Citation Nr: 21075525
Decision Date: 12/20/21	Archive Date: 12/20/21

DOCKET NO. 17-26 102
DATE:  December 20, 2021

ORDER

An initial compensable disability rating prior to January 3, 2020, and a rating in excess of 10 percent since January 3, 2020, for the service-connected residuals, status post left ankle surgery (left ankle disability) is denied. 

An initial disability rating in excess of 10 percent prior to January 3, 2020, and a rating in excess of 20 percent since January 3, 2020, for the service-connected lumbar strain is denied. 

An initial compensable disability rating for the service-connected left hip degenerative changes (left hip disability) is denied. 

REMANDED

An initial disability rating in excess of 10 percent for the service-connected right foot plantar fasciitis, plantar calcaneal enthesophyte is remanded.

FINDINGS OF FACT

1. Prior to January 3, 2020, the Veteran's service-connected left ankle disability was not manifested by at least moderate limited motion. 

2. Since January 3, 2020, the Veteran's service-connected left ankle disability has not more nearly approximated marked limited motion.

3. Prior to January 3, 2020, the Veteran's service-connected lumbar strain was not manifested by forward flexion of his 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; or intervertebral disc syndrome (IVDS). 

4. Since January 3, 2020, the Veteran's service-connected lumbar strain has not been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, or IVDS.

5. For the entire period on appeal, the Veteran's service-connected left hip disability has been manifested with limitation of flexion to 115 degrees, at worst.

CONCLUSIONS OF LAW

1. Prior to January 3, 2020, the criteria for an initial compensable disability rating for a left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5271. 

2. Since January 3, 2020, the criteria for an initial disability rating in excess of 10 percent for the service-connected left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10-4.14, 4.40, 4.45, 4.59, 4.71a, DC 5271.

3. Prior to January 3, 2020, the criteria for an initial disability rating in excess of 10 percent for the service-connected lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5237. 

4. Since January 3, 2020, the criteria for an initial disability rating in excess of 20 percent for the service-connected lumbar strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5237. 

5. For the entire period on appeal, the criteria for an initial compensable disability rating for the service-connected left hip disability manifested by limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5252-5003.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from October 1992 to January 2014. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In March 2019, the Board remanded these issues to associate with the claims file outstanding treatment records, and for the Veteran to undergo additional VA examinations, which were conducted in January 2020. The record also shows that outstanding treatment records were associated with the claims file in October 2019. Thus, there was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998).

In a September 2020 rating decision, the RO increased the evaluation of the Veteran's lumbar strain from 10 percent to 20 percent disabling, effective January 3, 2020; increased the evaluation of the left ankle disability from zero percent to 10 percent disabling, effective January 3, 2020; and assigned a separate rating for left hip degenerative changes, impairment. As the increased ratings do not represent the maximum assigned rating for each condition, these issues remain on appeal before the Board. 

Increased Ratings

Disability ratings are determined by applying the criteria set forth in VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate ratings are assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999).

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, 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 conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

In assigning a higher disability rating, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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 on 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 innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59.

Provision 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint).

The provisions of 38 C.F.R. § 4.59 recognize that painful motion is an important factor of disability. Joints that are painful, unstable, misaligned, or due to healed injury are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one factor to be considered when evaluating functional impairment).

The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Left Ankle Disability

The Veteran is currently in receipt of a noncompensable rating prior to January 3, 2020, and a 10 percent rating since January 3, 2020, for his service-connected left ankle disability. He is seeking higher ratings for each appeal period. After a thorough review of the evidence, the Board finds that higher ratings are not warranted for any of the periods on appeal. The reasons follow. 

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select DCs "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 

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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. 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.

Prior to the regulatory change, under DC 5271, a 10 percent rating was warranted for moderate limitation of motion. 38 C.F.R. § 4.71a. A 20 percent rating was warranted for marked limitation of motion. Id. For VA purposes, a normal range of ankle motion is from 45 degrees of plantar flexion to 20 degrees of dorsiflexion. 38 C.F.R. § 4.71, Plate II. As of February 7, 2021, under the amended criteria, a 10 percent rating is warranted for moderate limitation of motion (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). Id. A 20 percent rating is warranted for marked limitation of motion (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). Id. The amended criteria are more favorable to the Veteran and will be considered for determining if an increased disability rating is warranted for his left ankle disability.

There are additional DCs that apply to ankle disabilities. 38 C.F.R. § 4.71a, DC 5270 pertains to ankylosis of the ankle. 38 C.F.R. § 4.71a, DC 5272 pertains to ankylosis of the subastragalar or tarsal joint. 38 C.F.R. § 4.71a, DC 5273 pertains to malunion of the os calcis or astragalus. 38 C.F.R. § 4.71a, DC 5274 pertains to an astragalectomy.

The Veteran was afforded a VA examination in January 2014, where he reported flare-ups of the left ankle, described as sharp pain on top of the ankle. He stated that it was difficult to walk and that he experienced constant cracking of the ankle while walking or moving. Range of motion measurements revealed plantar flexion to 45 degrees or greater and dorsiflexion to 20 degrees or greater. The Veteran was able to perform repetitive-use testing with three repetitions, but there was no additional limitation in range of motion. He did not report having any functional loss or functional impairment of the ankle. It was noted that the Veteran had localized tenderness or pain on palpation of joints or soft tissue of the left ankle. Muscle strength testing results were all normal. The anterior drawer test and talar tilt test did not reveal any laxity. 

There was no muscle atrophy or ankylosis. It was noted that the Veteran did not have "shin splints," stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or a talectomy (astragalectomy). Imaging studies of the left ankle did not reveal any abnormal findings. The examiner remarked that there were contributing factors of pain, weakness, fatigability and/or incoordination, but no additional limitation of functional ability of the left ankle joint during flare-ups or repeated use over time. The examiner further noted that the Veteran did not have osteoarthritis in his left ankle. 

At a January 2020 VA examination, the Veteran reported having pain in his left ankle, with prolonged walking, standing, climbing, heavy lifting or carrying. He denied having flare-ups of his left ankle. Range of motion testing revealed plantar flexion to 45 degrees and dorsiflexion to 15 degrees, with pain. Range of motion did not contribute to functional loss. Pain noted on the examination did not result in functional loss. There was no evidence of pain with weight-bearing, non-weight bearing, or on passive range of motion testing. There was objective evidence of localized tenderness or pain on palpation of lateral ankle, moderate in severity. There was also objective 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 three repetitions. He was not examined immediately after repetitive use over time. The examiner indicated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. It was noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. As the Veteran did not report any flare-ups of the left ankle, he was not examined during a flare-up. Muscle strength was normal. There was no ankylosis. Ankle instability or dislocation was not suspected. The anterior drawer test and talar tilt test did not reveal any laxity. It was noted that the Veteran did not have "shin splints," stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or a talectomy (astragalectomy). The examiner noted that the Veteran's left ankle disability did not impact the Veteran's ability to perform any type of occupational task. 

The examiner remarked that, as the Veteran was not presenting at the examination after repetitive use over time, he was unable to determine what the range of motion would be if he had. The examiner reiterated that, since he had not seen or examined the Veteran after repetitive use over time, it would be unfair to the Veteran to guess on something about which he, the examiner, had no knowledge. He explained that it is not possible to give estimates of range of motion findings after repetitive use over time or during a flare-up while not seeing the Veteran in person during those conditions. He further explained that, while it is assumed that the examination findings would be worse during a flare or after repetitive use over time, the degree of worsening would not be known without an examination. Thus, he continued, this would require guessing and the potential for underestimating or overestimating the change.

The examiner also stated that, although the Veteran subjectively noted a decrease in range of motion during a flare or repetitive use over time, a review of the record failed to provide objective evidence to support this claim. He explained that a review of current peer reviewed orthopedic literature fails to provide convincing objective evidence (within 50 percent or greater probability) that range of motion would decrease due to repetitive motion or flares of the joint. He further reiterated that an objective assessment opinion of whether a flare or repetitive use over time would limit the Veteran's functional ability with regard to pain, weakness, fatigability or incoordination during a flare or repetitive use would require a clinical examination during the time of the flare or immediately after repetitive use over time. As previously stated, the Veteran denied having any flare-ups at the examination.

VA treatment records dated during the periods of appeal note that the Veteran experiences pain in his left ankle, but do not specify range of motion measurements or severity level.

Based on a review of the evidence, the Board finds that a compensable rating is not warranted for limitation of motion of the left ankle under the applicable rating criteria of DC 5271 prior to January 3, 2020. At no time during this appellate period did the evidence show that moderate limitation of motion of the left ankle was present, to warrant the next-higher 10 percent rating. See 38 C.F.R. § 4.71a, DC 5271. Instead, the January 2014 VA examination showed normal range of motion with dorsiflexion at 20 degrees or greater and plantar flexion at 45 degrees or greater. As previously stated, words such as "moderate" and "marked" were not defined in the VA Rating Schedule prior to February 7, 2021, which is applicable for the appellate period prior to January 3, 2020. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension." See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character." See www.merriam-webster.com/dictionary/marked. 

Here, as the Veteran's VA examination results reflected normal range of motion during this period, the Board finds the evidence reveals that the Veteran's left ankle disability did not rise to the level of moderate, to warrant the next-higher 10 percent rating. Further, although the examiner remarked that there were contributing factors of pain, weakness, fatigability, or incoordination, he stated that there was no additional limitation of functional ability of the left ankle joint during flare-ups or repeated use over time. Thus, since moderate limited motion of the left ankle was not shown prior to January 3, 2020, the Board concludes that the Veteran's left ankle disability is best contemplated by a noncompensable rating during this appellate period.

The Board also finds that a rating in excess of 10 percent is not warranted since January 3, 2020. During this appellate period, the evidence reveals that the Veteran's left ankle disability is best contemplated by the 10 percent rating criteria under DC 5271 for moderate limited motion, under both the old and new criteria. Under the new criteria, which is more favorable to the Veteran, the next-higher 20 percent rating is warranted when "marked" limitation of ankle motion is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. 38 C.F.R. § 4.71a, DC 5271 (2021). Based on the results of the January 2020 VA examination, the Veteran's plantar flexion and dorsiflexion are limited to, at worst, 45 degrees and 15 degrees, respectively. He has slightly limited range of motion, but the evidence does not show it to be more accurately described as "marked." At no point during the appeal period was there less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion, even after repetitive-use testing. Moreover, muscle strength testing results were all normal, with no ankylosis present. These factors weigh more in favor of what is described as "moderate" limited motion of the Veteran's left ankle, and less in favor of "marked' limitation of motion. There is also no evidence of malunion of the os calcis or astragalus or an astragalectomy. As such, the Board finds that a rating in excess of 10 percent is not warranted for the service-connected left ankle disability since January 3, 2020.

The Board has also considered whether higher ratings are warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. There is no probative evidence that these factors caused limitation of function equivalent to "moderate" limitation of motion prior to January 3, 2020, or "marked" limitation of motion thereafter. The preponderance of the evidence is against this claim. 38 C.F.R. § 4.3. A compensable disability rating prior to January 3, 2020, and in excess of 10 percent since January 3, 2020, for the service-connected left ankle disability is denied. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Lumbar Strain Disability

The Veteran contends that higher ratings would more accurately reflect the severity of his service-connected lumbar strain disability, which has been rated under DC 5237. 38 C.F.R. § 4.71a. Specifically, he was assigned a 10 percent rating from February 1, 2014 to January 2, 2020, and a 20 percent rating since January 3, 2020, for his lumbar strain.

The following ratings are available for DC 5237, lumbosacral strain, under the General Rating Formula for Diseases and Injuries of the Spine: 100 percent for unfavorable ankylosis of the entire spine; 50 percent for unfavorable ankylosis of the entire thoracolumbar spine; 40 percent for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; 20 percent for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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; and 10 percent for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. 

Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Plate V, 38 C.F.R. § 4.71a.

Prior to January 3, 2020, the Veteran's lumbar strain was evaluated at 10 percent disabling. In this regard, the Board notes that, at a January 2014 VA examination, the Veteran complained of constant pain in his lower back. He also described having flare-ups as lower back pain. Examination revealed forward flexion to 90 degrees or greater and to 70 degrees with pain, extension to 30 degrees or greater and to 25 degrees with pain, left and right lateral flexion to 30 degrees or greater, and left and right lateral rotation to 30 degrees or greater. Repetitive-use testing did not result in additional loss of function or range of motion. The examiner indicated that the Veteran had functional loss, functional impairment and/or additional limitation of range of motion of the thoracolumbar spine after repetitive-use due to pain on movement. The Veteran had localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine which was further described as tenderness midline lumbar spine. The examiner noted that the Veteran did not have muscle spasms or guarding of the thoracolumbar spine resulting in an abnormal gait or spinal contour. IVDS was not diagnosed. No other neurologic abnormalities were noted. There was no ankylosis. The examiner concluded that the Veteran's thoracolumbar spine condition did not impact the Veteran's ability to work. 

VA medical records show complaints of low back pain but no complete range of motion or other pertinent findings. Private medical records reflect treatment for low back pain in May 2014, but they contain no range of motion measurements or any other criteria used for rating purposes.

Given the above, prior to January 3, 2020, even considering functional loss due to pain and other factors, the Veteran's lumbar strain disability had not more nearly approximated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Despite the Veteran's reporting of pain, he was able to forward flex to at least 70 degrees, even after repetitive-use testing. The Board notes that the Veteran is competent to give evidence about observable symptoms such as back pain. Layno v. Brown, 6 Vet. App. 465 (1994). However, the objective evidence fails to show that he has the necessary limitation of range of motion to warrant a next-higher 20 percent rating. Further, IVDS was not diagnosed on examination. Thus, a higher evaluation based on limitation of motion is not warranted.

Since January 3, 2020, the Veteran's lumbar strain disability has been evaluated as 20 percent disabling. In this regard, the Board notes that, at a January 2020 VA examination, the Veteran reported shooting low back pain radiating to the buttocks, interior thighs, and the top of his feet at times. He denied having flare-ups. He also reported that he avoids excessive bending, twisting, prolonged walking, standing, or sitting, due to worsened pain. Examination revealed forward flexion to 60 degrees, extension to 20 degrees, left and right lateral flexion to 25 degrees, and left and right lateral rotation to 20 degrees. It was noted on examination that range of motion did not contribute to functional loss. Pain was noted on examination, but it did not result in functional loss. There was no evidence of pain with weight bearing. Repetitive-use testing did not reveal any additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time. The examiner indicated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. He further indicated that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability with repeated use over a period of time. There were no muscle spasms or guarding during the examination. There was no ankylosis. Muscle strength testing results were all normal. IVDS was not present. The examiner indicated that the Veteran's lumbar strain disability does not impact the Veteran's ability to work.

VA medical records since January 2020 show complaints of low back pain but no range of motion or other pertinent findings.

Given the above, from January 3, 2020, even considering functional loss due to pain and other factors, the Veteran's lumbar strain disability has not more nearly approximated forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The evidence of record does not support either finding. Despite the pain, the Veteran was able to forward flex to 60 degrees at the examination, and there was no additional loss of function or range of motion after repetitive-use testing. While the Veteran is competent to report that he has back pain, the objective evidence fails to show that he has the necessary limitation of range of motion to warrant a next-higher 40 percent rating. Thus, a higher evaluation based on limitation of motion is not warranted. There is also no evidence of IVDS to warrant a higher evaluation based on incapacitating episodes.

In conclusion, a disability rating in excess of 10 percent prior to January 3, 2020, and in excess of 20 percent since January 3, 2020 for the service-connected lumbar strain disability is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49.

Left Hip Degenerative Changes 

The Veteran contends a higher rating is warranted for his service-connected left hip disability, which has been evaluated under 38 C.F.R. § 4.71a, DC 5252-5003. Hyphenated diagnostic codes, as in this case, are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. For example, the use of DC 5252-5003 reflects that the service-connected left hip degenerative changes disability has been rated under DC 5252 for limitation of flexion of the thigh with reference to DC 5003 for arthritis. See 38 C.F.R. § 4.20.

Under DC 5252, a 10 percent rating is assigned when thigh flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; a 30 percent rating is assigned when flexion is limited to 20 degrees; and a 40 percent rating is assigned when flexion is limited to 10 degrees. 38 C.F.R. § 4.71 (a), DC 5252.

DC 5003 directs that a rating shall be awarded on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If noncompensable limitation of motion is demonstrated, a 10 percent rating is assigned for each major joint or group of minor joints affected. 38 C.F.R. § 4.71a, DC 5003. For the purpose of rating disability from arthritis, the hip is considered a major joint. 38 C.F.R. § 4.45. Normal hip motion is defined as flexion from zero to 125 degrees and abduction from zero to 45 degrees. 38 C.F.R. § 4.71, Plate II.

At the outset, the evidence shows no findings of ankylosis, favorable or unfavorable, in the Veteran's left hip; no findings of flail joint; and no findings of impairment of the femur as required for the assignment of compensable evaluations under DCs 5250, 5254, and 5255. The Board will consider the remaining manifestations under DC 5252 for impairment of the hip, manifested by limitation of flexion. See 38 C.F.R. § 4.71a. 

At a January 2014 VA examination, the Veteran reported that his left hip disability had worsened. He described having flare-ups as shooting pain radiating to his upper leg. On examination, range of motion measurements revealed flexion to 125 degrees or greater, extension to greater than 5 degrees, adduction to 25 degrees, and abduction to 45 degrees. Abduction was not lost beyond 10 degrees, and adduction was not limited such that the Veteran could not cross his legs. External rotation was measured to 60 degrees and internal rotation to 40 degrees. Rotation was not limited such that the Veteran could not toe-out more than 15 degrees. Repetitive-use testing did not result in additional loss of function or range of motion. The Veteran did not have any functional loss or functional impairment of the left hip. There was also no localized tenderness or pain to palpation for joints or soft tissue of the left hip. Muscle strength testing results were normal. No ankylosis was present. The Veteran did not have malunion or nonunion of femur, flail hip joint, or leg length discrepancy. The examiner remarked that there were contributing factors of pain, weakness, fatigability, or incoordination, but no additional limitation of functional ability of the hip joint during flare-ups or repeated use over time. 

The Veteran was afforded another VA examination for his left hip disability in January 2020, where he reported having worsening pain with prolonged walking, standing, climbing ladder or stairs, and heavy lifting or carrying. He denied having flare-ups. On examination, range of motion testing revealed flexion to 115 degrees, extension to 30 degrees, abduction to 40 degrees, and adduction to 25 degrees. Adduction was not limited such that the Veteran was unable to cross his legs. External rotation was measured to 40 degrees and internal rotation to 30 degrees. The examiner indicated that range of motion itself did not contribute to functional loss. Pain was noted on examination, but it did not result in functional loss. There was evidence of pain with weight bearing. There was also objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, described as stiffness or tenderness at the left hip joint on palpation. There was no objective evidence of crepitus. Repetitive-use testing did not result in additional loss of function or range of motion. 

The Veteran was not examined immediately after repetitive use over time. The examiner indicated that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. It was also noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength testing results were all normal. Ankylosis was not present. The Veteran did not have malunion or nonunion of femur, flail hip joint, or leg length discrepancy. The examiner noted that the Veteran's left hip disability did not impact the Veteran's ability to work. The examiner noted that he was unable to determine what the range of motion would be if the Veteran had presented after repetitive use over time. He explained that, although the Veteran subjectively reported decrease in range of motion during a flare or repetitive use over time, a review of the record fails to provide objective evidence to support the Veteran's claim. The examiner further noted that a review of current peer reviewed orthopedic literature fails to provide convincing objective evidence (within 50 percent or greater probability) that range of motion would decrease due to repetitive motion or flares of the joint. 

Based on the evidence of record, the Board finds that a compensable rating is not warranted for the Veteran's left hip disability with limitation of flexion at any time during the appeal period as range of motion was limited to 115 degrees at its worst. Although the Veteran reported increased pain, flare-ups, and functional loss, he was able to perform repetitive-use testing with no additional loss of function or range of motion, and it was noted that pain, weakness, fatigability, or incoordination would not limit functional ability after repeated use over time; thus, it is unlikely any additional loss would have decreased the Veteran's limitation in flexion to 45 degrees, which is required for a compensable rating. There is no other evidence to suggest the Veteran's left hip exhibited additional functional loss that would allow for a compensable rating for limitation of flexion. Thus, for the entirety of the appeal period, the Veteran's claim for a compensable rating for his left hip disability based on flexion is denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49.

[As previously stated, effective January 3, 2020, the Veteran was assigned a separate 10 percent rating for impairment of the left hip, pursuant to DC 5253. No separate ratings are warranted under any other diagnostic code.] 

REASONS FOR REMAND

Increased Rating--Plantar Fasciitis

The Veteran is seeking a higher rating for his right foot plantar fasciitis disability. Prior to the most recent regulatory change, plantar fasciitis was rated by analogy and did not have a listed diagnostic code. Hence, the Veteran is currently evaluated under DC 5299-5276 for this disability, with an assigned 10 percent rating as of February 1, 2014. 

As of February 7, 2021, under the amended criteria, DC 5269 was created to evaluate plantar fasciitis. Under DC 5269, a 10 percent rating is assigned for bilateral or unilateral; a 20 percent rating is assigned for unilateral with no relief from both non-surgical and surgical treatment; and a 30 percent rating is assigned for bilateral with no relief from both non-surgical and surgical treatment. Note 1 states that actual loss of use of the foot should be rated as 40 percent. Note 2 states that if the veteran has been recommended for surgical intervention, but is not a surgical candidate, then it should be evaluated under the 20 percent or 30 percent rating criteria, whichever is applicable. 

Here, the Board finds that a remand is necessary to afford the Veteran an examination to evaluate his service-connected right plantar fasciitis under all applicable diagnostic codes under both the old and (from their effective date) the revised rating criteria. Prior VA foot examinations of record, including the most recent in January 2020, do not fully resolve all medical questions regarding the Veteran's plantar fasciitis. Again, as there was no specific diagnostic code for plantar fasciitis prior to February 7, 2021, the Veteran was instead evaluated as having pes planus, pursuant to DC 5276. Notably, the Veteran was evaluated for pes planus on the January 2020 VA examination report. In this regard, it is also important to know whether the Veteran actually has a current diagnosis of pes planus, as the examiner remarked that the Veteran's plantar fasciitis was "currently not active." See January 2020 VA Examination Report, Foot Conditions. Thus, a remand is necessary to afford the Veteran a new VA examination for his right foot plantar fasciitis.

The matter is REMANDED for the following actions:

Schedule the Veteran for a VA examination with an appropriate clinician, to identify the nature and severity of all manifestations of his service-connected right plantar fasciitis. The claims file should be made available to, and reviewed by, the examiner and all necessary tests should be performed. 

Using the appropriate DBQ, the examiner should describe the current nature and severity of all orthopedic manifestations of the Veteran's right plantar fasciitis and the resulting functional impairment of such disability. Significantly, the examiner should also address whether the Veteran has right foot pes planus and whether any such newly-diagnosed right foot pes planus can be distinguished from the service-connected plantar fasciitis. In this regard, the clinician should comment on the January 2020 VA examiner's remark that the Veteran's plantar fasciitis was "currently not active." See January 2020 VA Examination Report, Foot Conditions.

To the extent possible, the examiner should describe the symptoms experienced by the Veteran for each diagnosed right foot disability.

A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why.

 

 

A. HODZIC

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Trowers, 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.