Citation Nr: 21067258 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-28 724 DATE: November 3, 2021 ORDER A compensable rating for a left hip strain with impairment of the thigh, from August 31, 2015 to December 4, 2019, is denied. A rating higher than 10 percent for a left hip strain with impairment of the thigh, from December 5, 2019 to the present, is denied. A compensable rating for a left hip strain with limitation of flexion is denied. A rating higher than the maximum, 10 percent rating, for a left hip strain with limitation of extension is denied. A compensable rating for a right hip strain with impairment of the thigh is denied. A rating higher than 10 percent for a right hip strain with limitation of flexion is denied. A compensable rating for a right hip strain with limitation of extension is denied. FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran's left hip strain has manifested as painful motion without compensable impairment or limitation of motion. 2. Throughout the entire period on appeal, the Veteran's right hip strain has manifested as painful motion without compensable impairment or limitation of motion under any applicable DC. CONCLUSIONS OF LAW 1. From August 31, 2015 to December 4, 2019, the criteria for a compensable rating for a left hip strain with impairment of the thigh have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5253. 2. From December 5, 2019 to the present, the criteria for a rating higher than 10 percent for a left hip strain with impairment of the thigh, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5253. 3. Throughout the entire period on appeal, the criteria for a compensable rating for a left hip strain with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5252. 4. Throughout the entire period on appeal, the criteria for a rating higher than the maximum, 10 percent rating, for a left hip strain with limitation of extension, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5251. 5. From December 5, 2019 to the present, the criteria for a compensable rating for a right hip strain with impairment of the thigh have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5253. 6. Throughout the entire period on appeal, the criteria for a rating higher than 10 percent for a right hip strain with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5252. 7. From December 5, 2019 to the present, the criteria for a compensable rating for a right hip strain with limitation of extension have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5251. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1992 to January 1995. This matter was previously before the Board of Veterans' Appeals (Board) in March 2019 when the issues were remanded for a new VA examination to determine the current severity of the Veteran's bilateral hip disability. In accordance with the March 2019 Board remand, the Veteran was provided a new VA examination in December 2019. Further development having been completed; the matter is once again before the Board. Throughout the entire period on appeal, the evidence of record does not show that increased ratings are warranted for either hip, and the claims will be denied. Increased Ratings Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes ("DC"s). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should 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. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 innervation, 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 which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Provision 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion ("ROM") measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). The provisions of 38 C.F.R. § 4.59 recognize that painful motion is an important factor of disability. Joints that are painful, unstable, misaligned, or due to healed injury are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. A compensable rating for a left hip strain with impairment of the thigh, from August 31, 2015 to December 4, 2019, is denied. 2. A rating higher than 10 percent for a left hip strain with impairment of the thigh, from December 5, 2019 to the present, is denied. 3. A compensable rating for a left hip strain with limitation of flexion is denied. 4. A rating higher than the maximum, 10 percent rating, for a left hip strain with limitation of extension is denied. 5. A compensable rating for a right hip strain with impairment of the thigh is denied. 6. A rating higher than 10 percent for a right hip strain with limitation of flexion is denied. 7. A compensable rating for a right hip strain with limitation of extension is denied. The Veteran contends that her bilateral hip condition is worse than that which is reflected by her disability ratings. Throughout the entire period on appeal, the Veteran's left hip is rated as 10 percent disabling under DC 5251 based on painful motion, and as noncompensable under DC 5252 based on noncompensable limitation of motion. Her left hip is separately rated as 10 percent disabling, from December 5, 2019 to the present, under DC 5253 based on painful motion. Throughout the entire period on appeal, the Veteran's right hip is rated as 10 percent disabling under DC 5252 based on painful motion. Her right hip is separately rated as noncompensable, from December 5, 2019 to the present, under DC 5251 and 5253 based on noncompensable limitation of motion. For the following reasons, increased ratings are not warranted, and the claims will be denied. DC 5253 provides ratings based on impairment of the thigh. A 10 percent rating is warranted for limitation of thigh/hip rotation such that an individual cannot toe-out more than 15 degrees on the affected leg, or a limitation of thigh/hip adduction such that an individual cannot cross their legs. A 20 percent disability rating is warranted for limitation of thigh/hip abduction such that motion is lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253. DC 5252 provides ratings for limitation of flexion of thigh. Limitation of flexion to 45 degrees warrants a 10 percent rating. Limitation of flexion to 30 degrees warrants a 20 percent rating. Flexion limited to 20 degrees warrants a 30 percent rating. Flexion limited to 10 degrees warrants a 40 percent rating. 38 C.F.R. § 4.71a, DC 5252. DC 5251 provides a single 10 percent rating for a limitation of thigh/hip extension to five degrees. 38 C.F.R. § 4.71a, DC 5251. Other DCs potentially applicable include DC 5250, which provides ratings for ankylosis of the hip. A 60 percent rating is warranted for a favorable angle in flexion at an angle between 20 and 40 degrees, and slight adduction or abduction. A 70 percent rating is intermediate ankylosis. A 90 percent rating is warranted for extremely unfavorable ankylosis, the foot not reaching ground, crutches necessitated. 38 C.F.R. § 4.71a, DC 5256. DC 5254 provides a single 80 percent rating for a flail hip joint. 38 C.F.R. § 4.71a, DC 5254. DC 5255 provides ratings based on impairment of the femur. A 10 percent rating is warranted for malunion with slight knee or hip disability. A 20 percent rating is warranted for malunion with moderate knee or hip disability. A 30 percent rating is warranted for malunion. A 60 percent rating is warranted for fracture of surgical neck of, with false joint; or fracture of shaft or anatomical neck with nonunion, without loose motion, weightbearing preserved with aid of brace. An 80 percent rating is warranted for fracture of shaft or anatomical neck with nonunion, with loose motion (spiral or oblique fracture). 38 C.F.R. § 4.71a, DC 5255. During the May 2016 VA examination, the examiner noted a diagnosis of bilateral hip strain. The Veteran reported swelling and pain, which lasts all day, and she reported that she wakes up with pain. She reported flare-ups when walking and described her flare-ups as constant, sharp, radiating pain from her hips to her feet. She reported that her condition has caused her quality of life to diminish and that it takes him twice as long to start/complete her activities of daily life. Initial ROM measurements for the right hip were recorded as normal, full ROM. No pain, crepitus, or evidence of localized tenderness or pain on palpation of the joint or soft tissue was indicated. Initial ROM measurements for the left hip were recorded as follows: flexion to 120 degrees, extension to 25 degrees, abduction to 35 degrees, adduction to 20 degrees, external rotation to 50 degrees, and internal rotation to 30 degrees. ROM was noted to cause a functional loss in that it causes fatigue. Pain was noted on rest and non-movement. The examiner noted evidence of pain with weight bearing. Evidence of crepitus was denied. Evidence of localized tenderness or pain on palpation of the joint or soft tissue was denied. The examiner noted that the Veteran was able to perform observed repetitive use testing. However, no additional loss of function or ROM was recorded bilaterally. On repeated use over time testing, no additional loss of ROM was recorded for either hip. However, the examiner noted that repeated use over time causes pain, fatigue, and weakness in the left hip. The examination was not conducted during a flare-up of the right hip, and the examiner noted that pain, weakness, fatigability, or incoordination does not significantly limit functional ability of the right hip with flare-ups. The examination was conducted during a flare-up of the left hip. The examiner noted pain, fatigue, and weakness of the left hip with flare-ups. The examiner recorded additional limitation of ROM, during a flare-up, for the left hip as follows: flexion to 120 degrees, extension to 20 degrees, abduction to 35 degrees, adduction to 20 degrees, external rotation to 50 degrees, and internal rotation to 30 degrees. The examiner noted that weakened movement, disturbance of locomotion, and interference with sitting and standing are additional factors contributing to the left hip condition. The examiner noted that the Veteran's ability to cross her legs is not impacted by either hip condition. Muscle strength was normal bilaterally. Muscle atrophy and ankylosis were denied bilaterally. Malunion or nonunion of femur, flail hip joint or leg length discrepancy were denied bilaterally. The use of assistive devices was denied. The examiner noted that May 2015 bilateral hip x-rays show no abnormalities. In terms of functional impact, the examiner noted that the Veteran experiences pain, fatigue, and decreased ROM with walking, standing, and ambulating. During the December 2019 VA examination, the examiner noted a diagnosis of bilateral hip strain. The Veteran denied flare-ups. However, she reported that she has pain in both hips when ascending and descending stairs. Initial ROM measurements for the right hip were recorded as follows: flexion to 120 degrees, extension to 25 degrees, abduction to 40 degrees, adduction to 20 degrees, external rotation to 55 degrees, and internal rotation to 35 degrees. The examiner noted that ROM itself does not contribute to a functional loss. Pain was noted on rest/non-movement. Initial ROM measurements for the left hip were the same as those recorded for the right hip. There is no indication that ROM itself contributes to a functional loss. However, pain was noted to cause a functional loss. The examiner noted evidence of pain with weight bearing bilaterally. No objective evidence of localized tenderness or pain on palpation of either hip was indicated. No objective evidence of crepitus of either hip was indicated. The examiner noted that bilateral adduction is not limited such that the Veteran cannot cross her legs. The examiner noted that the Veteran was able to perform observed repetitive use testing. However, the examiner noted no additional loss of function or ROM bilaterally. Repeated use over time testing was not performed. However, the examiner noted that pain, fatigue, and weakness limit functional ability bilaterally with repeated use over time. Described in terms of ROM, the examiner recorded the following measurements, which were the same for each hip: flexion to 115 degrees, extension to 20 degrees, abduction to 35 degrees, adduction to 15 degrees, external rotation to 50 degrees, and internal rotation to 30 degrees. The examiner noted that post-test adduction was not limited, bilaterally, such that the Veteran cannot cross her legs. No additional contributing factors were indicated for either hip. Muscle strength was normal bilaterally. Muscle atrophy and ankylosis were denied bilaterally. Malunion or nonunion of femur, flail hip joint or leg length discrepancy were denied bilaterally. The use of assistive devices was denied. In terms of functional impact, the Veteran reported that she is unable to ascend and descend stairs, and instead uses an elevator or escalator. The examiner noted objective evidence of pain on passive ROM and non-weight bearing bilaterally. Throughout the entire period on appeal, the Veteran's left hip is rated as 10 percent disabling under DC 5251 based on painful motion, with extension limited to, at worst, 20 degrees. A 10 percent rating under DC 5251 is the maximum rating under DC 5251. Throughout the entire period on appeal, the Veteran's right hip extension has been limited to, at worst, 20 degrees. Since the Veteran has not demonstrated right hip extension limited to 5 degrees or less, a compensable rating under DC 5251 is not warranted. 38 C.F.R. § 4.71a, DC 5251. Throughout the entire period on appeal, the Veteran's left hip flexion has been limited to, at worst, 115 degrees. Under DC 5252 a 10 percent rating is warranted when flexion is limited to 45 degrees. Thus, a compensable rating under DC 5252 for limitation of flexion of the left hip is not warranted. Throughout the entire period on appeal, the Veteran's right hip is rated as 10 percent disabling under DC 5252 based on painful motion, with flexion limited to, at worst 115 degrees. A higher, 20 percent rating, requires flexion limited to 30 degrees. Since the Veteran has not demonstrated right hip flexion limited to 30 degrees, a higher, 20 percent rating under DC 5252 is not warranted. 38 C.F.R. § 4.71a, DC 5252. From August 31, 2015 to December 4, 2019, the Veteran's left hip is rated as noncompensable under DC 5253 based on noncompensable limitation of motion, and as 10 percent disabling under DC 5253, from December 5, 2019 to the present, based on painful motion. From August 31, 2015 to December 4, 2019, a compensable rating under DC 5353 is not warranted, since the evidence shows limitation of abduction and adduction limited, at worst, 35 degrees and 20 degrees respectively. From December 5, 2019 to the present, a higher, 20 percent rating under DC 5253 is not warranted, since the evidence shows limitation of abduction and adduction limited to, at worst, 35 degrees and 15 degrees respectively. Throughout the entire period on appeal, the evidence also shows that the Veteran's ability to cross her legs was not impacted by her condition. As noted above, under DC 5253, a 10 percent rating is warranted for limitation of thigh/hip rotation such that an individual cannot toe-out more than 15 degrees on the affected leg, or a limitation of thigh/hip adduction such that an individual cannot cross their legs. A 20 percent disability rating is warranted for limitation of thigh/hip abduction such that motion is lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253. Thus, a compensable rating, from August 31, 2015 to December 4, 2019, and a rating higher than 10 percent, from December 5, 2019 to the present, is not warranted. 38 C.F.R. § 4.71a, DC 5253. Throughout the entire period on appeal, the Veteran's right hip is rated as noncompensable under DC 5253 based on noncompensable limitation of motion. The evidence shows limitation of abduction and adduction limited to, at worst, 35 degrees and 15 degrees respectively. The evidence also shows that the Veteran's ability to cross her legs was not impacted by her condition during the period. Thus, a compensable rating, throughout the entire period on appeal, is not warranted. 38 C.F.R. § 4.71a, DC 5253. The Veteran's 10 percent ratings under DC 5253 and 5251 for her left hip disability, and her 10 percent rating under DC 5252 for her right hip disability are based on painful motion under 38 C.F.R. § 4.59. The evidence shows that neither the left nor the right hip have limitation of extension, flexion, abduction, or adduction, which warrants higher ratings under DCs 5251, 5252, or 5353, at any time during the period on appeal. Throughout the entire period on appeal, a separate rating under DC 5255 is not warranted, for either hip, as there is no evidence of malunion, a false joint, nonunion or any current fractures. 38 C.F.R. § 4.71a, DC 5255. Separate ratings under DCs 5250 and 5254 are not warranted because the Veteran did not have ankylosis or hip flail joints. (CONTINUED ON THE NEXT PAGE.) Throughout the entire period on appeal, as the preponderance of the evidence is against the claim for higher ratings, the benefit of the doubt doctrine is not for application, and the Veteran's claim for increased ratings is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.