Citation Nr: 21075624 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 14-10 840 DATE: December 21, 2021 ORDER Entitlement to a rating in excess of 10 percent for service-connected right hip ischial seat bursitis with gastrocnemius strain (right hip disability) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's right hip disability has not shown limitation of abduction of motion lost beyond 10 degrees, and there is no indication in the record of ankylosis, extension limited to 5 degrees, flexion limited to 30 degrees, a flail joint, femur impairment, or more than moderate functional impairment of muscle group XI. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a right hip disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a (DC 5253), 4.73 (DC 5311). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1982 to January 1983, May 2002 to November 2002, February 2003 to November 2003, and October 2006 to May 2008. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO). This matter was previously before the Board in February 2018, when it was remanded for further development. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In determining the degree of limitation of motion, several regulatory provisions are taken into consideration: the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 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). Furthermore, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). 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). 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). The Veteran asserts that his right hip disability is worse than what the current rating reflects. In this case, the RO granted a 10 percent rating in February 2011 for a right hip disability, under § 4.59 for painful motion of the hip and under Diagnostic Code (DC) 5253, limited abduction of the thigh. 38 C.F.R. § 4.59, 4.71a, DC 5253. Hip and thigh disabilities may be rated under 38 C.F.R. § 4.71a, DC 5250 (for ankylosis), DC 5251 (for limitation of extension to 5 degrees), DC 5252 (for limitation of flexion of the thigh), DC 5253 (for impairment of the thigh to include limitation of abduction and adduction), DC 5254 (for hip flail joint) and DC 5255 (for impairment of the femur). 38 C.F.R. § 4.71a. After a thorough review of the claims file, the Board finds that DCs 5250, 5251, 5252, 5254, and 5255 are not applicable in this appeal as the medical evidence, including pertinent VA examinations and treatment records, does not establish that the Veteran experienced these symptoms at any point during the pendency of the appeal. Id. The Board will instead focus on the applicable DC. Under Diagnostic Code 5253, impairment of the thigh may be rated based on limitation of abduction, limitation of adduction, or limitation of rotation. The criteria for a 10 percent rating are the inability to cross the legs or external rotation limited to 15 degrees. A 20 percent rating, the maximum rating for limitation of abduction, will be assigned for limitation of abduction where there is motion lost beyond 10 degrees. Id. The Veteran was afforded a VA examination in August 2008. At that time, he reported experiencing pain in the right ischial seat, with no weakness or fatigue. Upon range of motion testing, the examiner reported right hip flexion to 100 degrees (with pain in last 20 degrees), extension to 30 degrees (with pain in last 20 degrees), abduction to 30 degrees (with pain in last 10 degrees), adduction to 10 degrees (with pain in last 10 degrees), external rotation to 40 degrees, and internal rotation to 30 degrees (with pain in last 10 degrees). The examiner found there was pain after repetitive use testing, with no weakness or fatigue. The Veteran also did not use any assistive devices, was able to function independently with activities of daily living, and reported working as a policeman. As noted above, the Veteran was granted service connection in February 2011, with a 10 percent rating based on painful motion. The Veteran was afforded a VA examination in November 2011. At that time, he reported constant right hip pain, especially during standing and walking for his occupation as a school security guard. The Veteran also reported flare ups affecting his mobility and functionality, and bed rest and medication improved the pain. Upon range of motion testing, the examiner reported right hip flexion to 70 degrees (with painful motion at 60 degrees), extension greater than 5 degrees (with painful motion greater than 5 degrees), abduction not lost beyond 10 degrees, adduction was not limited such that the Veteran could not cross legs, and rotation was not limited such that he could not toe-out more than 15 degrees. Other than flexion limited to 50 degrees, repetitive use testing findings were the same in all other categories. The examiner noted less movement than normal and pain on movement as factors contributing to functional loss after repetitive use testing. Muscle strength was noted as 5/5 in all categories for both hips with no ankylosis. The Veteran reported using a cane on a constant basis and that his right hip disability does not impact his ability to work. The Veteran was recently provided a VA examination in July 2021, in which he reported he continues to experience right hip pain, in addition to right calf pain. The Veteran did not report flare-ups but stated that his disability impairs his ability to walk long distances, climb stairs, and perform sexual activity. Range of motion testing was all normal in the right hip, with no objective evidence of pain and passive motion measurements the same as active. The examination report also notes no evidence of pain upon weight bearing and non-weight bearing. The examination shows no additional functional loss after repetitive use testing. The Veteran can cross his legs, and there is no evidence of ankylosis, crepitus, or localized tenderness. The Veteran was also provided a muscle injuries examination in July 2021 pursuant to his report of associated right calf pain. The examination showed injury to his right leg (Group XI). The examination indicates that the Veteran's muscle injury does not affect his muscle function or substance but does experience fatigue and pain on an occasional basis. There is no muscle atrophy, and the Veteran uses a cane on a constant basis. The Veteran's Group XI muscle injury does not impact his ability to work. Based on these findings, the Veteran's 10 percent evaluation for his right hip disability was continued, as his muscle injury was characterized as moderate. 38 C.F.R. § 4.73 DC 5311. However, the Board notes the Veteran's right hip disability is shown to still be rated under DC 5253 in the most recent rating code sheet. Nevertheless, even when considering the Veteran's reports of symptoms, the Board finds that an evaluation in excess of 10 percent is not warranted for the Veteran's right hip disability, as at no point during the appeal period has there been a showing of limitation of abduction and motion lost beyond 10 degrees, as required for the next higher rating. 38 C.F.R. § 4.71a, DC 5253. Furthermore, the Veteran's right calf pain associated with his right hip disability has not been shown to be at a moderately severe level of impairment, as the July 2021 examination notes that his symptoms occur on an occasional basis and more nearly approximate a moderate level of impairment. 38 C.F.R. § 4.73, DC 5311. As such, the Veteran is not entitled to a rating in excess of 10 percent for his right hip disability. The appeal is denied. REASONS FOR REMAND Entitlement to TDIU is remanded. In an April 2021 notice of disagreement submitted by the Veteran, he reported his right hip condition was impacting his ability to work. As such, the Board will take jurisdiction of entitlement to TDIU per Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran also submitted TDIU application (Form 21-8940) in November 2021. However, it is unclear whether the Veteran is still employed, as he indicated a notable current monthly income "if presently employed" in section 20B. As such, upon remand, an updated VA Form 8940 is needed to clarify the Veteran's employment history and/or whether he is presently employed. The matters are REMANDED for the following action: Give the Veteran an opportunity to clarify his work history and current employment status by submitting an updated VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in addition to any additional evidence that is relevant with regard to his claim for TDIU. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ariasaif, Mary 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.