use of Hydrocodone and over-the-counter Tylenol. The Veteran also stated that she had a house aide that came to assist her with daily activities. At that examination, the Veteran reported experiencing severe flare-ups once or twice a day that lasted from 30 minutes to 2 hours. These flares were precipitated by prolonged standing or walking and were alleviated by rest. Range of motion testing was performed using a goniometer. Flexion was to 70 degrees. Extension was normal to 30 degrees. Abduction was to 30 degrees. Adduction was normal to 25 degrees. External rotation was to 40 degrees. Internal rotation was to 25 degrees. The Veteran's limitation of adduction did not prevent the Veteran from crossing her legs. Passive range of motion yielded the same results on extension, adduction, external rotation, and internal rotation. Flexion was to 100 degrees on passive motion. Abduction was to 35 degrees on passive motion. The Veteran's limitation of adduction on passive motion did not prevent the Veteran from crossing her legs. Pain was noted on weight-bearing, active motion, and passive motion, and caused limited range of motion due to pain. The Veteran was unable to fully flex at the hip and had decreased rotation. There was no objective evidence of crepitus. The examiner observed moderate localized tenderness or pain on palpation of the lateral aspect of the left hip over the greater trochanter. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function or range of motion after three repetitions. While the Veteran was not examined immediately after repeated use over time, the examiner procured evidence from the Veteran regarding her symptomatology under those conditions. Using this evidence, the examiner noted that pain caused functional loss following repeated use over time and was able to provide estimates of loss of range of motion under this condition. Flexion was to 65 degrees. Extension was to 25 degrees. Abduction was to 20 degrees. Adduction was to 20 degrees. External rotation was to 35 degrees. Internal rotation was to 20 degrees. Limitation of adduction after repeated use over time prevented the Veteran from crossing her legs. Additionally, while the Veteran was not examined during a flare-up, the examiner procured evidence from the Veteran regarding her symptomatology during a flare. Using this evidence, the examiner noted that pain caused functional loss during a flare-up and was able to provide estimates of loss of range of motion under this condition. Flexion was to 60 degrees. Extension was to 20 degrees. Abduction was to 15 degrees. Adduction was to 15 degrees. External rotation was to 30 degrees. Internal rotation was to 15 degrees. Limitation of adduction during a flare-up prevented the Veteran from crossing her legs. There were no additional contributing factors to the Veteran's disability noted. The Veteran did not display muscle atrophy or ankylosis. She did not have malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. The Veteran had not undergone any surgical procedures on her left hip. She did not display any other pertinent physical findings, complications, conditions, signs, or symptoms related to her service-connected left hip disability, to include scars. The Veteran endorsed the constant use of a walker for ambulation due to her service-connected left hip disability. Functioning of the Veteran's left hip was not so diminished that amputation with a prosthesis would equally serve the Veteran. The examiner asked the Veteran how she measured the 25 degree limitation of flexion that she reported on her notice of disagreement. The Veteran stated that she had not used an apparatus to measure her limitation; she just knew that she could barely lift her leg and could not stand or sit without excruciating left hip pain. The examiner also addressed the findings of flexion to 115 degrees in the previous VA examinations, noting that the more accurate limitations were documented in the current examination. As an initial matter, the Board finds that the Veteran is in receipt of the maximum schedular rating allowable for her service-connected left hip disability based on limitation of extension under Diagnostic Code 5251. No higher rating is possible as a matter of law. Thus, further discussion regarding limitation of extension is not warranted. The Board now turns to whether a separate or higher rating is warranted based on limitation of flexion under Diagnostic Code 5252. The medical record reflects that, at worst, the Veteran's left hip flexion was limited to 60 degrees, as estimated during a flare-up at the June 2021 VA examination. While the record shows that the Veteran has experienced ongoing pain, there is no probative evidence to support a finding that her range of motion was limited beyond the objective findings contained in VA treatment records and examination reports. The Board has considered the Veteran's lay statements concerning her functional limitation due to her service-connected left hip disability, particularly her statement that flexion at worst is limited to 25 degrees. The record reflects that she is a nurse and has medical knowledge. However, the Board finds that her reports regarding the specific range of motion limitation she experiences are outweighed by the findings at the VA examinations, as they were performed using a goniometer. The fact that, "The use of a goniometer in the measurement of limitation of motion is indispensable in examinations conducted within the Department of Veterans Affairs" indicates the importance of this tool in accurately measuring the limitation of a Veteran's range of motion. 38 C.F.R. § 4.46. The Veteran admittedly did not utilize any apparatus to assist her range of motion determination. Thus, her statement is of low probative value, and the Board finds that a separate, higher rating is not warranted for the Veteran's left hip disability based on limitation of flexion. Next, the Board assesses whether a separate or higher rating is warranted based on impairment of the Veteran's left thigh. The June 2021 examination report reflects that the Veteran was unable to cross her legs on repeated use or during flare-ups as is contemplated by a 10 percent rating under Diagnostic Code 5253. As this examination report is the first objective medical evidence documenting this limitation, the Board finds that a separate, 10 percent disability rating is warranted for the Veteran's left hip disability based on impairment of the left thigh, effective June 30, 2021. However, the Board finds that a higher 20 percent rating under Diagnostic Code 5253 is not warranted, as abduction was not found to be 10 degrees or less even after consideration of functional impairment due to flare-ups and repeated use over time. Further, the Board has considered whether repetitive motion and/or flare-ups resulted in additional functional loss due to symptoms such as pain, swelling, weakness, fatigue, or incoordination. Pain resulted in additional functional loss under these conditions, which was quantified in terms of range of motion at the Veteran's June 2021 VA examination. However, even accounting for this additional functional loss, the Veteran is not entitled to any additional compensable or higher ratings under the above discussed Diagnostic Codes. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board has also considered whether separate ratings are required under Diagnostic Codes 5250, 5254, and 5255. It finds that no such ratings are warranted. The record contains no indication that the Veteran's left hip disability is manifested by ankylosis as she has been able to move her left hip throughout the appeal period, albeit with pain. In fact, all of the examination reports of record throughout the appeal period expressly document that the Veteran does not have ankylosis. Additionally, the Veteran has not been shown to have flail joint, nor has impairment of the femur been diagnosed. Thus, additional ratings under Diagnostic Codes 5250, 5254, and 5255 are not applicable. 38 C.F.R. § 4.71a. In sum, the Board has considered the entire record, including the Veteran's reported symptomatology and the objective clinical evidence. For the reasons set forth above, the assignment of an initial disability rating in excess of 10 percent for the Veteran's left hip disability based on limitation of extension and flexion is denied. A separate, 10 percent disability rating, but no higher, for the Veteran's left hip disability based on impairment of the thigh is granted, effective June 30, 2021, the date on which the record reflects this specific manifestation. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.