Citation Nr: 21072835 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 14-20 358 DATE: December 6, 2021 ORDER A compensable disability rating for left femur disability manifested by limitation of extension of the left thigh is denied. A compensable disability rating for left femur disability manifested by impairment of the left thigh is denied. FINDINGS OF FACT 1. The Veteran's left femur disability has been manifested by a painful, but noncompensable level of limited extension even after considering additional functional loss and/or impairment; it is not manifested by ankylosis, hip flail joint, fracture of the surgical neck of the femur with false joint, or fracture of shaft or anatomical neck. There is no X-ray evidence of arthritis. 2. The Veteran's left femur disability also does not cause rotation limited to the point that he cannot toe-out more than 15 degrees; or adduction limited such that he cannot cross his legs; or abduction lost beyond 10 degrees. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for left femur disability manifested by limitation of extension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.31, 4.59, 4.71a, Diagnostic Code (DC) 5251. 2. The criteria for a compensable disability rating for left femur disability manifested by left thigh impairment are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.31, 4.59, 4.71a, DC 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1961 to February 1965. In November 2016 he testified at a videoconference Board hearing. A transcript of the hearing is of record. This matter was remanded by the Board for additional development in July 2017. In May 2019, the Board denied compensable disability ratings for left femur disabilities manifested by limitation of extension of the left thigh and thigh impairment. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the Court issued an order that vacated and remanded that part of the May 2019 Board decision that that denied compensable ratings for these disabilities for compliance with its Memorandum Decision. The Court affirmed the Board's decision that denied both a disability rating higher than 10 percent for left femur disability manifested by limitation of flexion of the left thigh and a total rating based on individual unemployability (TDIU); and dismissed the remainder of the appeal. Increased Ratings The Veteran seeks compensable evaluations for his service-connected left femur disabilities. Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). There are several diagnostic codes that pertain to the individual planes of motion of the hip joint, rather than the hip as a whole. Thigh motion is affected by the hip joint. Limitation of motion of the thigh is evaluated under DCs 5251 (extension), 5252 (flexion), and 5253 (abduction, adduction, rotation). 38 C.F.R. § 4.71a. Normal flexion of the hip is to 125 degrees, normal extension is to 0 degrees, and normal abduction is to 45 degrees. Id., Plate II. The Veteran currently has a noncompensable (0 percent) disability rating for his left femur disability based on limitation of extension under DC 5251 and a noncompensable disability rating for impairment of the thigh under DC 5253. 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 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 will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110; Kuzma, 341 F.3d 1327. If the revised version 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. Id. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable will be applied. Prior to the regulatory change, extension of the thigh limited to 5 degrees warrants a maximum 10 percent rating under DC 5251. 38 C.F.R. § 4.71a. 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. Id. These diagnostic codes for limitation of motion are unaffected by the February 7, 2021 regulatory changes. Separate ratings may be assigned under DCs 5251, 5252, and 5253. See VAOPGCPREC 9-04. However, separate ratings for abduction, adduction, and/or rotation may not be assigned, as these are all evaluated under the same diagnostic code, DC 5253. Cullen v. Shinseki, 24 Vet. App. 74, 84 (2010). Where the schedule does not provide for a 0 percent rating, such an evaluation will be assigned when the requirements for a compensable evaluation have not been met. 38 C.F.R. § 4.31. The current noncompensable disability ratings are based on findings from a November 2012 VA examination report. The Veteran reported that since his last examination in 2009, he had not experienced any increase in symptomatology and currently denied having any left hip pain, decreased range of motion, or flare-ups. Range of motion testing showed left hip extension greater than 5 degrees with no objective evidence of painful motion. Abduction was not lost beyond 10 degrees and adduction was not limited such that the Veteran could not cross his legs. Rotation was limited such that the Veteran could not toe-out more than 15 degrees. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion or functional loss/impairment. There was no localized tenderness or pain to palpation for joints/soft tissue of the left hip. Muscle strength was normal at 5/5 for hip flexion, abduction, and extension. There was no ankylosis of the left hip joint and no additional conditions. The Veteran's history of intramedullary rod placement and removal in 1962 was noted with no evidence of symptomatic scarring or other residuals. Imaging studies showed no hip arthritis. The Veteran's hip/thigh condition did not impact his ability to work. Subsequently dated outpatient treatment records from 2012 to 2017 are not materially different from those reported on the VA examination and show no indication of a worsening in range of motion or functional impairment. A September 2012 private treatment record shows the Veteran was seen for complaints of his left leg giving out while walking uphill and that he was using a cane on a fairly constant basis. However, the examiner noted that the cause of the Veteran's left leg giving out was not his service-connected left femur disability or even his service-connected left knee disability but rather his nonservice connected sacroiliac dysfunction. See Primary Treating Physician's Progress Report from R. Lowengart, M.D., dated September 18, 2012. The next relevant record is a VA treatment report from June 2015 which shows the Veteran had good range of motion in his left hip and pelvis without pain. The examiner indicated that the Veteran's lumbar L4 spondylolisthesis and left side neuroforaminal stenosis were causing his problem with left leg weakness and falling after prolonged standing. See Physician Note from Grants Pass VA Clinic dated June 26, 2015. When examined by VA in November 2017 the Veteran stated that his hip/femur pain was essentially unchanged from when he was last examined in 2012. There were no reports of flare-ups, but he did report functional limitations of no prolonged standing or walking, and no frequent pivoting on the joint. Range of motion testing showed left hip extension of 0 to 25 degrees; abduction 0 to 40 degrees; adduction 0 to 20 degrees, external rotation 0 to 50 degrees, and internal rotation 0 to 35 degrees all with pain. Adduction was not limited such that the Veteran could not cross his legs. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. There was evidence of pain on passive range of motion and with weight bearing and on non-weight bearing. There was no objective evidence of localized tenderness/pain on palpation. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time. There were no additional factors contributing to disability. Muscle strength was normal at 5/5 for hip flexion, extension, and abduction with no reduction in strength. There was no evidence of atrophy or ankylosis and no additional conditions. There were no other pertinent physical findings, complications, conditions, signs or symptoms and the Veteran did not require assistive devices to walk. Imaging studies showed no hip arthritis. The few treatment records associated with the claims file since the VA examination do not reflect a worsening in range of motion or functional impairment. The evidence does not demonstrate that compensable evaluations are warranted at any time during the appeal. Although the Veteran has some loss of hip motion, even with complaints of pain, he has not exhibited limitation of extension to 5 degrees or the inability to toe-out more than 15 degrees, sufficient to warrant separate 10 percent evaluations under DCs 5251 or 5253, respectively. As such, the Board finds that the noncompensable ratings are proper. VA must also consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, incoordination, and other factors. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Although, the Veteran has reported that his left leg will "washout," causing him to fall and VA treatment records confirm his use of a cane, the clinical findings/do not suggest that range of motion would change to the degree required for 10 percent evaluations after repetitive use, due to pain, or with weight bearing. In fact, during the appeal period, the Veteran has demonstrated better than near normal range or motion with no additional loss of motion or function after repetitive use testing. He did not report flare-ups and retains normal hip strength. Further, he has been fully ambulatory and able to take care of his activities of daily living. Given that his complaints do not prevent him from essentially achieving substantial measured range of motion, they do not support a finding of additional functional loss for a higher rating. In its May 2021 Memorandum Decision, the Court indicated that the Board should consider in the first instance the Veteran's argument that section 4.59 warrants multiple compensable ratings for his painful limited motion of the hip joint evaluated under separate diagnostic codes. The Board notes that the intent of the Rating Schedule is to "recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." 38 C.F.R. § 4.59. Because the emphasis is on the joint, and not the disability, no matter how many separate ratings are given for different excursions of motion, the painful motion stems from a single hip joint. The Veteran is already in receipt of a separate 10 percent disability rating under 38 C.F.R. § 4.59 for painful motion of his left hip/thigh under DC 5252. See May 2009 Rating Decision. As such, the Board cannot assign compensable evaluations under DC 5251 or DC 5253 for painful motion, because assigning minimum compensable ratings for pain for the same joint under three different diagnostic codes constitutes impermissible pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Accordingly, there is no basis for the grant of compensable ratings for limited extension or thigh impairment caused by the Veteran's left femur disability. The Board has carefully considered the Veteran's statements regarding the severity of his left femur disability to include his Board hearing testimony. In this case, however, the competent medical evidence, offering detailed specific determinations that pertain to the rating criteria, namely determinations as to range of motion of the hip and functional impairment is the most probative evidence in evaluating the Veteran's left femur disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The medical evidence also largely contemplates the Veteran's descriptions of his symptoms, including his reports of impairment with respect to physical activities. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. (Continued on the next page) The Board has also considered the medical article on sacroiliac joint dysfunction, the Veteran has presented noting that a rod was inserted into this region during service to correct his left femur injury. However sacroiliac injury and weakness is a disability of the spine. See 38C.F.R. § 4.71a, DC 5236. Moreover, service connection has been denied for a low back disability, to include as secondary to the Veteran's left femur and knee disabilities, therefore his sacroiliac dysfunction, and the falls caused by it are not for consideration. To the extent the Veteran challenges the determination as to the cause of his falls, such a determination treads into the realm of medical expertise and so is beyond the scope of knowledge of a lay person. In this case, the facts are complex enough that the Veteran's assertions are not sufficient to outweigh the medical opinions of record. See Jandreau supra. Finally, there are no other diagnostic codes pertaining to the hip that would provide compensable disability evaluations. There is no evidence of hip flail joint, or malunion of the femur as contemplated by DCs 5254 and 5255. 38 C.F.R. § 4.71a. Accordingly, there is no basis for higher ratings. The preponderance of the evidence is against the claims, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Bryant 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.