Citation Nr: 21067862 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-61 840 DATE: November 5, 2021 ORDER For the period prior to August 13, 2019, entitlement to an initial rating greater than 10 percent for limitation of flexion of the right hip is denied. From August 13, 2019, entitlement to a compensable rating for limitation of flexion of the right hip is denied. For the period prior to August 13, 2019, entitlement to a rating of 10 percent, but no higher, for limitation of right hip extension is granted. From August 13, 2019, entitlement to a rating greater than 10 percent for limitation of extension of the right hip is denied. For the entire period on appeal, entitlement to a 10 percent rating, but no higher, for limitation of rotation of the right hip is granted. FINDINGS OF FACT 1. For the period prior to August 13, 2019, the Veteran's right hip disability resulted in painful motion, but not flexion limited to 45 degrees. 2. From August 13, 2019, the Veteran's right hip disability resulted in painful motion, but not flexion limited to 45 degrees. 3. For the period prior to August 13, 2019, the Veteran's right hip disability resulted in painful motion, with extension limited to 5 degrees. 4. From August 13, 2019, the Veteran's right hip disability resulted in painful motion, with extension limited to 5 degrees. 5. For the period on appeal, the Veteran's right hip disability resulted in limitation of rotation to 15 degrees. CONCLUSIONS OF LAW 1. For the period prior to August 13, 2019, the criteria for an initial rating greater than 10 percent for limitation of flexion of the right hip are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code (DC) 5003-5252. 2. From August 13, 2019, the criteria for a compensable rating for limitation of flexion of the right hip are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, DC 5003-5252. 3. For the period prior to August 13, 2019, the criteria for a rating of 10 percent, but no higher, for limitation of extension of the right hip are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, DC 5003-5251. 4. From August 13, 2019, the criteria for a rating greater than 10 percent for limitation of extension of the right hip are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, DC 5003-5251. 5. For the period on appeal, the criteria for an initial rating of 10 percent, but no higher, for limitation of rotation of the right hip have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.71a, DC 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1991 to September 1997, with prior reserve service. He appealed a September 2015 rating decision by the Agency of Original Jurisdiction (AOJ). The Veteran's right hip appeal was remanded by the Board in March 2019 and June 2021. In an October 2021 rating decision, the AOJ granted service connection for left knee status post meniscus repair, left knee instability, and a left knee scar. The Veteran's left knee claims have been granted in full and are no longer on appeal. Lastly, in August 2014 the Veteran filed a claim of entitlement to a total disability rating based on individual unemployability (TDIU). Ordinarily, when evidence of record suggests the Veteran may be unable to work due in part to his service-connected disability, the issue of TDIU is deemed to be raised and before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). In this case, however, the Veteran contacted the AOJ to withdraw the claim. See September 2014 VA Form 21-0820. Additionally, the record reflects the Veteran has been employed throughout the appeal period. See May 2016 and May 2019 VA primary care notes. Accordingly, a claim for TDIU is not currently before the Board. 1. Right Hip Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. In cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. By way of background, service connection for the Veteran's right hip disability was granted in a September 2015 rating decision. The AOJ assigned a 10 percent rating under DC 5003-5252, based on limitation of flexion, and a noncompensable rating under DC 5003-5253, based on impairment of the thigh. In an August 2020 Supplemental Statement of the Case, the AOJ assigned a 10 percent rating under DC 5003-5251 based on limitation of extension from August 13, 2019 and discontinued the Veteran's 10 percent rating based on limitation of flexion effective that date. DC 5003 provides that degenerative arthritis is rated based upon the nature and extent of any limitation of motion and provides that if the limitation of motion of the joint involved is noncompensable, a rating of 10 percent is warranted. 38 C.F.R. § 4.71a, DC 5003. Under DC 5251 (limitation of extension of the thigh), a 10 percent rating is assigned with extension limited to 5 degrees. Under DC 5252 (limitation of flexion of the thigh), a 10 percent rating is assigned with flexion limited to 45 degrees; a 20 percent rating is assigned with flexion limited to 30 degrees; a 30 percent rating is assigned with flexion limited to 20 degrees; and a 40 percent rating is assigned with flexion limited to 10 degrees. Under DC 5253, pertaining to impairment of the thigh, a 10 percent rating is warranted for limitation of adduction of the thigh such that the legs cannot be crossed or there is limitation of rotation such that it is not possible to toe out more than 15 degrees; a 20 percent rating requires limitation of abduction with motion lost beyond 10 degrees. 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). 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. Here, the new regulations do not affect the Veteran's case as to a higher rating for his right hip disability. Preliminarily, the Board notes that previous remands determined that hip examinations in January 2016 and August 2019 were inadequate for rating purposes. See March 2019 Board remand at pg. 14, and June 2021 Board remand at pg. 10. Additionally, the Board observes that the November 2014, January 2016, and August 2019 examination reports did not offer estimates of the Veteran's limitation of motion after repeated use over time. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court of Appeals for Veterans Claims (Court) held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Although the November 2014, January 2016, and August 2019 examination reports were not compliant with the Court's guidance in Sharp in that the examiner declined to estimate any additional loss of motion during repeated use over time, the August 2021 range of motion findings are Sharp compliant. Given these circumstances, the Board will consider the applicability of the August 2021 findings for the entire appeal period, as well as the findings of the prior examination reports to the extent they may support the Veteran's claim for a higher rating. During the November 2014, January 2016, August 2019, and August 2021 hip examinations, the Veteran reported throbbing pain that was worse with walking and ascending or descending stairs. The examination reports show that throughout the appeal period, the Veteran's flexion was limited to no less than 60 degrees. See August 2021 examination report. As the Veteran has never had limitation of flexion to a compensable degree, entitlement to a rating greater than 10 percent prior to August 13, 2019 is not warranted. Moreover, entitlement to a compensable rating from August 13, 2019 is also not warranted. With respect to extension, the November 2014 hip examination noted the Veteran had extension limited to greater than 5 degrees. The January 2016 examination report found that the Veteran maintained extension from 0 to 30 degrees. The August 2019 report noted the Veteran had extension from "0 to 0 degrees." Finally, the August 2021 examination report noted the Veteran had extension from 0 to 25 degrees. The November 2014 hip examination indicates the Veteran compensable limitation of extension at that time. Given this finding, a rating of 10 percent for limitation of extension is warranted for the period prior to August 13, 2019. However, as 10 percent is the maximum rating available based on limitation of extension, a rating greater than 10 percent is not warranted at any time. In reaching these conclusions, the Board notes that the Veteran's rating under DC 5252 has been in effect since August 2014. Hence, the rating is not protected, and there is no reduction in rating or severance of service connection from a change in the DC because of the Board's action. Cf. Murray v. Shinseki, 24 Vet. App. 420, 428 (2011); see also Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). In Murray, the Court found that a change in DC for a protected disability rating that was in effect for 20 years or more could constitute an impermissible rating reduction under 38 C.F.R. § 3.951(b). 24 Vet. App. at 428. In Read, the Federal Circuit found service connection was not severed, as contemplated by 38 C.F.R. § 3.957 that protects service connection in effect for 10 years or more, simply because a DC associated with a disability was corrected to more accurately determine the benefit to which a veteran may be entitled. 651 F.3d at 1302. Moreover, this change in DC does not amount to a reduction, as the Veteran receives an additional 10 percent rating for the period prior to August 13, 2019 because of this decision. As to impairment of the thigh, although the August 2019 examiner indicated that the Veteran's adduction was limited such that he could not cross his legs, an August 2020 addendum opinion found that the examiner's notation was incorrect, given that the Veteran maintained full adduction based on range of motion testing. The August 2021 examiner also found that the Veteran's adduction was not so limited that he could not cross his legs. However, the August 2021 range of motion findings indicated that after repeated use over time, the Veteran's external rotation would be limited to 15 degrees. Given that the August 2021 examiner's findings provide the only estimate of the Veteran's limitation of motion after repetitive use testing, the Board finds a rating of 10 percent for impairment of the thigh based on limitation of rotation to 15 degrees is warranted for the period on appeal. 38 C.F.R. § 4.71a, DC 5253. However, at no time has abduction been shown to be limited to 10 degrees; thus, a rating greater than 10 percent based on impairment of the thigh is not warranted. Although the August 2019 examiner marked a box indicating that the Veteran had "less movement than normal due to ankylosis, adhesions, etc.," ankylosis has not been shown at any point. Moreover, the medical evidence does not suggest that the Veteran's right hip disability has resulted in flail joint or impairment of the femur. As such, there is no basis for evaluating the Veteran's disability under DCs 5250, 5254 and 5255. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.