Citation Nr: 21076413 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-10 197 DATE: December 23, 2021 ORDER A disability rating greater than 10 percent for limitation extension of the right hip is denied. A disability rating greater than 10 percent for limitation of extension of the left hip is denied. A compensable disability rating for limitation of flexion of the right hip is denied. A compensable disability rating for limitation of flexion of the left hip is denied. REMANDED A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's right hip limitation of extension is assigned a 10 percent rating, which is the maximum schedular rating authorized under Diagnostic Code (DC) 5251. 2. The Veteran's left hip limitation of extension is assigned a 10 percent rating, which is the maximum schedular rating authorized under DC 5251. 3. The preponderance of the evidence does not show that Veteran's right hip is limited to motion of flexion to 45 degrees or less. 4. The preponderance of the evidence does not show that Veteran's left hip is limited to motion of flexion to 45 degrees or less. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for limitation extension of the right hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5251. 2. The criteria for a disability rating greater than 10 percent for limitation of extension of the left hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5251. 3. The criteria for a compensable disability rating for limitation of flexion of the right hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5252. 4. The criteria for a compensable disability rating for limitation of flexion of the left hip have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5252. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1983 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision. The Veteran testified before the undersigned Veterans' Law Judge in February 2020. A copy of the transcript is included in the record. The Board remanded the claim in April 2021 in order to obtain updated VA examinations. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board may consider whether separate ratings may be assigned for separate periods of time - a practice known as "staged ratings," - whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is in receipt of multiple ratings for her left hip disability pursuant to DCs 5251 and 5252. The average normal range of motion of the hip is flexion from 0 to 125 degrees and abduction from 0 to 45 degrees. 38 C.F.R. § 4.71, Plate II. At the outset, as to other potentially applicable diagnostic codes pertaining to the hip, the record does not contain evidence of limitation of adduction or abduction to warrant a compensable rating, ankylosis of the right or left hip, or evidence of right or left hip femur fracture or flail joint; therefore, ratings under DCs 5250, 5253, 5254, or 5255 are not appropriate at any time during the rating period. 38 C.F.R. § 4.71a. Limitation of Extension The Veteran's limitation of her right and left hip extension are each assigned a 10 percent rating pursuant to DC 5251. DC 5251 provides a sole 10 percent rating for extension of the thigh limited to 5 degrees. Thus, the Veteran is in receipt of the maximum rating allowed. In this case, there is no legal basis upon which to award a higher rating for limitation of extension of the right or left hip, as the maximum rating for that disability has already been assigned. The Veteran's claim for such a benefit is consequently without legal merit and must be denied. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006); Sabonis v. Brown, 6 Vet. App. 426 (1994). Limitation of Flexion The Veteran's limitation of her right and left hip flexion is assigned a noncompensable (0%) percent rating pursuant to DC 5252. Under DC 5252, a Veteran is entitled to a 10, 20, 30, or 40 percent rating for flexion of the thigh limited to 45, 30, 20, or 10 degrees, respectively. In her June 2021 VA examination, both the Veteran's right and left hip showed, at worst, flexion to 115 degrees, extension to 20 degrees, abduction to 35 degrees, adduction to 15 degrees, external rotation to 50 degrees, and internal rotation to 30 degrees. The Veteran was found to be able to cross her legs. Pain was noted to limit functional ability with repeated use over time with walking. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was pain and interference with sitting and standing. No ankylosis was noted. Based on these findings, a compensable rating for the limitation of the Veteran's flexion is not warranted or supported by the record. There is no indication, even considering the Veteran's reports of limits caused by pain and flare-ups, that her left hip flexion was limited to any range less than 115 degrees which is well above the minimum limitation of 45 degrees necessary for a compensable rating. Neither the Veteran nor her representative have identified any evidence which supports such a finding or a higher rating. The Board has again considered the lay statements of evidence and has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran's degree of disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran's combined disability rating is 90 percent; however, the Veteran does not have one disability rated at 40 percent or higher. Therefore, the Veteran does not meet the schedular criteria for a TDIU. As such, the Board may not consider his claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, there is a reasonable possibility that he is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Veteran's symptoms of his service-connected disabilities have been consistent throughout the appeal period. The June 2021 VA examination noted that the Veteran was unable to stand or sit for prolonged periods of time due to pain. Further, the Veteran stated that she would have to do a lot of walking in her work, and this would cause pain. Accordingly, remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration. (Continued on the next page) The matter is REMANDED for the following action: Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, 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.