Citation Nr: 21075333
Decision Date: 12/20/21	Archive Date: 12/20/21

DOCKET NO. 18-54 553
DATE: December 20, 2021

ORDER

1. Entitlement to an initial compensable rating for right hip strain with limitation of flexion is denied.

2. Entitlement to an initial compensable rating for a right hip strain with impairment of thigh is denied.

3. Entitlement to an initial rating in excess of 10 percent for lumbosacral strain is denied.

REMANDED

4. Entitlement to a total disability rating for compensation based on individual unemployability due to service connected disabilities (TDIU) on an extraschedular basis is remanded for referral to the Director of Compensation Service.

FINDINGS OF FACT

1. Right hip strain with limitation of flexion has not been manifested by flexion limited to 45 degrees or less.

2. Right hip strain with impairment of thigh has not been manifested by limitation of motion preventing the Veteran from toeing-out more than 15 degrees, or in limitation of abduction preventing the Veteran from crossing his legs. 

3. Lumbosacral strain has not been manifested by forward flexion of the thoracolumbar spine to 60 degrees or less; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

CONCLUSIONS OF LAW

1. The criteria for an initial compensable rating for right hip strain with 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 (DC) 5252.

2. The criteria for an initial compensable rating for a right hip strain with impairment of thigh 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, DC 5253.

3. The criteria for an initial rating in excess of 10 percent for lumbosacral strain have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5237.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the Army from February 2004 to December 2004 and from February 2009 to March 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision that granted service connection for lumbosacral strain and multiple hip disabilities. The Veteran was scheduled to have a hearing before the Board on August 20, 2021. On the day of the scheduled hearing, the Veteran cancelled, claiming through his representative that he was withdrawing his appeal. However, a request for withdrawal of an appeal must be in writing and signed. The Board sent a letter to the Veteran in September 2021, asking him to submit a written request for any issues/claims that he wished to withdraw. No response has been received from the Veteran and, as such, the within claims will be decided on the merits herein. 

INCREASED RATING

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects the Veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing the Veteran's symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. § Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

In determining the severity of a disability, if the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40.

Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. However, those provisions should only be considered in conjunction with the diagnostic codes (DCs) predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45.

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable DC.

1. Right hip strain with limitation of flexion

The Veteran has a noncompensable rating under Diagnostic Code 5252 for impairment of the thigh. Under DC 5252, a 10 percent rating requires flexion of the thigh limited to 45 degrees; a 20 percent rating requires flexion limited to 30 degrees; a 30 percent rating requires flexion limited to 20 degrees; and a 40 percent rating requires flexion limited to 10 degrees. 38 C.F.R. § 4.71a, DC 5252.

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an award of increased rating. The reasons follow.

Initially, the Board notes that the Veteran was awarded an initial 10 percent rating for limitation of extension of the right hip under DC 5251. Thus, the Veteran is in receipt of a compensable rating for painful motion of the right hip. In order for him to be entitled to a separate, compensable rating for limitation of extension, the Veteran's painful flexion must reach the level of a compensable rating under DC 5252. 

A January 2018 VA examination report involving the hips shows that the Veteran reported that pain inhibits his mobility and hip function, and that he experiences pain and stiffness with walking, standing, climbing stairs, and sitting. He said his pain worsens with activity, and he is unable to work out or perform work duties. On range of motion testing, the Veteran recorded flexion to 80 degrees, extension to 20 degrees, abduction to 25 degrees, adduction to 15 degrees, external rotation to 35 degrees, and internal rotation to 20 degrees. Adduction was not so limited such that it would prevent the Veteran from crossing his legs. There was no additional loss of function or range of motion after three repetitions. The examiner documented pain, weakness, fatigability, and incoordination did not significantly limit the Veteran's functional ability with repeated use over time. The examination was not performed during a flare-up and the examiner stated that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during a flare-up. The examiner was unable to say if pain, weakness, fatigability, or incoordination significantly limit the Veteran's functional ability without resorting to mere speculation and that an examination during flare-up would be necessary for such a pronouncement. The Veteran recorded some reduced strength in the hips, and the Veteran was noted to use a cane; however, an x-ray of the Veteran's hips was negative. 

The Veteran underwent another VA examination in July 2019. The Veteran reported similar symptomology but with overall worsening of his condition. He stated that he experiences weekly flare-ups and that physical activity is difficult because of his hip impairments. On range of motion testing, the Veteran recorded flexion to 60 degrees, extension to 15 degrees, abduction to 20 degrees, adduction to 15 degrees, external rotation to 30 degrees, and internal rotation to 20 degrees. Adduction was not so limited such that it would prevent the Veteran from crossing his legs. Pain was observed to cause functional loss with range of motion. The examination was not performed during a flare-up with observed repetitive use testing. The examiner stated that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-up or with repetitive use over time. The examiner stated that pain, weakness, fatigability, or incoordination do not significantly limit functional ability with repeated use over time or during a flare-up. After review of the record, including the order request, disability benefits questionnaire, physical exam, reported history and subjective complaints, relevant evidence of record and the examiner's own medical knowledge and expertise, the examiner found no basis to offer additional losses of function or motion with repeated use over time. The Veteran was noted to use a cane; however, the Veteran recorded full strength on this examination. He reported that he receives some relief with the use of medication, but denied current physical, occupational, or chiropractic treatment for his hips. 

The record demonstrates generally stable functioning without significant exacerbations of the Veteran's condition requiring urgent or inpatient treatment since the time of his last VA examination.

The Board notes that the Veteran's representative has argued that the July 2019 VA examination is inadequate because it did not adequately address additional motion loss due to pain or during flare-ups, pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The representative stated that in Sharp the United States Court of Appeals for Veterans Claims (Court) held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. Furthermore, the representative stated that the Court held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner.

However, the Board finds the representative's argument to be unpersuasive, as the July 2019 examination is inconsistent with the circumstances described in Sharp. Given the option, the July 2019 examiner did not state that he was unable to say, without mere speculation, whether pain, weakness, fatigability, or incoordination significantly limit the Veteran's functional ability with repeated use over time or during flare-up. Rather, the examiner specifically stated that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over time or during flare-ups. The examiner explicitly stated that this finding was based on a review of the evidence of record, including physical examination, reported history and subjective complaints, relevant evidence of record and the examiner's medical knowledge and expertise, none of which provided a basis for finding additional loss of function with repeated use over time or during flare-up. This is not the context addressed in Sharp, which, as stated in the representative's August 2021 brief, refers to instances when an examiner is unable to estimate whether there is additional functional loss with repeated use over time or during flare-up. 

The Board finds the July 2019 VA examination report to be adequate and probative, as it was performed by a medical professional, who documented the clinical findings based upon a physical examination. The preponderance of the evidence is against the award of increased rating for right hip strain with limitation of flexion. Specifically, objective testing does not reveal limitation of flexion of the thigh to 45 degrees or less. Additionally, the Board notes that the evidence does not support an award for an increased rating at any point of the appeal period for the right hip under DC 5250 for ankylosis of the hip or DC 5255 for impairment of the femur. 38 C.F.R. § 4.71a, DCs 5250, 5255. 

The Board has considered whether a higher rating should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria, but a higher rating is not warranted for the Veteran's disability picture. See DeLuca v. Brown, 8 Vet. App. at 206-07 (1995); Mitchell v. Shinseki, 25 Vet. App. at 42-43 (2011). The weight of the evidence does not show functional loss from pain, weakness, or fatigability beyond that which is contemplated by the Veteran's rating, as noted by the July 2019 VA examiner. Furthermore, the Board notes that the Veteran's pain symptoms are contemplated by the Veteran's separate, 10 percent disability rating for right hip strain, limitation of extension, under DC 5251, which is not currently on appeal. 

In sum, the preponderance of the evidence is against a compensable rating for the right hip disability based on limitation of flexion. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not applicable, and the Veteran's claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

2. Right hip strain with impairment of thigh

The Veteran has a noncompensable rating under Diagnostic Code 5253 for impairment of the thigh. Under DC 5253, a 10 percent rating is warranted where there is limitation of adduction preventing a veteran from crossing legs. Alternately, a 10 percent rating is warranted where there is limitation of rotation of the leg preventing a veteran from toeing-out more than 15 degrees. A maximum schedular 20 percent rating is warranted for limitation of abduction of the thigh with motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, DC 5253.

The above discussion relating to the Veteran's 2018 and 2019 VA examinations is incorporated herein. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an award of increased rating for right hip strain with impairment of thigh. The reasons follow.

As noted above, the Veteran was awarded an initial 10 percent rating for limitation of extension of the right hip. Thus, the Veteran is in receipt of a compensable rating for painful motion of the right hip. In order for him to be entitled to a separate, compensable rating for impairment of the thigh, such impairment must reach the level of a compensable rating under DC 5253. 

As noted above, the evidence of record does not show the Veteran to meet the requirements of a compensable disability rating under DC 5253. Specifically, the Veteran's multiple VA examinations do not show limitation of adduction preventing the Veteran from crossing his legs, or limitation of rotation preventing toeing-out more than 15 degrees. The Board has considered whether a higher rating should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria, but a higher rating is not warranted for the Veteran's disability picture. The weight of the evidence does not show functional loss from pain, weakness, or fatigability beyond that which is contemplated by the Veteran's rating, as noted by the July 2019 VA examiner. Furthermore, the Board notes that the Veteran's pain symptoms are contemplated by the Veteran's separate, 10 percent disability rating for right hip strain based upon limitation of extension under DC 5251, which is not currently on appeal. Although the Board is required to consider the effect of pain when making a rating determination, it is important to emphasize that the rating schedule does not provide a separate rating for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). 

In sum, the preponderance of the evidence is against a compensable rating for the right hip strain with impairment of thigh. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not applicable, and the Veteran's claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

3. Lumbosacral strain

The Veteran's service-connected lumbosacral strain is currently rated as 10 percent disabling under DC 5237 of the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a.

The General Rating Formula provides the following, in pertinent part: a 20 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a maximum schedular 100 percent disability rating is assigned for unfavorable ankylosis of the entire (thoracolumbar and cervical) spine. These ratings are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the musculoskeletal system and muscle injuries. 85 Fed. Reg. 76453 (November 30, 2020). The final rule went into effect on February 7, 2021. However, the February 2021 revision did not change the rating criteria for Diagnostic Code 5243. However, it clarified for what conditions this Diagnostic Code applies. Namely, Diagnostic Code 5243 prior to February 2021 applies to intervertebral disc syndrome (IVDS). 38 C.F.R. § 4.71a (2020). However, under the revised regulation effective February 2021, Diagnostic Code 5243 applies to IVDS when there is disc herniation with compression and/or irritation of the adjacent nerve root. As the Veteran is not service connected for intervertebral disc syndrome, and the 2018 VA examination report shows the examiner did not find that the Veteran had the diagnosis, the facts of this care are not impacted by the change. . 

The Veteran underwent a VA examination of the lumbar spine in February 2018. The Veteran reported flare-up, pain, and reduced functioning with prolonged activity. On range of motion testing, the Veteran recorded flexion to 75 degrees, extension to 15 degrees, bilateral lateral flexion to 30 degrees and bilateral lateral rotation to 30 degrees. Pain was noted, but the examiner found it did not result in functional loss. There was no additional functional loss on observed repetitive use. The examiner responded, "No" to the question of whether pain, weakness, fatigability, or incoordination limited function ability with repeated use over a period of time. The Veteran was noted to have no guarding or muscle spasm of the thoracolumbar spine. The Veteran had no muscle atrophy and no ankylosis. An x-ray of the Veteran's lumbar spine was normal. The Veteran's disability was found not impact his ability to work.  

The preponderance of evidence of record is against the award of a disability in excess of 10 percent. Specifically, the Veteran does not have forward flexion of the thoracolumbar spine limited to 60 degrees or less; combined range of motion of the thoracolumbar spine limited to 120 or less; or, muscle spasm, or guarding severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis. On examination, the Veteran's forward flexion was measured to 75 degrees, and combined range of motion was measure to 210 degrees. The Veteran has not been found to have muscle spasm or guarding. The Veteran's pain symptoms are contemplated by the Veteran's existing 10 percent disability rating, as the rating criteria specifically contemplate pain. Additionally, the Veteran has not exhibited ankylosis or limitation of flexion to 30 degrees or less in order to support an increased rating of 40 percent or higher. The Veteran had mostly full muscle strength except for hip flexion, which was only slightly decreased. Thus, a rating in excess of 10 percent under the provisions of 38 C.F.R. §§ 4.40, 4.45 is not approximated in the Veteran's disability picture for the period on appeal

For the reasons stated above, the preponderance of the evidence is against the claim for a higher initial rating for the Veteran's lumbosacral strain. Therefore, the benefit of the doubt doctrine is not for application, and the Veteran's claim for an initial increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

REASONS FOR REMAND

4. Entitlement to a TDIU rating on an extraschedular basis 

The Board has jurisdiction on the issue of TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation). In July 2019, the Veteran submitted a VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, indicating that lower back, hip, and leg pain prevent him from securing or following any substantially gainful employment.

Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, the disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and enough additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

As a preliminary matter, the Veteran's service-connected disabilities do not meet the percentage requirements for a schedular TDIU under 38 C.F.R. § 4.16(a). The Veteran is service connected for right sciatic radiculopathy associated with lumbosacral strain, 10 percent disability rating from February 8, 2017, and 20 percent disability rating from July 12, 2019; lumbosacral strain, 10 percent disability rating from February 8, 2017; right hip strain, limitation of extension, 10 percent disability rating from February 8, 2017; left hip strain, limitation of flexion, 10 percent disability rating from February 8, 2017; left hip strain, limitation of flexion, 10 percent disability rating from July 12, 2019; right hip strain, limitation of flexion, noncompensable rating from February 8, 2017; right hip strain, impairment of thigh, noncompensable rating from February 8, 2017; and left hip strain, impairment of thigh, noncompensable rating from July 12, 2019. Thus, the Veteran had a combined disability rating of 40 percent from February 8, 2017, and 50 percent from July 12, 2019. 

When the percentage requirements are not met, entitlement to a TDIU rating may be considered on an extraschedular basis when the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, and then refer the issue to the Director of the Compensation Service (Director), for a determination in the first instance as to whether the Veteran is entitled to a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b).  

Pursuant to Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the Court held that when denying an extraschedular TDIU referral to the Director under 38 C.F.R. § 4.16(b), the Board must make two determination in its decision: (1) that there is not sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable due to service connected disabilities; and (2) that TDIU benefits are not warranted because the veteran is not unable to obtain and sustain financially gainful employment due to service-connected disabilities.

In the present matter, there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable due to service-connected disabilities. VA examinations have shown the Veteran's service connected disabilities cause functional limitations such as weakness, moderate pain and guarding with range of motion, affecting gait, lifting and carrying heavy loads, and prolonged standing and walking. The Veteran has participated in some vocational rehabilitation efforts through VA; however, associated reports state that it "cannot be determined whether achievement of a vocational goal is reasonably feasible because [the Veteran] lacks transferable skills and/or education and training for suitable employment due to physical limitation caused by impediments." While records indicate that the Veteran has experienced improved functioning with treatment, and that separate factors exist that contribute to the Veteran's unemployability which are not associated with his service-connected disabilities, there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable due to service connected disabilities. Accordingly, referral to the Director for extraschedular TDIU consideration is warranted. 

The matter is REMANDED for the following action:

Refer the Veteran's TDIU claim to the Director, Compensation Service, for extraschedular consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b). A copy of the Director's decision on this claim must be included in the claims file.

 

 

A. P. SIMPSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Wonderling, 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.