Citation Nr: A21019014 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 200811-103068 DATE: November 30, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for left hip osteoarthritis based on limitation of flexion from July 8, 2019 to October 22, 2019, is denied. Entitlement to an initial compensable disability rating for left hip osteoarthritis based on limitation of extension from July 8, 2019 to October 22, 2019, is denied. Entitlement to an initial compensable disability rating for left hip osteoarthritis based on limitation of abduction and adduction from July 8, 2019 to October 22, 2019, is denied. REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hand disability is remanded. Entitlement to service connection for a right hand disability is remanded. Entitlement to service connection for a left upper extremity disability is remanded. Entitlement to service connection for a right upper extremity disability is remanded. Entitlement to service connection for Barrett's esophagus is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for hiatal hernia is remanded. Entitlement to service connection for pancreatitis is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's left hip disability was manifested by limitation of flexion, extension, abduction, adduction, external rotation, and internal rotation with painful motion in flexion, extension, abduction, and adduction. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for left hip osteoarthritis based on limitation of flexion from July 8, 2019 to October 22, 2019 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5252 (2020). 2. The criteria for an initial compensable disability rating for left hip osteoarthritis based on limitation of extension from July 8, 2019 to October 22, 2019 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5251 (2020). 3. The criteria for an initial compensable disability rating for left hip osteoarthritis based on limitation of abduction and adduction from July 8, 2019 to October 22, 2019 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5253 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from January 1980 to September 1981 and from November 1982 to April 1987, with a period of active duty for training (ACDUTRA) from April 1979 to August 1979. In December 2019, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an October 2019 decision. In January 2020, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior October 2019 decision. Therefore, the Board may only consider the evidence of record at the time of the October 2019 decision and any evidence submitted during an applicable evidentiary window. In the August 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. In August 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board virtual hearing. A copy of the transcript is of record. Therefore, the Board may only consider the evidence of record at the time of the October 2019 decision on appeal, as well as any evidence submitted by the Veteran or his representative at the August 2021 hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim of entitlement to increased initial ratings for his service-connected left hip disability, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. As the Board is remanding the claims of entitlement to service connection for a right hip disability, bilateral hand disability, bilateral upper extremity disability, Barrett's esophagus, GERD, hiatal hernia, and pancreatitis for further development, this additional evidence will be considered by the RO in the adjudication of those claims. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App. 119 (1999). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran's benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to an initial disability rating in excess of 10 percent for left hip osteoarthritis based on limitation of flexion from July 8, 2019 to October 22, 2019. 2. Entitlement to an initial compensable disability rating for left hip osteoarthritis based on limitation of extension from July 8, 2019 to October 22, 2019. 3. Entitlement to an initial compensable disability rating for left hip osteoarthritis based on limitation of abduction and adduction from July 8, 2019 to October 22, 2019. The Veteran contends that increased initial ratings are warranted for his left hip osteoarthritis (hereinafter "left hip disability"). Here, the period on appeal begins with the date of the Veteran's application for service connection, or July 8, 2019, and ends with the date of the October 22, 2019 rating decision. The Veteran's left hip disability is rated at 10 percent under 38 C.F.R. § 4.71a Diagnostic Code (DC) 5252 for limitation of flexion based on painful motion. His left hip disability is also rated as noncompensable under DCs 5251 and 5253 for noncompensable limitation of extension and abduction and adduction. Under DC 5251, limitation of extension of the thigh to 5 degrees warrants a 10 percent rating. Under DC 5252, limitation of flexion of the thigh to 45 degrees warrants a 10 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; flexion limited to 20 degrees warrants a 30 percent rating; and flexion limited to 10 degrees warrants a 40 percent rating. Impairment of the thigh is rated under DC 5253. Limitation of rotation of the thigh, where one cannot toe-out more than 15 degrees in the affected leg warrants a 10 percent rating. Limitation of adduction of the thigh where one cannot cross the legs also warrants a 10 percent rating. Limitation of abduction of the thigh with motion lost beyond 10 degrees warrants a 20 percent rating. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the 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 rating schedule for evaluating musculoskeletal disabilities was amended effective February 7, 2021, the appeal period closed on October 22, 2019, and the Board's review is limited to evidence of record at the time of the October 2019 decision and evidence submitted at the hearing or within 90 days of the hearing. Because the rating schedule changed after the period on appeal, the new criteria are inapplicable. Turning to the evidence of record, VA treatment records dated prior to the appeal period reflect that the Veteran complained of chronic left hip pain. In January 2019, he reported difficulty with his balance, which he attributed to his left hip, but he denied any falls. Upon examination, the Veteran's gait and balance appeared normal. In May 2019, his gait was noted to be strong and steady. VA treatment records dated during the appeal period reflect that the Veteran continued to experience chronic left hip pain. A September 2019 VA hip and thigh examination report reflects a diagnosis of left hip osteoarthritis. The Veteran reported pain in his left hip which had progressively worsened since onset in December 2000. He reported flare-ups of increased pain two to three times daily lasting for hours, brought on by prolonged standing and relieved by rest. He reported functional loss or impairment in walking, standing, and bending. Upon examination, active and passive flexion of the left hip was from zero to 90 degrees, extension was from zero to 20 degrees, abduction was from zero to 30 degrees, adduction was from zero to 15 degrees, external rotation was from zero to 50 degrees, and internal rotation was from zero to 30 degrees. Adduction was limited such that the Veteran could not cross his legs, and decreased range of motion contributed to functional loss such that mobility was limited. Pain was noted in all planes except for external and internal rotation. There was localized tenderness or pain on palpation and evidence of pain in weight-bearing and nonweight-bearing. Observed repetitive use did not cause additional loss of function or range of motion. Pain and lack of endurance significantly limited functional ability with repeated use over time and during flare-ups, resulting in disturbance of locomotion and interference with standing due to pain with standing and walking, but did not further reduce range of motion. The examination was otherwise normal with regards to the left hip. Upon review of the evidence of record, the Board finds that a disability rating in excess of 10 percent is not warranted for the Veteran's left hip disability. Here, VA rated the Veteran's left hip disability at 10 percent under DC 5252 for painful but noncompensable limitation of flexion. The evidence of record shows that flexion was limited to, at most, 90 degrees. A higher, 20 percent, evaluation is not warranted under DC 5252 unless flexion is limited to 30 degrees. The Board has considered whether higher or separate ratings are warranted under DC 5251 or 5253. However, the evidence of record does not show extension limited to 5 degrees; thus, a rating under 5251 is not warranted. As it pertains to DC 5253, the Board acknowledges that while VA found that adduction was not limited such that the Veteran could not cross his legs, the evidence of record, specifically the September 2019 VA examination report, reflects that adduction was limited such that the Veteran could not cross his legs. Under DC 5253, limitation of adduction such that one cannot cross the legs warrants a 10 percent evaluation. However, in this instance, awarding a separate 10 percent evaluation under DC 5253 for compensable limitation of adduction due to pain such that he could not cross his legs in addition to a 10 percent evaluation for noncompensable limitation of flexion based on pain would constitute pyramiding, as painful motion is already considered under DC 5252. If the Board were to reassign and evaluate the Veteran's left hip disability under DC 5253 for compensable limitation of adduction with painful motion, to receive a separate evaluation under DC 5252, the Veteran's left hip disability would need to be manifest by limitation of flexion to at least 45 degrees or less. Here, the evidence of record reflects that the Veteran's left hip flexion is limited to, at most, 90 degrees. Additionally, the evidence of record does not show that left hip abduction was limited to 10 degrees or less or that rotation was limited such that the Veteran could not toe-out more than 15 degrees. Thus, a higher or separate rating under DC 5253 is not warranted. The Board has considered whether a change in diagnostic code is warranted. However, since a higher or separate rating under DC 5253 is not warranted, and higher ratings are available to the Veteran under DC 5252, the Board does not find it necessary to change the Diagnostic Code for his current rating at this time since the same symptoms would not result in a higher award. See Butts v. Brown, 5 Vet. App. 532 (1993) (noting that the choice of diagnostic code should be upheld if supported by explanation and evidence). The Board has also considered whether any other diagnostic codes relating to the hip and thigh are applicable. However, the evidence of record does not show ankylosis of the left hip, functional or actual, flail joint, or impairment of the femur. Thus, application of DCs 5250, 5254, or 5255 are not warranted. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability ratings reflect and that he is competent to report observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran has not shown that he has the training or medical expertise to competently report on the degree of his left hip disability as it pertains to the ratings criteria. Furthermore, the Veteran's testimony as to the severity of his left hip disability, to include his report of numerous falls, appears to relate to the period leading up to his May 2021 left hip replacement rather than to the severity of his left hip disability during the appeal period currently before the Board. As such, the Board finds the Veteran's representations in this regard to be of extremely limited probative value and outweighed by the medical evidence concerning the severity of the Veteran's left hip disability during the appeal period as discussed in the above. In sum, the Board finds that a rating in excess of 10 percent for the Veteran's left hip disability is not warranted. The preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the Veteran's claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.71a. REASONS FOR REMAND 1. Entitlement to service connection for a right hip disability is remanded. 2. Entitlement to service connection for a left hand disability is remanded. 3. Entitlement to service connection for a right hand disability is remanded. 4. Entitlement to service connection for a left upper extremity disability is remanded. 5. Entitlement to service connection for a right upper extremity disability is remanded. 6. Entitlement to service connection for Barrett's esophagus is remanded. 7. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. 8. Entitlement to service connection for hiatal hernia is remanded. 9. Entitlement to service connection for pancreatitis is remanded. The issues of entitlement to service connection for a right hip disability, bilateral hand disability, bilateral upper extremity disability, Barrett's esophagus, GERD, hiatal hernia, and pancreatitis are remanded to correct duty to assist errors that occurred prior to the October 2019 rating decision on appeal. VA treatment records reflect that the Veteran established care with the Goshen VAMC in January 2019. During this appointment, the Veteran reported previous treatment the Fort Wayne VAMC. VA treatment records prior to January 2019 are not associated with the record. Failure to request or obtain VA treatment records prior to the rating decision on appeal constitutes a duty to assist error that requires remand. The record prior to October 2019 also reflects that the Veteran was in receipt of or had applied for Social Security Administration disability benefits. See May 2018 correspondence. However, VA did not request or obtain SSA records prior to the October 2019 rating decision. While SSA treatment records were subsequently associated with the record in September 2021 during an applicable evidentiary window, they were not submitted by the Veteran or his representative; thus, the Board cannot consider them as part of the record on appeal. 38 C.F.R. §§ 20.302(a), 20.303. Failure to obtain or consider SSA records prior to the October 2019 decision constitutes a duty to assist error that requires remand. As it pertains to the Veteran's service connection claims for a right hip disability, bilateral hand disability, and bilateral upper extremity disability, VA did not obtain a VA examination or medical opinion prior to the October 2019 rating decision. The Veteran contends that these disabilities are due to his in-service jumps as a paratrooper. During a September 2019 VA hip and thigh examination and medical opinion, the examiner explained that a review of the medical literature reflects that injuries to the lower extremities, low back, and head are most common and that parachuting injuries occur throughout all phases of the jump with ground impact the primary event. Based on this evidence, the Board finds that a VA examination and medical opinion is required to determine whether these musculoskeletal disabilities were incurred in or otherwise related to service. McClendon v. Nicholson, 20 Vet. App. 79, 81-85 (2006). Failure to obtain a VA examination or medical opinion prior to the October 2019 rating decision constitutes a duty to assist error that requires remand. Finally, as it pertains to the Veteran's service connection claims for Barrett's esophagus, GERD, hiatal hernia, and pancreatitis, VA did not obtain a VA examination or medical opinion prior to the October 2019 rating decision. The Veteran contends that these disabilities are caused by weight gain due to lack of exercise from his service-connected musculoskeletal disabilities. VA lumbar spine and knee examination reports dated in July 2018 and a September 2019 VA hip and thigh examination report reflect findings of pain in weight-bearing. VA treatment records associated with the record prior to October 2019 reflect that the Veteran had functional limitations due to pain and needed to lose weight. Based on this evidence, the Board finds that a VA examination and medical opinion is required to determine whether these disabilities are secondary to his service-connected musculoskeletal disabilities with obesity as an intermediate step. McClendon v. Nicholson, 20 Vet. App. 79, 81-85 (2006). Failure to obtain a VA examination or medical opinion prior to the October 2019 rating decision constitutes a duty to assist error that requires remand. The matters are REMANDED for the following actions: 1. Obtain VA treatment records prior to January 2019, to include from the Fort Wayne VAMC. 2. Ensure that the Veteran's complete Social Security Administration records associated with his 2015 claim for disability benefits are associated with the record. 3. Schedule the Veteran for a VA examination for his claimed right hip, bilateral hand, and bilateral upper extremity disabilities. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is it at least as likely as not that the Veteran's right hip, bilateral hand, and/or bilateral upper extremity disabilities (1) began during active service, to include related to jumps associated with his duties as a paratrooper or other rigors of service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 4. Schedule the Veteran for a VA examination for his Barrett's esophagus, GERD, hiatal hernia, and pancreatitis. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran's Barrett's esophagus, GERD, hiatal hernia, and/or pancreatitis at least as likely as not (1) proximately due to service-connected disability, to include as due to weight gain from lack of exercise due to his service-connected lumbar, left hip, and bilateral knee disabilities, or (2) aggravated, i.e., worsened beyond its natural progression, by service-connected disability, to include as due to weight gain from lack of exercise due to his service-connected lumbar, left hip, and bilateral knee disabilities? Provide a rationale to support the opinion(s). K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.