Citation Nr: 21073496 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 20-29 591 DATE: December 8, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for left hip extension is denied. Entitlement to a compensable disability rating for left hip flexion is denied. Entitlement to a disability rating in excess of 20 percent for left hip abduction is denied. Prior to June 16, 2020, entitlement to a disability rating in excess of 10 percent for left leg shortening disability is denied. From June 16, 2020, entitlement to a disability rating in excess of 30 percent for left leg shortening disability is denied. Entitlement to a compensable rating for residual scar, status post osteomyelitis surgery, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's left hip extension is assigned the maximum rating authorized under Diagnostic Code 5251. 2. At worst, the Veteran's left hip flexion was limited to 60 degrees. 3. The Veteran's left hip abduction is assigned the maximum rating authorized under Diagnostic Code 5253. 4. Prior to June 16, 2020, the Veteran's left leg was 2 cm shorter than his right leg. 5. From June 16, 2020, the Veteran's left leg was 7 cm shorter than his right leg. 6. The Veteran's left leg scar is not painful or unstable, deep and nonlinear, associated with underlying soft tissue damage, or covering an area or areas of 144 square inches or greater. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for left hip extension has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5251. 2. The criteria for a compensable disability rating for left hip flexion has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5252. 3. The criteria for a disability rating in excess of 20 percent for left hip abduction has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5253. 4. Prior to June 16, 2020, the criteria for a disability rating in excess of 10 percent for left leg shortening has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 4.14, 4.71a, Diagnostic Code 5275. 5. From June 16, 2020, the criteria for a disability rating in excess of 30 percent for left leg shortening has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 4.14, 4.71a, Diagnostic Code 5275. 6. The criteria for a compensable disability rating for residual scar, status post osteomyelitis surgery, has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 4.14, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from April 1961 to February 1962. Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.20 (2021). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2021). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2021). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Left Hip The Veteran's limited left hip range of motion is rated under multiple Diagnostic Codes to fully compensate him for his disability. The Veteran's limited left hip extension is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5251, for limitation of extension of the thigh. Under Diagnostic Code 5251, a maximum 10 percent rating is warranted for extension of the thigh limited to 5 degrees. The Veteran's limited left hip flexion is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5252, for limitation of flexion of the thigh. 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. The Veteran's limited hip abduction is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5253, for impairment of the thigh. Under Diagnostic Code 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. 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). Facts The Veteran had a VA examination in May 2017. The Veteran reported no issue with flareups. He reported functional impairment of pain and weakness with ambulation. His range of motion was flexion to 60 degrees, extension to 0 degrees, abduction to 10 degrees, adduction to 0 degrees, external rotation to 0 degrees, and internal rotation to 0 degrees. His abduction was limited such that he was unable to cross his legs. His abnormal range of motion did not cause functional loss. He had pain with active range of motion testing and weight-bearing testing. There was no objective evidence of pain on passive or non-weight-bearing testing. There was no change in range of motion after repetitive testing. The examiner opined pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time. There was no ankylosis. The Veteran reported occasional use of crutches and regular use of a cane. The clinician opined the impact of his left hip on his ability to perform occupational tasks was severe hip pain caused loss of function of left leg. His next VA examination was in June 2020. The Veteran reported pain with all movement and prolonged weight bearing. He reported using a cane for both hands since 2013. He reported flareups, described as increased pain after prolonged and exaggerated movements. He reported the functional impairment of inability to walk more than 2 blocks and issues with climbing stairs and getting out of cars. His range of motion was flexion to 100 degrees, extension to 5 degrees, abduction to 20 degrees, adduction to 10 degrees, external rotation to 10 degrees, and internal rotation to 10 degrees. He was able to cross his legs. The examiner noted because of his decreased range of motion it was difficult for him to raise his left leg to avoid elevated objects. He had pain with active, weight-bearing, non-weight-bearing, and passive testing, but no change in his range of motion. There was no additional loss of range of motion after repetitive testing. The examiner opined pain would significantly limit functional ability during flareups and after repeated use over time, but found no additional loss in range of motion. There was no ankylosis. The Veteran reported constant use of a cane. The clinician opined the impact of his left hip on his ability to perform occupational tasks was difficulty ambulating without using 2 custom canes, going up and down steps, and walking for extended periods of time; cannot run, jog, or move with reasonable speed; and stooping and kneeling would be challenging and expose him to risk of falls. His most recent VA examination was in July 2021. The Veteran reported flareups, described as daily, lasting up to an hour, and characterized by severe, sharp pain. He reported the functional impairment of pain with walking, getting in and out of chairs, and transferring to different positions. His range of motion was flexion to 90 degrees, extension to -10 degrees, abduction to 35 degrees, adduction to 5 degrees, external rotation to 30 degrees, and internal rotation to 20 degrees. He experienced pain with all range of motion testing. He was unable to cross his legs. There was no additional loss in range of motion after repetitive testing. The examiner opined pain would significantly limit functional ability with repeated use over time and flareups, with estimated range of motion loss in degrees of flexion to 85 degrees, extension to -15 degrees, abduction to 30 degrees, adduction to 0 degrees, external rotation to 25 degrees, and internal rotation to 15 degrees. There was no ankylosis. The Veteran reported constant use of crutches. The clinician opined the impact of his left hip on his ability to perform occupational tasks was difficulty with walking and transfers. Left Hip Extension The Veteran is assigned a 10 percent rating for left hip limited extension. See June 2017 rating decision. As the Veteran is in receipt of the highest schedular rating for limitation of extension of the thigh under DC 5251, there is no basis to award a higher rating. Left Hip Flexion The Veteran is assigned a noncompensable rating for left hip limited flexion. See June 2017 rating decision. To warrant a higher rating under DC 5252, the evidence must show flexion limited to 45 degrees. The preponderance of the evidence shows flexion to, at worst, 60 degrees. The Board gives probative weight to the July 2021 VA examination findings because the examiner considered additional range of motion loss due to repeated use over time and flareups. The Board acknowledges the Veteran's lay reports of symptoms and functional loss, including difficulty with walking, climbing, and transferring positions. Even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating flexion limited to 45 degrees. Therefore, a compensable rating for left hip limited flexion is not warranted. Left Abduction The Veteran is assigned a 20 percent rating for left hip limited abduction. See June 2017 rating decision. As the Veteran is in receipt of the highest schedular rating under DC 5253, there is no basis to award a higher rating. 2. Left Leg Shortening The Veteran's residual left leg shortening is rated under Diagnostic Code 5275. 38 C.F.R. § 4.71a. Under Diagnostic Code 5275, a 10 percent rating is warranted for lower extremity shortening that is 1 1/4 to 2 inches (3.2 cms. to 5.1 cms.). A 20 percent rating is warranted for lower extremity shortening that is 2 to 2 1/2 inches (5.1 cms. to 6.4 cms.). A 30 percent rating is warranted for lower extremity shortening that is 2 1/2 to 3 inches (6.4 cms. to 7.6 cms.). A 40 percent rating is warranted for lower extremity shortening that is 3 to 3 1/2 inches (7.6 cms. to 8.9 cms.). A 50 percent rating is warranted for lower extremity shortening that is 3 1/2 to 4 inches (8.9 cms. to 10.2 cms.). A 60 percent rating is warranted for lower extremity shortening that is over 4 inches (10.2 cms.). The May 2017 VA examination noted his left leg was 2 cm shorter than his right leg. The June 2020 VA examination noted his left leg was 7 cm shorter than his right leg. The July 2021 VA examination noted his left leg was 3.5 cm shorter than his right leg. The Veteran is assigned a 10 percent rating for residual left leg shortening prior to June 16, 2020, and a 30 percent rating thereafter. Prior to June 16, 2020, the preponderance of the evidence is against finding lower extremity shortening that is 2 to 2 1/2 inches (5.1 cms. to 6.4 cms.). From June 16, 2020, the preponderance of the evidence is against finding lower extremity shortening that is 3 to 3 1/2 inches (7.6 cms. to 8.9 cms.). The Board gives probative weight to the VA examination findings regarding leg length because the examiners physically examined and measured the Veteran's extremities. Accordingly, a rating in excess of 10 percent for residual left leg shortening prior to June 16, 2020, and a rating in excess of 30 percent thereafter, is denied. 3. Left Leg Scar The Veteran is assigned a noncompensable rating for residual scar, status post osteomyelitis surgery, under Diagnostic Code 7805. The Board notes VA amended the criteria for rating skin disabilities effective from August 13, 2018. Diagnostic Code 7805 was not changed by the August 13, 2018 amendments. Diagnostic Code 7805 instructs that any disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate Diagnostic Code. The preponderance of the evidence is against the assignment of a compensable rating under Diagnostic Code 7805, as there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04. The Board gives probative weight to the Veteran's statements that his scar is not painful. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board gives probative weight the VA examination findings regarding the Veteran's scar because the examiners physically examined and observed the scar. The preponderance of the evidence is against finding the Veteran's left leg scar is painful or unstable, deep and nonlinear, associated with underlying soft tissue damage, or covering an area of 144 square inches or greater. Therefore, Diagnostic Codes 7800, 7801, 7802, and 7804, both prior to and from August 13, 2018, are inapplicable. In conclusion, the preponderance of the evidence is against a compensable rating for the Veteran's left leg scar. REASONS FOR REMAND The Veteran's combined disability rating does not meet the schedular requirements for TDIU. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Nevertheless, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable due to service-connected disabilities, but who do not meet the schedular percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director, Compensation Service, for extraschedular consideration. The Veteran's service-connected disabilities, employment history, educational level, and vocational attainment must be considered. See 38 C.F.R. § 4.16(b). The standard for referral is whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). The evidence shows the Veteran's left leg shortening and left hip issues prevent him from being able to move freely. The record documents difficulty with standing, walking, climbing, moving to different position, and using two canes to get around. The Veteran stated his ability to retain employment for so long was due to the fact he was self-employed as a goldsmith. The Board finds sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities to warrant referral. The matters are REMANDED for the following action: Refer the issue of entitlement to a TDIU to the Director, Compensation Service, for extraschedular consideration. Include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). Tess Winkler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.