Citation Nr: 21072949 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-34 956 DATE: December 7, 2021 ORDER A rating in excess of 10 percent for left hip trochanteric pain syndrome/bursitis is denied. A compensable rating for right hip mild chronic tendonitis/bursitis with pain prior to May 9, 2016, and a rating in excess of 10 percent thereafter, is denied. A compensable rating for limitation of flexion of the right hip is denied. A rating in excess of 10 percent for limitation of extension of the right hip prior to May 9, 2016, and a compensable rating thereafter, is denied. A compensable rating for right shin splint is denied. A compensable rating for left shin splint is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding left hip limitation of abduction resulting in motion lost beyond 10 degrees. 2. Prior to May 6, 2016, the preponderance of the evidence is against finding right hip limitation of rotation resulting in the affected leg cannot toe out more than 15 degrees or limitation of adduction resulting in the Veteran cannot cross her legs. 3. From May 6, 2016, the preponderance of the evidence is against finding right hip limitation of abduction resulting in motion lost beyond 10 degrees. 4. The preponderance of the evidence is against finding right hip limitation of flexion to 45 degrees. 5. Prior to May 9, 2016, a rating of 10 percent for right hip limitation of extension is the maximum rating under DC 5251. 6. From May 9, 2016, the preponderance of the evidence is against finding right hip limitation of extension to 5 degrees. 7. The preponderance of the evidence is against finding malunion of tibia and fibula with slight knee or ankle disability. 8. The preponderance of the evidence is against finding shin splints requiring treatment for no less than 12 months and were unresponsive to either shoe orthotics or other conservative treatment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left hip trochanteric pain syndrome/bursitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5253. 2. The criteria for a compensable rating for right hip mild chronic tendonitis/bursitis with pain prior to May 9, 2016, and a rating in excess of 10 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5253. 3. The criteria for a compensable rating for limitation of flexion of the right hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5252. 4. The criteria for a rating in excess of 10 percent for limitation of extension of the right hip prior to May 9, 2016, and a compensable rating thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5251. 5. The criteria for a compensable rating for right shin splint have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5262. 6. The criteria for a compensable rating for left shin splint have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2006 to July 2007. In February 2021, the Veteran appeared for a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Increased Rating 1. Entitlement to a rating in excess of 10 percent for left hip trochanteric pain syndrome/bursitis 2. Entitlement to a compensable rating for right hip mild chronic tendonitis/bursitis with pain prior to May 9, 2016 and a rating in excess of 10 percent thereafter 3. Entitlement to a compensable rating for limitation of flexion of the right hip 4. Entitlement to a rating in excess of 10 percent for limitation of extension of the right hip prior to May 9, 2016, and a compensable rating thereafter For left hip disability, the Veteran is assigned a 10 percent rating for left hip trochanteric pain syndrome/bursitis under DC 5253. For right hip disability, the Veteran is assigned a noncompensable rating for right hip mild chronic tendonitis/bursitis with pain prior to May 9, 2016 and a 10 percent rating thereafter under DC 5253; a noncompensable rating for limitation of flexion of the right hip under DC 5252; and a 10 percent rating for limitation of extension of the right hip prior to May 9, 2016 and a noncompensable rating thereafter under DC 5251. Under DC 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. 38 C.F.R. § 4.71a, DC 5251. Under DC 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. 38 C.F.R. § 4.71a, DC 5252. Under DC 5253, a 10 percent rating is warranted for limitation of rotation of affected leg, cannot toe out more than 15 degrees. A 10 percent rating is also warranted for limitation of adduction, cannot cross legs. A maximum 20 percent rating is warranted for limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253. 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."). At a May 2016 VA examination, the Veteran reported hip flare-ups, described as bold arching pain in the buttock and outside of the hip. She described the functional impairment as impaired prolonged sitting, standing, walking, repetitive bending, and heavy lifting. The clinician noted normal range of motion of both hips. The clinician noted adduction was not limited such that the Veteran could not cross her legs. The clinician noted mild tenderness to palpitation to the lateral aspect. There was evidence of pain on weightbearing. There was objective evidence of crepitus. The clinician noted the Veteran was examined immediately after repetitive use over time. The clinician noted the Veteran was not examined during a flare-up and opined pain would significantly limit functional ability with flare-ups. The clinician stated he was unable to describe additional functional loss in terms of range of motion without resorting to speculation. The clinician stated there was no evidence of ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. The clinician opined the Veteran's hip disabilities impacted her ability to work due to difficulty with prolonged sitting, standing, walking, repetitive bending, and heavy lifting. A February 2017 private treatment disability benefits questionnaire (DBQ) reported bilateral hip pain. She reported flare-ups, described as constant pain, especially in winter months. She described functional impairment of difficulty sitting for more than 30 minutes, walking, and stairs. Range of motion testing showed right hip flexion to 100 degrees, extension to 15 degrees, abduction to 20 degrees, adduction to 20 degrees, external rotation to 45 degrees, and internal rotation to 40 degrees. The clinician noted the Veteran's right hip popped during range of motion testing. Range of motion testing showed left hip flexion to 60 degrees, extension to 30 degrees, abduction to 25 degrees, adduction to 15 degrees, external rotation to 45 degrees, and internal rotation to 20 degrees. The clinician noted bilateral hip pain during range of motion testing. The clinician opined the Veteran's abnormal range of motion contributed to functional loss by difficulty with stairs, sitting more than 30 minutes, getting up from sitting, and walking. The clinician noted tenderness to the sacroiliac joints. The clinician opined pain, weakness, fatigability, or incoordination would significantly limit functional ability with flare-ups and after repeated use over time. The clinician described the additional functional loss as limitation with walking, sitting, and going upstairs. The clinician opined the Veteran's hip disabilities impacted her ability to work due to pain with walking, sitting, stairs, and standing for extended periods. A February 2021 hearing transcript reported worsening of her hips since her last VA examination in 2016. She reported being referred for physical therapy and was currently using medication and heating pads for treatment. She reported being a surgical candidate, but was electing to proceed with conservative treatment at the time. She reported being in constant pain when she walks, goes to work, and with daily life activities. She reported she did not use any braces or walking devices currently. A June 2021 VA examination reported worsening bilateral hip pain. She reported flare-ups described as sharp pain, occurring a couple times a week, lasting for hours, worsened with walking and standing, alleviated with rest, and of a moderate severity. She reported functional impairment of limitations with walking and standing. Range of motion testing showed right hip flexion to 90 degrees, extension to 15 degrees, abduction to 20 degrees, adduction to 15 degrees, external rotation to 40 degrees, and internal rotation to 20 degrees. The clinician noted pain on range of motion testing. The clinician noted limitation in adduction of the right hip prevented the Veteran from crossing her legs. Range of motion testing showed left hip flexion to 90 degrees, extension to 20 degrees, abduction to 25 degrees, adduction to 15 degrees, external rotation to 40 degrees, and internal rotation to 20 degrees. The clinician noted pain on range of motion testing. The clinician noted there was not limitation in adduction of the left hip that prevented the Veteran from crossing her legs. The clinician opined pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time or during flare-ups. The clinician stated there was no evidence of ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. The clinician opined the Veteran's hip disabilities impacted her ability to work due to limited ability to kneel, crouch, crawl, stand, walk, or run for prolonged periods of time. For left hip disability, the Veteran is assigned a 10 percent rating for left hip trochanteric pain syndrome/bursitis under DC 5253. Under DC 5253, to warrant a higher rating, the evidence must show limitation of abduction resulting in motion lost beyond 10 degrees. The evidence shows the Veteran's left hip abduction was limited at worst to 25 degrees. The Board gives probative weight to the June 2021 VA examination findings because the examiner considered additional range of motion loss with flare-ups or after repeated use over time. To warrant a separate compensable rating for limitation of extension or flexion, the evidence must show extension limited to 5 degrees or flexion limited to 45 degrees. The evidence shows the Veteran's left hip extension was at worst 20 degrees and left hip flexion was at worst 60 degrees. The Board gives probative weight to the June 2021 VA examination, which considered functional loss with flare-ups or after repeated use over time, but found there would not be additional range of motion loss. Looking to right hip disability, the Veteran is assigned a noncompensable rating for right hip mild chronic tendonitis/bursitis with pain prior to May 9, 2016 and a 10 percent rating thereafter under DC 5253; a noncompensable rating for limitation of flexion of the right hip under DC 5252; and a 10 percent rating for limitation of extension of the right hip prior to May 9, 2016 and a noncompensable rating thereafter under DC 5251. To warrant a compensable rating prior to May 6, 2016 under DC 5253, the evidence must show limitation of rotation of affected leg resulting in cannot toe out more than 15 degrees or limitation of adduction resulting in the Veteran cannot cross her legs. Prior to May 6, 2016, the evidence does not show limitation of rotation or adduction to this extent. To warrant a rating in excess of 10 percent from May 6, 2016 under DC 5253, the evidence must show limitation of abduction resulting in motion lost beyond 10 degrees. The evidence shows the Veteran's abduction was at worst to 20 degrees. The Board gives probative weight to the June 2021 VA examination findings because the examiner considered additional range of motion loss with flare-ups or after repeated use over time. To warrant a compensable rating for limitation of flexion of the right hip under DC 5252, the evidence must show flexion limited to 45 degrees. The evidence shows flexion at worst to 90 degrees. The Board gives probative weight to the June 2021 VA examination findings because the examiner considered additional range of motion loss with flare-ups or after repeated use over time. Regarding a rating in excess of 10 percent for limitation of extension of the right hip prior to May 9, 2016 under DC 5251, 10 percent is the maximum rating available under DC 5251. To warrant a compensable rating from May 9, 2016 under DC 5251, the evidence must show extension of the thigh limited to 5 degrees. The evidence shows right hip extension at worst to 15 degrees. The Board gives probative weight to the June 2021 VA examination findings because the examiner considered additional range of motion loss with flare-ups or after repeated use over time. For both left and right hip disabilities, the Board considered the other diagnostic codes pertaining to the hip and thigh. The evidence does not support, nor has the Veteran contended, ankylosis of the hip (DC 5250), hip flail joint (DC 5254), or impairment of the femur (DC 5255). The Board acknowledges the Veteran's statements and evidence showing limitations with walking, sitting, standing, bending, heavy lifting, stairs, sleeping on the right side, kneeling, crouching, crawling, and running. The Veteran's physical restrictions pertain to functional limitations that are contemplated by the governing diagnostic code criteria and corresponding regulations. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011), DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. Difficulty performing a specific activity or task is not a "symptom" set forth in any portion of the Rating Schedule, yet a result of the symptoms of pain, painful motion, and limitation of motion, which have been considered in the assigned ratings. In conclusion, the preponderance of the evidence is against granting an increased rating for the Veteran's service-connected left hip or right hip disabilities. 5. Entitlement to a compensable rating for right shin splint 6. Entitlement to a compensable rating for left shin splint The Veteran is assigned a noncompensable rating for right shin splint and left shin splint under DC 5262. She contends entitlement to an increased rating. Under DC 5262, a 10 percent rating is warranted for malunion of tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, DC 5262. The Board notes VA recently enacted amendments to the musculoskeletal system rating schedule, to include changes to DC 5262, effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). The Board will apply the old rating criteria prior to February 7, 2021 and consider whether the new rating criteria would be more favorable to the Veteran after February 7, 2021. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the amended rating criteria for DC 5262, the rating criteria are split into three categories: medial tibial stress syndrome (MTSS) or shin splints; malunion; and nonunion. For MTSS, or shin splints, a noncompensable rating is warranted for treatment less than 12 consecutive months, one or both lower extremities. A 10 percent rating is warranted where treatment is required for no less than 12 months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent rating is warranted where treatment is required for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A maximum 30 percent rating is warranted where treatment is required for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. A review of the evidence shows a May 2016 VA examination noted a history of bilateral shin splits. The clinician stated the condition did not affect the range of motion of the knees or ankles. The clinician stated there were no current symptoms. A June 2021 VA examination noted a history of shin splints that required treatment for less than 12 consecutive months. Under the pre-February 7, 2021 rating criteria, the preponderance of the evidence is against finding malunion of tibia and fibula with slight knee or ankle disability. Under the amended rating criteria, the preponderance of the evidence is against finding shin splints requiring treatment for no less than 12 months and unresponsive to either shoe orthotics or other conservative treatment. The Board gives probative weight to the May 2016 and June 2021 VA examination findings that the Veteran's shin splints were asymptomatic and required treatment for less than 12 consecutive months. These findings are consistent with treatment records during the appeal period. As such, the preponderance of the evidence is against awarding a compensable rating for right shin splint or left shin splint. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Winkler, 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.