Citation Nr: 21076481 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 11-29 880 DATE: December 23, 2021 ORDER An increased rating of 70 percent, but no higher, for traumatic arthritis, left hip status post total hip replacement, from May 1, 2013 and thereafter, is granted. A separate noncompensable disability rating for leg length discrepancy is granted. FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran's left hip replacement has been manifested by markedly severe pain. 2. The Veteran has leg length discrepancy as a result of his left hip total hip replacement measured at less than 1.25 to 2 inches. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no higher, from May 1, 2013 and thereafter, for left hip replacement residuals have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5054. 2. The criteria for entitlement to an initial noncompensable disability rating for leg length discrepancy, as secondary to the service-connected traumatic arthritis, left hip status post total hip replacement, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, DC 5275. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to May 2000. This appeal to the Board of Veterans' Appeals (Board) is from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely filed a notice of disagreement (NOD) in September 2010 and a substantive appeal in November 2011. Following a July 2015 Board remand, the RO issued an August 2018 rating decision granting an increased disability rating of 50 percent for the Veteran's left hip disability effective March 18, 2016. Following another Board remand in October 2019, the RO issued an August 2020 rating decision granting an earlier effective date of May 1, 2013 for the assignment of a 50 percent disability rating for the Veteran's left hip disability. Additionally, the RO granted two separate non-compensable ratings for left thigh impairment and left hip limitation of flexion from September 4, 2008 to March 19, 2012, under 38 C.F.R. § 4.71a, Diagnostic Codes 5252, 5253. In a March 2021 Board decision, an increased disability rating for a left hip disability prior to March 19, 2012 (the date of the hip replacement) was denied and increased disability ratings for bilateral lower extremity peripheral vascular disease were granted in part and denied in part. The Board remanded the issue of entitlement to a disability rating in excess of 50 percent for the left hip status post total left knee replacement from May 1, 2013 (the first day following the end of the one year period following implantation of the prosthesis during which a 100 percent rating was assigned). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is 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. 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107 (b). When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (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 background 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 38C.F.R. §4.71a; 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 criteria."). A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 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 actual 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. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38C.F.R. §4.59 requires that the examiner record the results of range of motion (ROM) testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Effective February 7, 2021, the regulations governing disability ratings for musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, although not all of the diagnostic criteria were affected. The substantive criteria for disability ratings under DC 5054 for prosthetic replacement of the hip remains the same. Any changes to the criteria that are applicable to the claims on appeal are indicated below. An increased rating in excess of 50 percent for traumatic arthritis, left hip status post total hip replacement and a separate noncompensable disability rating for leg discrepancy. The Veteran contends that the symptoms of his left hip disability warrant an increased disability rating. His left hip disability is currently rated as 50 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5054. Prior to this, he was assigned a 100 percent disability rating from May 1, 2012 to May 1, 2013 for his surgery. Prior to February 7, 2021, DC 5054 provided a 100 percent rating for one year following the implantation of prosthesis then a minimum 30 percent rating. A 50 percent rating is warranted for moderately severe residuals of weakness, pain or limitation of motion. A 70 percent rating is warranted for markedly severe residual weakness, pain, or limitation of motion. A 90 percent rating is warranted for painful motion or weakness such as to require the use of crutches. Under the revised rating criteria effective February 7, 2021, DC 5054 encompasses both the resurfacing and implantation of prosthesis of the hip. Further, the 100 percent rating under this DC is awarded for four months following either the implantation of a prosthesis or resurfacing. Finally, the Note to DC 5054 provides that at the conclusion of the 100 percent evaluation period, the disability involving resurfacing should be evaluated under DCs 5250 through 5255, with no minimum evaluation for resurfacing. The terms "moderately severe" and "markedly severe" as used under Diagnostic Code 5054 are not defined in the Schedule. Rather than applying a mechanical formula to determine when symptomatology is "moderately severe" or "markedly severe," the Board must evaluate all the evidence to ensure an "equitable and just" decision. 38 C.F.R. § 4.6. Normal ROM of the hip is from 0 to 125 degrees of flexion, 0 to 30 degrees of extension, 0 to 45 degrees of abduction, 0 to 25 degrees of adduction, 0 to 60 degrees for external rotation, and 0 to 40 degrees for external rotation. See 38 C.F.R. § 4.71, Plate II. Turning to the evidence of record, a March 2013 operative report for the left hip total replacement reflects that a trial reduction revealed a slight increase in leg length. A March 2016 VA examination report reflects that the Veteran reported that he has received a lot of physical therapy following his left hip replacement. He went to pain management for his hip. He was informed he was mispositioned during surgery and developed pain. He reported that his baseline pain level is a 7 out of 10. He reported that a flare up will cause a level of 8 to 9 pain out of 10 (indicating the highest level of pain). Prolonged walking, standing, stairs, and getting in and out of vehicles increased his pain. He reported that it wakes him up at night and hits his leg while he is sleeping. He reported functional impairment described as difficulty with bending, squatting, tying his hoes, running, and jogging. He reported that his pain is chronic. He could no longer do yard work and sitting for prolonged periods caused discomfort. Initial range of motion (ROM) testing was abnormal or outside of normal range. Flexion was to 60 degrees, extension to 10 degrees, abduction to 20 degrees, and adduction to 20 degrees. Adduction was limited such that the Veteran could not cross his legs. Range of motion itself did not contribute to a functional loss. There was decreased ROM and pain with ROM. Pain was noted on flexion, extension, abduction, adduction, and external and internal rotation and caused functional loss. There was no evidence of pain with weight bearing. There was no objective evidence of localized tenderness, pain on palpation, or crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions. The examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups. He reported that repetitive motion was conducted. There was no change, and a flare-up did not occur. It would be pure speculation to state to what degrees this joint would be affected with a flare up or when it is used repeatedly over a period of time. The Veteran had less movement than normal, adhesions, disturbance of locomotion, interference with sitting, and interference with standing. There was no ankylosis, malunion or nonunion of femur, flail hip joint, or leg length discrepancy. The examiner described the Veteran's residuals as moderately severe residuals of weakness, pain, or limitation of motion. VA treatment records from 2016 reflect that the Veteran was active and was swimming twice a week. He worked as an administrator at that time. During physical therapy, he described his pain as a 3 to 7 out of 10, constant and daily, and aggravated by walking, prolonged positioning in sitting, and driving. VA treatment records from 2017 reflect that the Veteran continued to complain of chronic hip pain. He reported pain interference with the ability to walk as a 5 out of 10. He reported difficulty walking longer distances. VA treatment records from 2018 reflect that the Veteran reported chronic hip pain that caused a slower gait and interference with walking. He reported benefiting from engaging in physical activities at the gym (i.e. walking and cycling) while using time-based pacing. His pain was described as a 4 out of 10. In a September 2019 statement, the Veteran's representative argued that the medical evidence confirms that the condition presents a level of impairment that is not properly addressed in the currently assigned percentages of disability. He has difficulty getting out of a vehicle and is kept awake at night as a result of pain. He experiences functional loss regardless of repetitive use. His left hip pathology compromises his flexion, extension, abduction, and adduction. Private treatment records from 2012 to 2019 were consistent with statements made from the Veteran while he was treated at the VA. He reported stiffness and pain. A May 2021 Disability Benefits Questionnaire (DBQ) report reflects that the Veteran had traumatic arthritis, left hip status post total hip replacement, and leg length discrepancy. The clinician noted that the condition has progressed/worsened since onset. The Veteran did not report flare-ups. He reported functional loss/impairment described as pain with prolonged walking, sitting, and standing. Initial ROM testing was abnormal or outside of the normal range. Flexion was to 90 degrees with extension to 20 degrees. Abduction was to 40 degrees and adduction was to 20 degrees. Range of motion exhibited pain on flexion, extension, abduction, adduction, and external and internal rotation. A limitation in adduction did not prevent the Veteran from crossing his legs. Passive ROM was the same as active. There was evidence of pain on both active and passive motion that did not result in/cause functional loss. There was no objective evidence of crepitus. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The location of the pain was at the left hip joint and was described as mild. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or ROM. The Veteran was not examined immediately after repetitive use over time. Procured evidence suggests that pain caused functional loss. Estimated ROM after repeated use over time was flexion to 80 degrees, extension to 15 degrees, abduction to 35 degrees, and adduction to 15 degrees. Additional contributing factors of disability include interference with sitting and standing due to pain and disturbance of locomotion. There was no ankylosis. There was leg length discrepancy. The left leg was 89 centimeters and the right leg was 87 centimeters. The clinician reported that the Veteran's total hip joint replacement residuals was described as moderately severe with residuals of weakness, pain, or limitation of motion. He used a cane regularly. Based on the forgoing, the Board finds that a 70 percent rating is warranted from May 1, 2013. The rating criteria for DC 5054 provide that such a rating is warranted for markedly severe residual weakness, pain, or limitation of motion following implantation of prosthesis. The use of the disjunctive "or" indicates that this level of impairment may be warranted for any of these three symptoms. With this in mind, the Board notes that throughout the appeal period the Veteran experienced pain. While his descriptions of the severity of the pain varied, there was a general baseline of 3-7 on a 10 point scale, with indications of flare-ups up to a 10. While the most recent VA examination indicates mild pain, the examination report also indicated that the disability had progressed/worsened over time. Thus, the Board will resolve any uncertainty concerning the severity of the Veteran's pain in his favor. 38 C.F.R. § 3.102. A higher 90 percent rating is not warranted because the evidence does not indicate that painful motion or weakness requires use of crutches. The Board acknowledges that the Veteran's medical records show he uses a cane to walk, and the most recent VA examination of record indicates that he regularly uses a cane as an assistive device, though its use is not constant. However, this does not more nearly approximate requiring the use of crutches, to include consideration of additional functional impairment due to flare-ups and repeated use over time. Accordingly, a rating in excess of 70 percent is not warranted. To maximize the Veteran's disability rating, the Board has also considered whether disability ratings under DCs 5251, 5252, and/or 5253 in the alternative to a rating under DC 5054 would result in a higher rating. The Board finds that these ratings would not result in a higher disability rating. DC 5251 (limitation of extension of the thigh) provides a rating of 10 percent when extension is limited to 5 degrees, but for the entire period on appeal, the Veteran's left hip extension was limited to 10 degrees at worst. DC 5252 (limitation of flexion) provides a 10 percent disability rating for flexion limited to 45 degrees, but for the entire period on appeal, the Veteran's flexion was at worst 60 degrees. Therefore, under DC 5252, the Veteran is not entitled to a compensable disability rating. DC 5253 (limitation of abduction, adduction, and rotation) does not provide a rating higher than 20 percent. Thus, the Board notes that that the Veteran's disability rating considered under limited in the alternative would result in a lower rating than the 50 percent under DC 5054 for hip replacement during this period. The Board also considered whether the Veteran is entitled to a higher, or separate rating, for right hip disability under the remaining DCs that address hip and thigh disabilities. However, there is no indication in the record that the Veteran has experienced ankylosis of the left hip, flail joint of the right hip, or impairment of the right femur. Therefore, no higher, or separate rating, is warranted under those DCs. See 38 C.F.R. § 4.71a, DCs 5250, 5254, and 5255. Finally, the record reflects that the Veteran has leg length discrepancy. Under Diagnostic Code 5275, shortening of the bones of a lower extremity between 1.25 and 2 inches warrants a 10 percent rating. A 20 percent rating is warranted for 2 to 2.5 inches; a 30 percent rating is warranted for 2.5 to 3 inches; a 40 percent rating is warranted for 3 to 3.5 inches; a 50 percent rating is warranted for 3.5 to 4 inches; and a 60 percent rating is warranted for more than four inches. 38 C.F.R. § 4.71a, DC 5275. As noted in the May 2021 DBQ, the left leg was 89 centimeters (35.04 inches) and the right leg was 87 centimeters (34.25 inches). This makes the left leg longer than the right leg by 0.79 inches. As such, a noncompensable separate rating for leg discrepancy is warranted. Accordingly, the criteria for a disability rating in excess of 50 percent from May 1, 2013 and thereafter for the service-connected left hip disability have not been met. A separate noncompensable disability rating for leg length discrepancy is warranted. Mike Sobiecki Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.