Citation Nr: 21070860 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 17-08 187 DATE: November 26, 2021 ORDER 1. From January 27, 2016, an increased rating of 40 percent (but not higher) is granted for a service-connected lumbosacral spine degenerative disc disease ("back condition") 2. From November 21, 2016, an initial rating of 20 percent is granted for a service-connected right hip condition. 3. From November 21, 2016, a separate initial rating of 10 percent is granted for limitation of extension of the right hip. 4. From November 21, 2016, a separate initial rating of 10 percent (but not higher) is granted for limitation of flexion of the right hip. REMANDED The claim for a total disability rating based upon individual unemployability (TDIU) rating is remanded. FINDINGS OF FACT 1. The April 2016 VA examiner failed to provide some required information; however, remanding orthopedic issues for attempts to obtain information retrospectively can often lead to a cycle of non-compliant examination reports and subsequent remands that can delay a claim for years without an effective resolution. Therefore, the Board will not place the burden of the examiner's failure on the Veteran by delaying the claim; instead, the Board will infer (as is not inconsistent with the rest of the evidence) that the missing measurements from the April 2016 examination would have supported an increased 40 percent disability rating for the Veteran's back condition. 2. The November 2016 VA examiner failed to provide some required information; however, remanding orthopedic issues for attempts to obtain information retrospectively can often lead to a cycle of non-compliant examination reports and subsequent remands that can delay the claim for years without an effective resolution. Therefore, the Board will not place the burden of the examiner's failure on the Veteran by delaying the claim; instead, the Board will infer (as is not inconsistent with the rest of the evidence of record) that the missing measurements from the November 2016 examination would have supported an increased 20 percent disability rating for the Veteran's hip condition. 3. The Board will also infer (as is not inconsistent with the rest of the evidence of record) that the missing measurements from the November 2016 VA hip examination would have supported a separate 10 percent rating for limitation of extension of the right hip. 4. The Board will also infer (as is not inconsistent with the rest of the evidence of record) that the missing measurements from the November 2016 VA hip examination would have supported a separate 10 percent rating (but no higher) for limitation of flexion of the right hip. CONCLUSIONS OF LAW 1. From January 27, 2016, the criteria have been met for a 40 percent rating for service-connected back condition. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5235-5243. 2. From November 21, 2016, the criteria have been met for a 20 percent rating for service-connected right hip condition. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5253. 3. From November 21, 2016, the criteria have been met for a separate initial 10 percent rating for limitation of extension of the right hip. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5251. 4. From November 21, 2016, the criteria have been met for a separate initial 10 percent rating for limitation of flexion of the right hip. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5252. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 2002 to June 2006. These matters are before the Board of Veteran's Appeals (Board) on appeal from May 2016 and January 2017 rating decisions of a Department of Veteran Affairs (VA) Regional Office (RO). In October 2019, a videoconference hearing was held before the undersigned. A transcript of the hearing is associate with the record. In a December 2019 decision, the Board denied the claims for (1) a rating in excess of 10 percent for the Veteran's service-connected right hip condition and (2) a rating in excess of 20 percent for the Veteran's service-connected back condition. The Veteran appealed these denials to the United States Court of Appeals for Veterans Claims (Veterans Court). In a May 2021 Joint Motion for Remand (JMR), the parties agreed that the VA erred by failing to uphold its duty to assist because 2016 VA examinations to assess the Veteran's right hip condition and back condition were legally inadequate to decide the claims. The parties also agreed that the Board erred by not addressing the reasonably raised issue of entitlement to a TDIU rating. In May 2021, the Veterans Court granted the motion for remand. The case has now returned to the Board. Increased Rating 1. From January 27, 2016, an increased rating of 40 percent (but not higher) for a service-connected back condition. Legal Criteria Disability ratings are determined by applying the 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 diagnostic codes "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, 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). 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. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, these diagnostic codes were not changed. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or, for favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. Id. at Note (2). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Id. All measured ranges of motion are to be rounded to the nearest five degrees. Id. at Note (4). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Factual Background At an April 2016 VA back examination, upon range of motion (ROM) testing, the Veteran displayed forward flexion of the back from 0 to 55 degrees, extension from 0 to 15 degrees, left lateral flexion from 0 to 30 degrees, right lateral flexion from 0 to 25 degrees, left lateral rotation from 0 to 30 degrees and right lateral rotation from 0 to 30 degrees. The Veteran reported pain throughout the ROM testing, but the conducting physician noted that it did not result in functional loss. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness of the lower back. The Veteran was able to perform repetitive use testing with at least three repetitions without any additional loss of function or ROM. The Veteran did not display any ankylosis of the thoracolumbar spine. The Veteran was not being examined immediately after repetitive use over time and the physician indicated that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The physician indicated that pain, fatigue, and lack of endurance would cause functional loss but was unable to discuss in terms of range of motion. The examination was not being conducted during a flare-up and the conducting physician opined that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups. The physician indicated that pain, fatigue, and lack of endurance would cause functional loss but was unable to describe in terms of ROM. An October 2019 disability benefits questionnaire (DBQ) indicates that the Veteran displayed forward flexion of the back from 0 to 60 degrees, extension from 0 to 10 degrees, left lateral flexion from 0 to 15 degrees, right lateral flexion from 0 to 15 degrees, left lateral rotation from 0 to 15 degrees and right lateral rotation from 0 to 15 degrees. The physician indicated that the Veteran was unable to perform repetitive use testing due to worsening back pain. The physician opined that pain from flare-ups or repetitive use over time would limit forward flexion of the back from 0 to 20 degrees, extension from 0 to 10 degrees, left lateral flexion from 0 to 10 degrees, right lateral flexion from 0 to 10 degrees, left lateral rotation from 0 to 10 degrees, and right lateral rotation from 0 to 10 degrees. The physician indicated there was no ankylosis of the thoracolumbar spine. Analysis The Board acknowledges that while the April 2016 VA examiner indicated that the Veteran's flare-ups and repetitive use of the back cause functional loss, they failed to describe the functional loss in terms of ROM. See Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Accordingly, the Board cannot assign this opinion significant probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board elects to not remand this matter for a retrospective opinion because of the impracticality of obtaining such evidence as might be needed to retrospectively address the deficiencies of the various examinations; remanding these issues can often lead to a cycle of non-compliant examination reports and subsequent remands that can delay the claim for years without an effective resolution. The Board will not place the burden on the Veteran for the fact that the examiners did not obtain all the necessary information at the time of the examination. Rather, the Board will infer that any missing information from the April 2016 examination would support the next highest rating (40 percent) for the period on appeal. However, the Board also finds that a still higher (50 percent) disability rating is not warranted. There is no probative evidence of record that there was ankylosis of the thoracolumbar spine during the period on appeal. Accordingly, from January 27, 2016, an increased rating of 40 percent (but not higher) for service-connected back condition. 2. From November 21, 2016, an initial rating of 20 percent for service-connected right hip condition is granted. Legal Criteria Hip disabilities are rated under Diagnostic Codes 5250 to 5255. Diagnostic Code 5250, ankylosis of the hip is rated from 60 percent to 90 percent, depending on whether in favorable or unfavorable positions. Notably, ankylosis means the joint is fixed in place without ability to be moved at all. The Veteran has not displayed ankylosis of the right hip during any period on appeal and so this diagnostic code is not for application. Under Diagnostic Code 5251, a 10 percent disability rating is warranted when extension of the thigh is limited to 5 degrees. Under Diagnostic Code 5252, a 10 percent disability rating is warranted when flexion of the thigh is limited to 45 degrees, and a 20 percent disability rating is warranted when flexion is limited to 30 degrees. For reference, normal range of motion of the hip is from 0 to 125 degrees, and normal abduction of the hip is from 0 to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5253, a 10 percent rating is warranted for limitation of rotation of the affected leg such that the leg cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction such that the legs cannot be crossed. A maximum 20 percent rating is warranted for limitation of abduction such that motion is lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. Diagnostic Codes 5254 and 5255 are appropriate when there is flail joint or impairment of the femur. However, the Veteran has not been found to have fracture, malunion, or nonunion of the femur. He has also not been diagnosed with a flail hip joint. As such, these Diagnostic Codes are not for application. Factual Background At a November 2016 VA hip examination, upon range of motion (ROM) testing, the Veteran flexion of the right hip from 0 to 70 degrees, extension from 0 to 50 degrees, abduction from 0 to 30 degrees, and adduction from 0 to 10 degrees. The conducting physician indicated that the Veteran's adduction was not limited such that he could not cross his legs. The Veteran displayed external rotation of the right hip from 0 to 50 degrees and internal rotation from 0 to 10 degrees. The physician indicated that pain was noted on examination and that the reduction of the Veteran's flexion decreased his ability to pick things up from the floor or bend over to tie his shoe. There was evidence of pain with weightbearing and no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Upon repetitive use, there was no reduction of ROM and the Veteran's adduction was not limited such that the Veteran could not cross his legs. The Veteran was not being examined immediately after repetitive use over time, but the physician indicated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The physician indicated that pain would cause functional loss and limit his right hip flexion from 0 to 55 degrees, extension from 0 to 40 degrees, abduction from 0 to 40 degrees, and adduction from 0 to 10 degrees. The physician further opined that the Veteran's external rotation of the right hip would be limited from 0 to 30 degrees and internal rotation would be limited from 0 to 10 degrees. The Veteran was not being examined during a flare-up, but the physician opined that the examination was medically consistent with the Veteran's statements describing functional loss during flare-ups. The physician opined that pain from a flare-up would cause functional loss of the right hip but was unable to describe in ROM. The Veteran did not display malunion or nonunion of his femur, flail hip joint or leg length discrepancy. The physician indicated there was no ankylosis of the right hip. A November 2019 DBQ examination indicates that the Veteran displayed flexion of the right hip from 0 to 100 degrees, abduction from 0 to 45 degrees, adduction from 0 to 25 degrees, external rotation from 0 to 35 degrees and internal rotation from to 20 degrees. Extension of the right hip could not be performed due to pain. After repetitive use of the right hip the Veteran's flexion was reduced by 5 to 10 degrees due to pain. The physician indicated that there was pain when the right hip was used in weight bearing and non-weight bearing. The physician opined that pain from flare-ups or repetitive use over time would limit flexion of the right hip from 0 to 100 degrees but did not provide estimates for the extension, abduction, adduction, external, or internal rotation. The Veteran did not display malunion or nonunion of his femur, flail hip joint or leg length discrepancy. The examiner did not report that the Veteran had any ankylosis of the right hip. Analysis The Board acknowledges that while the November 2016 VA examiner indicated that the Veteran's flare-ups of the right hip causes functional loss, they failed to describe the functional loss in terms of ROM. See Sharp supra. Accordingly, the Board cannot assign this opinion significant probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board elects to not remand this matter for a retrospective opinion because of the impracticality of obtaining such evidence as might be needed to retrospectively address the deficiencies of the various examinations; remanding these issues can often lead to a cycle of non-compliant examination reports and subsequent remands that can delay the claim for years without an effective resolution. The Board will not place the burden on the Veteran for the fact that the examiners did not obtain all the necessary information at the time of the examination. Rather, the Board will infer that any missing information from the November 2016 examination would support the next highest rating (20 percent) for the period on appeal. The Board notes that this is the highest rating available under DC 5253. Accordingly, from November 21, 2016, an initial rating of 20 percent for service-connected right hip condition is granted. 3. From November 21, 2016, a separate initial rating of 10 percent for limitation of extension of the right hip is granted. The Board will also infer that the missing information from the November 2016 VA examination would have supported a 10 percent rating under DC 5251 for limitation of extension of the right hip. The Board notes that this is the highest rating available under DC 5251. Accordingly, from November 21, 2016, a separate initial rating of 10 percent for limitation of extension of the right hip is granted. 4. From November 21, 2016, a separate initial rating of 10 percent for limitation (but not higher) of flexion of the right hip is granted. The Board will also infer that the missing information from the November 2016 VA examination would have supported a 10 percent rating under DC 5252 for limitation of flexion of the right hip. However, the Board finds that a still higher (20 percent) disability rating is not warranted because the Veteran has not provided evidence that the flexion of his right hip would be limited to 30 degrees at any point during the appeal. Accordingly, from November 21, 2016, a separate initial rating of 10 percent for limitation (but not higher) of flexion of the right hip is granted. [CONTINUED ON NEXT PAGE] REASONS FOR REMAND The claim for a TDIU rating is remanded. In the May 2021 JMR, the parties agreed that the November 2016 VA hip examination raised the issue of a TDIU rating, noting that the Veteran could not work, partially due to not being able to stand and walk for periods due to hip pain. Additionally, a February 2017 private medical record indicated that the Veteran's lower back pain often stops him from working. The record reasonably raises the issue of entitlement to a TDIU rating and remand is required to develop evidence regarding this matter. See Rice v. Shinseki, 22 Vet. App. 447 (2009). While a formal application for TDIU is not required, a VA Form 21-8940 should be requested to ensure that all factors for consideration in such a claim have been addressed. The matters are REMANDED for the following action: 1. Please note that this Veteran's case has been advanced on the docket and, by law, ALL remanded claims must be processed expeditiously. 2. Associate updated VA treatment records with the claims file. 3. Contact the Veteran and ask that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 4. Ask the Veteran to identify employment records concerning his absences from work, and to supply appropriate releases to permit VA to obtain employment records if required and take steps to obtain these records if they are not provided to VA by the Veteran. 5. The Veteran should be advised that a statement from his employer is acceptable in place of complete records. 6. Following the above development, readjudicate the matter on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the issue to the Board following an appropriate period for response. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.