Citation Nr: 21072925 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 14-13 012 DATE: December 6, 2021 ORDER Entitlement to a rating in excess of 10 percent for left trochanteric pain syndrome, iliotibial band syndrome, and hip strain, based upon limitation of flexion, is denied. Entitlement to a rating in excess of 10 percent for left trochanteric pain syndrome, iliotibial band syndrome, and hip strain, based upon limitation of abduction, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's left hip does not exhibit flexion limited to 30 degrees or less. 2. The Veteran's left hip does not exhibit limitation of abduction beyond 10 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for left trochanteric pain syndrome, iliotibial band syndrome, and hip strain, based upon, limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5019-5252 2. The criteria for entitlement to a rating in excess of 10 percent for left trochanteric pain syndrome, iliotibial band syndrome, and hip strain, based upon limitation of abduction, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5019-5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1999 to December 2002. This appeal to the Board of Veterans' Appeals (Board) is from an October 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Veteran testified at a Board video conference hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In December 2015, the Board remanded this case for further development. In September 2018, the Board sent a letter to the Veteran which explained that the Veterans Law Judge who presided over her hearing was no longer available to participate in the appeal and offered the Veteran a hearing before a different VLJ; otherwise, the case would be reassigned. The Veteran did not respond to the letter within the 30-day deadline. In November 2018, the Board issued a decision granting a 10 percent rating, but no higher, for left hip strain, limitation of flexion, and denying a rating higher than 10 percent for left hip strain, limitation of abduction. The Veteran appealed the Board's decision (to the extent unfavorable) to the higher U.S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). And, in an August 2019 Order, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the portion of the Board's decision that had denied a rating higher than 10 percent for the left hip strain, limitation of flexion, and a rating higher than 10 percent for the left hip strain, limitation of abduction. The Court remanded these claims back to the Board for further action consistent with the terms of the JMPR. The JMPR noted that the November 2017 VA examination on which the Board had relied on was inadequate for evaluation of a hip disability because it did not comply with requirements outlined in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, the examiner did not provide an opinion on whether pain or weakness limited the Veteran's functional ability with flare-ups because she was not having a flare-up during the examination. In addition, the examiner failed to test for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, in relation to the range of motion of the opposite undamaged joint. The JMPR also instructed the Board to obtain additional private treatment records that are relevant to the claims. In March 2020, the Board remanded the Veteran's claims in order to obtain additional private treatment records that are relevant to the claims. In October 2021, the Board found that the July 2019 VA examination that took place prior to the March 2020 remand was inadequate because it did not meet the requirements of the JMPR. Specifically, the examiner did not provide an opinion that considered the lost range of motion that the Veteran experiences during a flareup. Consequently, the Board remanded the Veteran's claims in order for the Veteran to attend an additional VA examination. Increased Rating The Veteran contends that his disabilities warrant higher ratings throughout the course of the appeal. A disability rating is determined by the application of 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 be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 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 conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2015). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in such cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, in Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, and less or more movement than is considered normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board observes that the words "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in the process of arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating higher than 10 percent for left trochanteric pain syndrome, iliotibial band syndrome, hip strain (limitation of flexion) 2. Entitlement to a rating higher than 10 percent for left trochanteric pain syndrome, iliotibial band syndrome, hip strain (limitation of abduction) The Board notes that the Veteran is challenging her initial ratings. The Veteran's left hip disability, based upon limitation of flexion, was awarded a 10 percent rating according to Diagnostic Code 5019-5252. The Veteran's left hip disability, based upon limitation of abduction, was awarded a 10 percent rating according to Diagnostic Code 5019-5253. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. Unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and 99. 38 C.F.R. § 4.27. Bursitis is rated as for arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5019. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. Id. Each hip is considered a major joint. 38 C.F.R. § 4.45(f) The Board finds that Diagnostic Code 5250 (ankylosis of the hip), is not for application in this case because the medical evidence of record clearly shows that the Veteran's left hip is not ankylosed at any level. Although the Veteran's left hip disability does manifest in some limitation of motion from pain and stiffness, it is not in a fixed position without motion at any degree or angle, nor does the Veteran contend otherwise. Under Diagnostic Code 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. Under Diagnostic Code 5252, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 20 degrees. A maximum 40 percent rating is warranted for flexion limited to 10 degrees. Under Diagnostic Code 5253, a 10 percent rating is warranted for limitation of rotation of affected leg, such that one cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, such that one cannot cross legs. A maximum 20 percent rating is warranted for limitation of abduction, such that motion is lost beyond 10 degrees. Normal range of motion of the hip is from 0 to 125 degrees of flexion and 0 to 45 degrees of abduction. 38C.F.R.§4.71, Plate II. Limitation of motion of the hip or thigh may be rated under DC 5250 (ankylosis of the hip), DC 5251 (limitation of extension), 5252 (limitation of flexion), or DC 5253 (impairment of the thigh). As to a current diagnosis, the Board notes that the Veteran's disability has been diagnosed as left, trochanteric pain syndrome, iliotibial band syndrome, and hip strain. As to the Veteran's lay statements, the Board notes that the Veteran testified that she experiences pain in her hip. The Veteran also stated that she has increased pain during flareups. Lastly, the Board notes that the Veteran testified that she has lost range of motion in her hip and it is difficult to do chores around the house. In September 2009 the Veteran attended a VA examination. The report reflects that on physical examination, the Veteran's gait was normal and there was no joint ankylosis. The examiner reported that she could not cross her legs well due to the size of her thighs. The examiner reported that she could toe out greater than 15 degrees, she exhibited flexion to 110 degrees; and she did not have loss of motion on repetitive use. The examiner noted that the Veteran exhibited extension to 30 degrees and there was no loss of motion on repetitive use. The examiner indicated that the Veteran exhibited abduction to 45 degrees with no loss of motion on repetitive use, abduction was to 25 degrees with no loss of motion on repetitive use, internal rotation was to 40 degrees with no loss of motion on repetitive use, and external rotation was to 60 degrees with no loss of motion on repetitive use. The examiner indicated that there was moderate tenderness. In January 2016, the Veteran attended a VA examination. The Veteran reported flare-ups of the hip or thigh described as pain in her hip joints, bilaterally, with more pain in the left hip. The Veteran reported functional loss or functional impairment of the joint described as pain around the greater trochanter when standing or sitting for a long period of time. Upon examination, the examiner indicated that the Veteran exhibited flexion to 115 degrees, extension to 30 degrees, abduction to 45 degrees, abduction to 25 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees. The examiner indicated that there was no evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional loss of function or range of motion after the three repetitions. The Veteran was examined immediately after repetitive use over time and pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner noted that the left hip was examined during a flare-up and pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. There was no ankylosis, malunion or union of the femur, flail hip joint or leg length discrepancy. In November 2017, the Veteran attended a VA examination. The Veteran reported flare-ups and described her pain as 10 on a scale of 10 on a daily basis. She described functional loss or functional impairment of the joint as difficulty walking and standing more than 30 minutes due to pain. Upon examination, the examiner indicated that the Veteran exhibited flexion to 90 degrees, extension to 30 degrees, abduction to 40 degrees, adduction to 15 degrees, external rotation to 50 degrees, and internal rotation to 30 degrees. The examiner noted that adduction was limited such that the Veteran could not cross her legs. The examiner indicated that the Veteran exhibited pain with flexion. The examiner indicated that there was no objective evidence of crepitus. The examiner indicated that the Veteran was unable to perform repetitive use testing because she could not tolerate the repeat range of motion due to increase in hip pain. The examiner indicated that there was no ankylosis, malunion or nonunion of the femur, flail hip joint, or leg length discrepancy. In July 2019, the Veteran attended a VA examination. The Veteran reported that she feels pain in her hip that can range from a 7 on a scale of 10 to a 9 on a scale of 10. The Veteran reported experiencing flareups. The Veteran stated that she has flareups every day that are mild to moderate in nature. The Veteran stated that she takes pain medication to help deal with the flareups. Upon examination, the examiner indicated that the Veteran exhibited flexion to 115 degrees, extension to 30 degrees, abduction to 35 degrees, abduction to 25 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees. The examiner indicated that the Veteran's abduction is not limited that it prevents her from crossing her legs. The examiner indicated that pain was noted on examination. The examiner indicated that the Veteran could perform repetitive testing and there was no additional loss after three repetitions. The examiner indicated that there was no ankylosis, malunion or nonunion of the femur, and flail hip joint. The examiner indicated that there was a leg length discrepancy of 1.25 cm. The examiner indicated that they were unable to provide any estimates for lost range of motion during a flareup. The examiner indicated that the Veteran "could not reliably determine and demonstrate ROM loss during a flare up or after repetitive use." The examiner also stated that the "medical records did not sufficiently identify previous ROM during flare ups or after repetitive motion." In April 2021, the Veteran attended a VA examination. The Veteran reported that she is constantly in pain. The Veteran reported that she experiences 3 to 4 flareups a week. Upon examination, the examiner indicated that she has decreased motion with squatting and climbing. The examiner indicated that the Veteran exhibited flexion to 115 degrees, extension to 30 degrees, abduction to 25 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees. The examiner indicated that there was pain during passive motion, flexion, and abduction. The examiner indicated that the Veteran is not prevented from crossing her legs. The examiner indicated that the Veteran had the same range of motion during passive range of motion testing. The examiner indicated that the Veteran is able to perform repetitive testing and there was no additional lost range of motion. The Veteran's range of motion during a flareup was flexion to 115 degrees, extension to 30 degrees, abduction to 35 degrees, abduction to 25 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees. The examiner indicated that there were no signs of ankylosis or nonunion of femur, flail hip joint, or leg length discrepancy. By virtue of the parties' agreements in the JMPR, which served as the basis for the Board's most recent remand, it is assumed that the April 2021 VA examiner's review of the file (which includes these documents) posited an understanding that the range-of-motion findings reported in April 2021 were given in a retrospective fashion, to be used throughout the appeal period to suffice Sharp and Correia. As such, the Board will use the April 2021 VA examiner's range of motion estimates of the Veteran's flareups in order to analyze the Veteran's flareups throughout the course of the appeal. The Board will use these estimates because this opinion is based on a review of the record and an interview of the Veteran. The Board has also reviewed the Veteran's VA treatment records and private treatment records. After a review of these records, the Board finds that these records do not show evidence that the Veteran exhibits lost range of motion that is greater than what was reported at her VA examinations. The Board finds that the Veteran's left hip disability, manifested by a limitation of flexion, has remained consistent and an increased rating is not warranted. After a review of the record, the Board notes that the evidence does not demonstrate that the Veteran's hip exhibits limitation of flexion to 30 degrees. The Board has considered the Veteran's reports of pain and lost range of motion during a flareup; however, the Board does not find that the Veteran's symptomatology, even when considering pain on motion, demonstrates that her disability results in lost range of motion which warrants a rating in excess of 10 percent. Specifically, the Board notes that the range of motion that was measured following repetitive testing and the examiner's estimates of lost range of motion during a flareup do not result in flexion that is limited to 30 degrees. Accordingly, for the above-stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to a rating in excess of 10 percent for a left hip disability manifested by limitation of flexion must be denied. In sum, the Board finds that the Veteran's left hip disability, manifested by a limitation of abduction, has remained consistent and an increased rating is not warranted. After a review of the record, the Board notes that the evidence does not demonstrate that the Veteran's hip exhibits limitation of abduction, such that motion is lost beyond 10 degrees. The Board has considered the Veteran's reports of pain and lost range of motion during a flareup; however, the Board does not find that the Veteran's symptomatology, even when considering pain on motion, demonstrates that her disability results in lost range of motion which warrants a rating in excess of 10 percent. Specifically, the Board notes that the range of motion that was measured following repetitive testing and the examiner's estimates of lost range of motion during a flareup do not result in abduction that is lost beyond 10 degrees. Accordingly, for the above-stated reasons, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for entitlement to a rating in excess of 10 percent for a left hip disability manifested by limitation of abduction, must be denied. REASONS FOR REMAND 1. TDIU is remanded. The Board acknowledges that the Veteran's claims for increased ratings include a claim for TDIU when it is expressly raised by the Veteran or reasonably raised by the record. After a review of the record, the Board finds that the claim for TDIU has been raised by the record. Specifically, the record reflects that the Veteran's hip disability has impacted her ability to work. For the above stated reasons, the Board finds that the issue of entitlement to TDIU has been raised by the record and is part and parcel to the Veteran's increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447. While this issue is clearly before the Board, it is not ripe for readjudication, as it has not been developed and adjudicated in the first instance by the AOJ, and thus, the Board current consideration would deprive the Veteran of due process. As such, the RO must undertake all actions necessary to develop and adjudicate an appeal seeking a TDIU under the controlling statutes, regulations, and case law. The matters are REMANDED for the following actions: 1. The AOJ must provide the Veteran with adequate notice of the criteria necessary to establish a claim for TDIU under 38 C.F.R. § 4.16 (a) and (b). 2. The AOJ must provide the Veteran the appropriate application form (VA Form 21-8940) for a claim for TDIU. The Veteran should be instructed on how to properly complete and submit the form. 3. Thereafter, the AOJ must complete any additional evidentiary development necessary to adjudicate the Veteran's claim for TDIU, to specifically include collecting and verifying information concerning the complete educational and occupational histories, and scheduling additional VA examination(s) necessary for adjudicating the issue. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Rescan, 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.