Citation Nr: 21073904 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 18-39 293 DATE: December 13, 2021 ORDER Prior to August 28, 2014, entitlement to a disability rating in excess of 10 percent for limitation of extension of the left hip is denied. Prior to August 28, 2014, entitlement to a disability rating in excess of 10 percent for limitation of flexion of the left hip is denied. Prior to August 28, 2014, entitlement to an initial compensable rating for an impairment of the left thigh, to include limitation of abduction, adduction, or rotation, is denied. From July 1, 2015 to March 21, 2021, entitlement to a disability rating in excess of 30 percent for a left hip disability, status post total hip arthroplasty is denied. From March 22, 2021, entitlement to a disability rating in excess of 50 percent for a left hip disability, status post total hip arthroplasty is denied. FINDINGS OF FACT 1. For the period prior to August 28, 2014, the Veteran's left-hip disability, specifically his limitation of extension, was rated at the schedular maximum. 2. For the period prior to August 28, 2014, the Veteran's left-hip flexion was not limited to more than 45 degrees, nor was the limitation of abduction such that motion was lost beyond 10 degrees. 3. For the period of July 1, 2015 through March 21, 2021, the Veteran's left hip, status post total hip arthroplasty, did not manifest as moderately severe residuals. 4. As of March 22, 2021, the Veteran's left hip, status post total hip arthroplasty, displayed moderately severe residuals with weakness, pain, and/or limitation of motion. CONCLUSIONS OF LAW 1. For the period prior to August 28, 2018, the criteria for a disability rating in excess of 10 percent for limitation of extension of the left hip are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156 (c), 3.400, 4.1-4.10, 4.124, Diagnostic Code (DC) 5251. 2. For the period prior to August 28, 2014, the criteria for a disability rating in excess of 10 percent for limitation of flexion of the left hip are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156 (c), 3.400, 4.1-4.10, 4.124, DC 5252. 3. For the period prior to August 28, 2014, the criteria for an initial compensable rating for an impairment of the left hip, to include limitation of abduction, adduction, or rotation, are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156 (c), 3.400, 4.1-4.10, 4.124, DC 5253. 4. For the period of July 1, 2015 through March 21, 2021, the criteria for a disability rating in excess of 30 percent for a left hip disability, status post total hip arthroplasty, are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156 (c), 3.400, 4.1-4.10, 4.124, DC 5054. 5. As of March 22, 2021, the criteria for a disability rating in excess of 50 percent for a left hip disability, status post total hip arthroplasty are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156 (c), 3.400, 4.1-4.10, 4.124, DC 5054. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from October 1974 to September 1977, and from February 2003 to September 2003. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) December 2014 rating decision of the Agency of Original Jurisdiction (AOJ). In July 2020 the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the July 2020 remand, the Board finds that the AOJ conducted additional development as directed, and that there has been substantial compliance with the remand directives. Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). 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 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.").] The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention 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. The United States Court of Appeals for Veterans Claims (Court) previously indicated that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). However, the Court later suggested that the plain language of 38 C.F.R. § 4.59 indicates that it is potentially applicable to the evaluation of musculoskeletal disabilities involving joint or periarticular pathology that are painful, whether or not evaluated under a diagnostic code predicated on range of motion measurements. Correia v. McDonald, 28 Vet. App. 158 (2016); Southall-Norman v McDonald, 28 Vet. App. 346 (2016). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court noted that the VA Clinician's Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from a veteran. When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. For the period prior to August 28, 2014, entitlement to a disability rating in excess of 10 percent for limitation of extension of the left hip 2. For the period prior to August 28, 2014, entitlement to a disability rating in excess of 10 percent for limitation of flexion of the left hip 3. For the period prior to August 28, 2014, entitlement to an initial compensable rating for an impairment of the left thigh, to include limitation of abduction, adduction, or rotation The Veteran claims that, prior to August 28, 2014, his left hip disability warrants a higher evaluation. In this regard, prior to August 28, 2014, the Veteran has been assigned separate ratings for his left hip disability. He was assigned a 10 percent rating effective from July 21, 2006 for left hip osteoarthritis based on limitation of flexion of the thigh pursuant to Diagnostic Code 5252; and a separate zero percent rating for left hip osteoarthritis based on impairment of the thigh pursuant to Diagnostic Code 5253 effective February 25, 2011. In a December 2014 rating decision, the AOJ granted a temporary total rating based on the Veteran's left hip replacement effective from April 26, 2014 and assigned a single 30 percent rating from July 1, 2015 pursuant to Diagnostic Code 5054. Effectively the 10 percent rating which had been assigned pursuant to Diagnostic Code 5252 was changed to Diagnostic Code 5054 and the left hip disability recharacterized. The rating for the left hip pursuant to Diagnostic Code 5253 was discontinued effective April 28, 2014 as both separate ratings were essentially combined into one rating under Diagnostic Code 5054. Most recently, on remand and in a March 2021 rating decision, the AOJ, in pertinent part, granted service connection and a retroactive separate 10 percent rating for the Veteran's left thigh disability manifested by limitation of extension effective from February 25, 2011, the date of the Veteran's claim through April 28, 2014, the date of the assignment of a temporary total rating based on the Veteran's hip replacement surgery. As noted, this is the maximum schedular evaluation for limitation of extension of the thigh applicable to the time period under consideration. Thus, the Board must determine whether prior to April 28, 2014, the Veteran's three separate ratings for his left hip disability warranted higher ratings under Diagnostic Codes 5251 (in excess of 10 percent) 5252 (in excess of 10 percent), 5253 (in excess of 0 percent). DC 5251 affords a single 10 percent disability based on limitation of extension of the thigh when extension is limited to 5 degrees. 38 C.F.R. § 4.71a, DC 5251. DC 5252 compensates based on limitation of flexion of the thigh. Under the applicable rating criteria, a 10 percent rating is assigned for flexion limited to 45 degrees. Flexion limited to 30 degrees is afforded a 20 percent rating. Flexion limited to 20 degrees is afforded a 30 percent rating. Finally, a 40 percent rating is assigned for flexion of the thigh limited to 10 degrees. 38 C.F.R. § 4.71a, DC 5252. Impairment of the thigh, including limitation of abduction, adduction or rotation, is compensated under DC 5253. Under the applicable rating criteria, limitation of abduction of the thigh, with motion lost beyond 10 percent, is afforded a 20 percent rating. Limitation of adduction of the thigh, implying an inability to cross the legs, is afforded a 10 percent rating. Limitation of rotation, described as an inability to toe-out more than 15 degrees in the affected leg, is afforded a 10 percent rating. 38 C.F.R. § 4.71a, DC 5253. To the extent that the Veteran has been assigned multiple ratings for his left hip disability at various times throughout the appeal period, the Board is cognizant that the assignment of multiple ratings based on the same symptoms or manifestations constitutes prohibited pyramiding. 38 C.F.R. § 4.14. In August 2011 the Veteran was seen for a VA examination to determine the severity of his left-hip disability. The examiner noted that the Veteran's flexion was limited to 50 degrees, and that the Veteran was able to cross his legs. While the Veteran's abduction was limited, motion was not lost beyond 10 degrees. Given that the precedential cases of Sharp and Correia had yet to be decided at the time of this examination, the examiner did not address flare-ups as comprehensively as VA examinations currently do. However, the examiner did ask the Veteran about any flare-ups, and the Veteran only complained about flare-ups regarding his thoracolumbar disability and made no mention of flare-ups in his hip. The Veteran was next seen for a VA examination in July 2012. As was the case earlier, the flexion in his left hip was limited to 50 degrees. His extension was greater than 5 degrees, and no abduction beyond 10 degrees was lost. However, the adduction was limited in such a way that the Veteran was unable to cross his legs. The Veteran did describe experiencing flare-ups, but there was no indication the flare-ups led to any additional loss of range-of-motion. Rather, the flare-ups made activities such as walking and climbing stairs more difficult. In March 2021, pursuant to the earlier Board remand, the Veteran was seen for another VA examination. The examiner noted that, more than seven years after the fact, it would be "mere speculation" to opine on the impact of flare-ups beyond what the Veteran had already reported in his contemporaneous medical examinations. The Board finds that, for the period prior to August 28, 2014, a disability rating in excess of 10 percent for the Veteran's left-hip disability is not warranted. The Veteran does not meet the criteria for a 10 percent disability rating under DC 5252 as at no point was his flexion limited to at least 45 degrees. A 10 percent rating under DC 5253 applies, as the Veteran's adduction was limited such that he was unable to cross his legs. A higher 20 percent rating under DC 5253 is not warranted as abduction was not lost beyond 10 degrees. The Board notes that 2011 and 2012 examinations are not fully compliant with Sharp or Correia, given that the medical opinions predate the two precedential decisions. However, the medical evidence since the prior Board remand shows that any attempt to quantify the impact of flareups would be mere speculation, and medical opinions cannot be given with any degree of certainty. In the instant case, the Board finds that the competent, probative medical evidence of record establishes that for the period prior to August 28, 2014, a disability rating in excess of 10 percent for a left-hip disability is not warranted. As discussed above, a separate rating under DC 5251 is not warranted as the Veteran's extension was not sufficiently limited. Similarly, a separate rating under DC 5252 is not applicable given that the Veteran's flexion was only limited to 50 degrees. A higher 20 percent rating under 5253 is not warranted as the Veteran's abduction was not limited such that movement was lost beyond 10 degrees. Therefore, a higher rating for limitation of motion is not warranted. The Board recognizes the Veteran's contemporaneous claims of difficulty walking, standing, and utilizing stairs, but such difficulties are fully contemplated by the assigned disability ratings. The Board considered the Veteran's reported symptoms in conjunction with the clinical findings of record and determines that higher and/or separate ratings for the left hip disability are not warranted at this time. The preponderance of the evidence is against evaluations higher than those assigned by the AOJ at the time. As such, the benefit-of-the-doubt doctrine is inapplicable. 38C.F.R. §4.3. 4. For the period of July 1, 2015 to March 21, 2021, entitlement to a disability rating in excess of 30 percent for a left-hip disability, status post total hip arthroplasty 5. from March 22, 2021, entitlement to a disability rating in excess of 50 percent for a left-hip disability, status post total hip arthroplasty In 2014, the Veteran underwent a total hip arthroplasty on his left hip. After the statutory convalescence period, wherein a temporary 100 percent disability rating was assigned, the Veteran was assigned a 30 percent disability rating as of July 1, 2015. On March 22, 2021, the Veteran's disability rating was increased to 50 percent to reflect the progression of his condition. The Veteran asserts that his disability warrants higher ratings. After the 13-month convalescent period at 100 percent ends, a minimum of 30 percent is assigned. If there are moderately severe residuals of weakness, pain, or limitation of motion, then a 50 percent rating is warranted. If there are markedly severe residual weakness, pain, or limitation of motion, then a 70 percent rating is warranted. If there is painful motion or weakness such as to require the use of crutches, then a 90 percent rating is warranted. 38 C.F.R. § 4.71a, DC 5054. A 90 percent rating is the highest rating permitted for the hip, aside from the periods where a 100 percent rating is expressly permitted. 38 C.F.R. §§ 3.343 (a), 4.68, 4.71a, DC 5054. The Board acknowledges that the criteria for musculoskeletal disabilities in 38 C.F.R. § 4.71a were amended, effective February 7, 2021, and the "new" schedular criteria are applicable as of that date. 85 Fed. Reg. 76453 (Nov. 30, 2020). Diagnostic code 5054 is one such rating provision that has been amended. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g). If the revised version of the regulation 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. See 38 U.S.C. § 5110. 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 to the Veteran will be applied. As of February 7, 2021, under 5054, there is a minimum 30 percent disability rating. A 50 percent rating is warranted when there is "moderately severe residuals of weakness, pain, or limitation of motion." A 70 percent rating is applicable when there are "markedly severe" residuals of weakness, pain, or limitation of motion, while a 90 percent rating is necessary when the residuals require the use of crutches. There is no higher disability rating under DC 5054. In December 2014, several months after his surgery, the Veteran submitted an improperly-filed Notice of Disagreement requesting a permanent 100 percent disability rating on the basis of "pain," and the necessity of painkillers. However, a June 2016 VA examination noted that the Veteran was able to walk "unaided," and "does not use a cane, crutches, or a walker." The examiner also noted that the Veteran "is not unsteady." In August 2018 the Veteran submitted another statement, claiming he was still having pain in left hip." The Veteran's post-surgery medical records generally do not show any evidence of the Veteran requiring assistive devices, other than a back brace, to ambulate, or any indication of moderately severe pain that is applicable solely to his left hip. While the Veteran's claims of experiencing pain, and the need to treat the pain with medication, are credible, the Board notes that over the period of appeal the Veteran was also complaining of lower back pain, as well as left-leg pain. There is no competent or credible medical evidence showing that prior to March 22, 2021, the Veteran experienced moderately severe residuals of weakness, limitation of motion, or pain specifically due to his prior total hip arthroplasty. It was not until March 22, 2021, where there is objective medical evidence of worsening of the Veteran's left-hip disability. At that time, a VA examiner found that the Veteran experienced moderately severe residuals of weakness, pain, or limitation of motion. This was based on an in-person examination of the Veteran, which included a comprehensive review of the Veteran's lay reports of his symptoms, as well objective range-of-motion testing of the joint. The Board finds that the competent, credible, and probative evidence shows that, prior to March 22, 2021, the Veteran did not experience moderately severe residuals of weakness, limitation of motion, or pain (specific to his left-hip disability) due to his total hip arthroplasty. Therefore, for the period of appeal from July 1, 2015 through March 21, 2021, a higher 50 percent rating is not warranted under DC 5054. As of March 22, 2021, the competent, credible, and probative evidence shows that the residuals of the Veteran's total hip arthroplasty manifest as moderately severe weakness, pain, and/or limitation of motion. A higher 70 percent rating is not warranted as there are no markedly severe residuals of weakness, pain, and/or limitation of motion following the implantation of a prosthesis. The Board notes that, as of February 7, 2021, a higher rating under the amended DC 5054 is not warranted either, because as noted above the evidence does not show that the Veteran experiences markedly severe residual weakness, pain, or limitation of motion. (Continued on the next page) The Board considered the Veteran's reported symptoms in conjunction with the clinical findings of record and determines that higher and/or separate ratings for the left hip disability are not warranted at this time. The preponderance of the evidence is against evaluations higher than those assigned by the AOJ at the time. As such, the benefit-of-the-doubt doctrine is inapplicable. 38C.F.R. §4.3. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.