Citation Nr: 21070927 Decision Date: 11/27/21 Archive Date: 11/27/21 DOCKET NO. 17-29 047 DATE: November 27, 2021 ORDER Entitlement to a compensable evaluation for left hip arthrosis residual to femur fracture (associated with residuals of left femur fracture, including injury to the anterior cruciate ligament of the left knee and to include left hip with crepitus and instability) is denied. Entitlement to a higher rating for residuals of left femur fracture, including injury to the anterior cruciate ligament of the left knee and to include left hip with crepitus and instability, currently rated 20 percent, is denied. FINDINGS OF FACT 1. The Veteran's left hip arthrosis residual to femur fracture is manifested by painful and limited motion. 2. The symptoms attributable to the Veteran's left hip arthrosis cannot be separated from the symptoms attributable to his residuals of left femur fracture disability. 3. The Veteran's residuals of left femur fracture are manifested by no more than moderate left knee and hip impairment. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for left hip arthrosis residual to femur fracture (associated with residuals of left femur fracture, including injury to the anterior cruciate ligament of the left knee and to include left hip with crepitus and instability) are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003. 2. The criteria for a higher rating for residuals of left femur fracture, including injury to the anterior cruciate ligament of the left knee and to include left hip with crepitus and instability, currently rated 20 percent, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1956 to December 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge; a transcript is of record. The appeal was remanded by the Board in June 2018, October 2019, and September 2020 for further development. There has been substantial compliance with the September 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). INCREASED RATINGS Historically, the Veteran was service-connected for residuals of left femur fracture, including injury to the anterior cruciate ligament of the left knee and to include left hip with crepitus and instability. This disability was rated 20 percent under DC 5255 (femur, impairment of) effective March 7, 2003. He was also service-connected for degenerative changes left knee/hip associated with residuals of left femur fracture, including injury to the anterior cruciate ligament of the left knee and to include left hip with crepitus and instability rated 10 percent under DC 5003 (arthritis, degenerative) from October 10, 2003. The Veteran filed a claim for a higher rating for his 'left hip disability' in February 2012. In the September 2013 rating decision on appeal, the RO indicated "[s]ervice connection for left hip arthrosis residual to femur fracture has been established as related to the service-connected disability of residuals of left femur fracture, including injury to the anterior cruciate ligament of the left knee and to include left hip with crepitus and instability." The RO indicated that it was assigning a noncompensable rating, effective from September 16, 2013, under DC 5003. The Codesheet reflects that the RO discontinued the previous 10 percent rating under DC 5003, for degenerative changes left knee/hip associated with residuals of left femur fracture, including injury to the anterior cruciate ligament of the left knee and to include left hip with crepitus and instability, effective September 16, 2013. In this same rating decision, the RO also awarded a separate 10 percent rating for 'left knee arthrosis with limitation of extension (previously rated as degenerative changes left knee/hip) as secondary to the service-connected disability of residuals of left femur fracture, including injury to the anterior cruciate ligament of the left knee and to include left hip with crepitus and instability' under DC 5003-5261. The RO also awarded a separate noncompensable (0 percent) rating for 'left knee arthrosis with limitation of flexion' under DC 5003-5260. Finally, the 20 percent rating for 'residuals of left femur fracture, including injury to the anterior cruciate ligament of the left knee and to include left hip with crepitus and instability' evaluated under DC 5255 was continued in the September 2013 rating decision. The Veteran appealed the left hip and bilateral knee ratings from the September 2013 rating decision. In the May 2017 statement of the case, the RO did not include entitlement to a higher rating for the femur fracture as a separate issue, however, in adjudicating the left hip arthrosis it did indicate that the medical evidence did not show compensable symptoms that would warrant an evaluation increase and that a separate 20 percent disabling evaluation was already assigned for residuals of left femur fracture that impact the hip. The Board denied higher ratings for the left and right knee disabilities in a June 2018 decision, which is now final. 38 U.S.C. § 7104. The question remaining then, is to determine what the appropriate left hip disability ratings are. Disabilities of the hips are rated under Diagnostic Codes 5250 through 5255 of 38 C.F.R. § 4.71a. Under DC 5003, arthritis established by X-ray findings is rated on the basis of limitation of motion of the affected joint or joints. When however, the limited motion of the specific joint or joints involved would be noncompensable under the appropriate diagnostic codes, a 10 percent rating is assigned for each involved major joint or group of minor joints affected by limitation of motion, to be combined, not added, under diagnostic code 5003. 38 C.F.R. § 4.71a, DCs 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, however, arthritis is rated as 10 percent disabling when shown by X-ray evidence of the involvement of two or more major joints or two or more minor joint groups, or as 20 percent disabling when show by X-ray evidence of the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Id. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders, to include the criteria for rating impairment of the femur under DC 5255. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. Therefore, the Board will consider the Veteran's claim under the former criteria prior to February 7, 2021 and both the former and revised rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The amended criteria of DC 5003 provide criteria for degenerative arthritis, other than post-traumatic rather than for arthritis (hypertrophic or osteoarthritis) under the pre-amended version of DC 5003. However, in terms of the rating criteria, they have remained the same as the pre-amendment version. The former version of DC 5255 (femur, impairment of) provided a 20 percent rating for moderate knee or hip disability; and a 30 percent rating for marked knee or hip disability. A 60 percent rating required either a fracture of the surgical neck of the femur with false joint or a fracture of the shaft or anatomical neck of the femur with nonunion, but without loose motion, and with weightbearing preserved with the aid of a brace. An 80 percent rating required a fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion (spiral or oblique fracture). See 38 C.F.R. § 4.71a , DC 5255. Under the revised version, the criteria for 60 and 80 percent ratings are unchanged. However, malunion of the femur is to be evaluated under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, or 5250-5254 for the hip, whichever results in the highest evaluation. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2016); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14. Although it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran underwent left hip evaluations in July 2013, November 2015, May 2019, December 2019, and August 2021. The Board previously found the first four evaluations insufficient for rating purposes. The 2013 examination report did not include range of motion testing. The exams in 2015 and 2019 did not include range of motion testing in active, passive, weight-bearing and without weight-bearing states. In the July 2013 VA examination for hip and thigh conditions, the Veteran was diagnosed with left hip arthrosis residual to left femur fracture. The Veteran reported an increase in the interval of pain and stiffness in the hip. He stated his hip joint swells occasionally and gets warm every 3-4 months. He reported flare-ups about once a week without any particular provoking factors, that lasted from 30 minutes to 2 days. During flare-ups, he had loss of function due to increased pain, weakness, and fatigue, that limit his motion in the hip and knee. In a June 2014 VA treatment record, the Veteran reported chronic left hip pain rated at 8/10. Physical examination revealed limited range of motion of left hip. The Veteran submitted a disability benefits questionnaire completed by his private clinician in November 2015. The clinician noted the Veteran reported pain with ambulation in the left hip, but he denied flare-ups that impaired the function of his hip. On physical examination, gentle range of motion did not result in significant pain. The clinician did not provide any specific range of motion findings. There was no malunion or nonunion of femur, flail hip joint, or leg length discrepancy. During the March 2018 Board hearing, the Veteran testified that he had continuous left hip pain that radiated. In the May 2019 VA examination for hip and thigh conditions, the Veteran was diagnosed with osteoarthritis. He reported intermittent pain and tenderness in the left hip, and that pain increased with walking. He did not report any flare-ups or functional loss. The left hip range of motion was limited to 110 degrees in flexion, 15 degrees in extension, 40 degrees in abduction, 30 degrees in adduction, 30 degrees in external rotation, and 20 degrees in internal rotation. The adduction was not limited to where he could not cross his legs. No pain or crepitus was noted. There was no pain with weight-bearing. Moderate tenderness was noted at the greater trochanter of the left leg. No additional limitation was noted following repetitive use testing. Muscle strength was 5/5 without atrophy. There was no ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. The Veteran used a cane occasionally. The December 2019 VA examination for hip and thigh conditions noted a diagnosis of degenerative arthritis. The Veteran reported dull pain without radiation. He stated long walks make the condition worse. He did not report any flare-ups or functional loss. The left hip range of motion was limited to 95 degrees in flexion, 30 degrees in extension, 35 degrees in abduction, 20 degrees in adduction, 60 degrees in external rotation, 35 degrees in internal rotation. The adduction was not limited such that he could not cross his legs. No pain was noted on exam. There was no tenderness or crepitus. No additional limitation was noted following repetitive use testing. Muscle strength was 5/5. There was no ankylosis, malunion or nonunion of femur, or flail hip joint. There was leg length discrepancy which was due to a healed fracture deformity in the mid left femoral shaft. Regular use of cane and occasional use of walker were noted. In the August 2021 VA contract examination, the Veteran was diagnosed with left hip osteoarthritis and left hip arthrosis residual from femur fracture. The Veteran reported flare-ups that occurred twice a week, lasting 20 minutes to 3 hours, manifested by pain and stiffness in the left hip. He stated he cannot stand up and walk until the pain and stiffness resolves. He also reported functional loss described as "I am unable to walk for a while." Abnormal range of motion itself contributed to functional loss in that it hinders climbing and limits walking. The left hip range of motion was limited to 85 degrees in flexion, 10 degrees in extension, 20 degrees in abduction, 20 degrees in adduction, 20 degrees in external rotation, and 10 degrees in internal rotation. Flexion and external rotation exhibited pain. There was evidence of pain on active motion, but it did not result in or cause functional loss. The limitation of adduction did not prevent him from crossing his legs. There was no crepitus or localized tenderness. He was able to perform repetitive-use testing at least three times without additional loss of function or range of motion. The examiner noted the procured evidence did not suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with repeated use over time or during flare-ups. Regular use of cane and occasional use of motorized scooter were noted. Analysis 1. Entitlement to a compensable evaluation for left hip arthrosis residual to femur fracture (associated with residuals of left femur fracture, including injury to the anterior cruciate ligament of the left knee and to include left hip with crepitus and instability) is denied. After careful review of the evidence, the Board finds that a compensable rating is not warranted for left hip arthrosis. The Veteran's left hip arthrosis is manifested by pain and limitation of motion that is not compensable under DCs 5251-5253. During the appeal period under review, range of motion was limited to, at worst, flexion to 95 degrees, extension to 15 degrees, abduction 35 degrees, adduction to 20 degrees, external rotation to 30 degrees, and internal rotation to 10 degrees. At no point did the Veteran's limitation of adduction prevent him from being able to cross his legs. The range of motion measurements noted during the appeal period are insufficient to warrant a compensable rating for limitation of motion- including flexion, extension, abduction, adduction, and rotation. A compensable rating based on limitation of extension requires limitation to 5 degrees (DC 5251) and a compensable rating based on limitation of flexion requires limitation to 45 degrees (DC 5252). A compensable rating based on limitation of rotation requires an inability to toe-out more than 15 degrees; a compensable rating based on limitation of adduction requires an inability to cross legs; and compensable rating based on limitation of abduction requires motion lost beyond 10 degrees (DC 5253). See 38 C.F.R. § 4.71a, Diagnostic Codes 5251-5253. The clinical evidence does not reflect left hip ankylosis either. Thus, a rating under DC 5250 is not appropriate. The Veteran is, however, separately rated at 20 percent for residuals of left femur fracture under DC 5255. This diagnostic code contemplates painful motion and functional impairment in the left hip as a result of femur impairment involving the hip and/or knee. The Veteran is also in receipt of separate, compensable rating for his left knee limited motion (extension) under DC 5261. To assign an additional, separate compensable rating for pain and noncompensable motion in the left hip under DC 5003 (for arthritis/arthrosis) would amount to pyramiding. The Veteran's hip disability manifestations pain and limited motion have not essentially changed and are considered in his current evaluation of 20 percent for the service-connected femur fracture. Essentially, degenerative joint disease is rated based on pain and limitation of motion, which are the symptoms being considered and rated under DC 5255. Assigning a compensable evaluation for the Veteran's left hip arthrosis under DC 5003, even based on DeLuca precepts, in this particular case would constitute pyramiding. Such is to be avoided. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Given the above, a compensable rating for left hip arthrosis residual to femur fracture, under DC 5003, is not warranted. 2. Entitlement to a higher rating for residuals of left femur fracture, including injury to the anterior cruciate ligament of the left knee and to include left hip with crepitus and instability, currently rated 20 percent, is denied. A rating higher than 20 percent is also not warranted for residuals of left femur fracture, including injury to the anterior cruciate ligament of the left knee and to include left hip with crepitus and instability, under the former or revised DC 5255. The former version of DC 5255 allows a 30 percent rating for malunion of femur with marked knee or hip disability. Review of the evidence of record, however, fails to reflect a marked left hip disability. The Veteran's use of assistive devices, difficulty with prolonged walking, standing, or sitting is acknowledged, but this is contemplated in the 20 percent rating. Further, as shown above, the physical examinations during the appeal revealed no more than a minimal to moderate degree of limited left hip motion, even accounting for painful motion. The Veteran also consistently denied flare-ups in his left hip. Under the revised DC 5255 criteria, malunion of the femur is to be evaluated under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, or 5250-5254 for the hip, whichever results in the highest evaluation. In this case, rating the residuals of left femur fracture would be highest using the knee codes- and DC 5261 specifically- for limited extension. The Veteran's left knee arthrosis has been productive of painful motion with limited extension (more nearly approximating 10 degrees). There has not been instability or ankylosis such that compensable ratings under DCs 5257 or 5256. There also is not limited left knee flexion that would warrant a compensable rating under DC 5260. The evidence of record also does not show ankylosis or flail joint. Thus, compensable ratings under DCs 5250 or 5254 are not warranted. Finally, from February 7, 2021, the Veteran's left hip arthrosis is manifested by pain and limitation of motion that is not compensable under DCs 5251-5253. The August 2021 VA examination report reflects that the left hip range of motion was limited to, at worst, flexion to 85 degrees, extension to 10 degrees, abduction 20 degrees, adduction to 20 degrees, external rotation to 20 degrees, and internal rotation to 10 degrees. At no point did the Veteran's limitation of adduction prevent him from being able to cross his legs. Given the above, a rating higher than 20 percent for residuals of left femur fracture, including injury to the anterior cruciate ligament of the left knee and to include left hip with crepitus and instability is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jake Choi, Associate Counsel 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.